Published: 02 July 2021

Legislative Council Thursday 1 July, 2021

Ms FORREST (Murchison) - Madam Acting President, I move -

That the Legislative Council Select Committee report on production of documents be considered and noted.

In speaking to this motion of noting this report I know the work on this committee was done some time ago but the information is still current and relevant. It was interrupted in its reporting and subsequent tabling by COVID-19. Of course, matters related to COVID-19 matters took priority.

I am not going to speak at length about this report. It does speak for itself but I want to reiterate a number of key matters. It is disappointing that the former member for Windermere the honourable Ivan Dean was not given the chance to speak on this because he was on this committee. He was also the chair of a couple of committees that I also sat on when we faced the very real challenges of ministers refusing to produce documents. I have been a chair of one. He had been a chair of at least one where that had been the case and he certainly contributed to this report. It was my intention to bring it on that last sitting week that we would have had had the election not been called.

His voice is missing from this debate. I will just say that because I am sure he would have had quite a bit to contribute to the debate and the knowledge we all gained through the process of this inquiry.

I will refer to some matters here that are listed in the executive summary which gives a very good summary of what was found. The report is large, yes, but a lot of that report is a full description of the mechanisms in each of the parliaments around Australia where there is a mechanism and they are all different. Some are very similar but they all have their own uniqueness if you like. In Tasmania we have no mechanism to break the deadlock as such as most other parliaments do.

The Tasmanian Houses of Parliament and the committees established by them have an inherent and unequivocal power to order members and witnesses to produce documents and have the authority to treat refusal to produce documents as a contempt of the House. That is a fundamental truth. That is the reality and when that is being challenged by the Premier of the state - former and past - it is a really disturbing thing, particularly when they rely on the Right To Information act as applying to a committee of the parliament or to the parliament itself.

Mr Willie - It is not just ministers. Public servants have appeared before committees.

Ms FORREST - Public servants as well but I am keen to hold the government ministers to account, past and present. The former Labor premier did the same in my time here.

Mr Willie - I should not have opened my mouth.

Ms FORREST - That is correct.

Just to go on and this was reiterated time and time again by those with deep knowledge in parliamentary processes, privilege and how a democracy works. The statement I just made about that inherent right and unequivocal power reflects the fundamental principle of parliamentary democracy; that is the people elect representatives as members of parliament, to advocate and inquire on their behalf without impediment. It is especially important in the upper House, which has the key role of the house of review.

The committee noted during the inquiry, and thus in our report, that appropriate and reasonable claims for immunity regarding the production of documents may arise in limited circumstances. We are not saying and never said there should be a carte blanche and free for-all. There was some debate about this matter as to how far that would extend. The failure to produce documents has in recent history, some years ago, negatively impacted on the Tasmanian Legislative Council’s key scrutiny and oversight functions related to these actions, decisions and workings of government in circumstances where a resolution could not be reached.

There have been circumstances in the past where resolutions have been reached. I instance an example on public accounts committee many years ago, when there was an inquiry into the deed with Federal Group related to the development at Coles Bay. Treasury at the time were reluctant to hand over documents. But there was an agreement reached the documents would be handed over, provided to the custody of the clerk and secretary of the committee who was then in the House of Assembly, because it was administered by the House of Assembly at that time. Then members of the committee could go and view these documents. You could not photograph them or take them away, you had to sign in, sign out and could view them.

I remember we were snowed with boxes of documents. I am sure there was quite some interesting information in there if one had had six weeks to sit and go through them. However, we received what we asked for. We asked for the documents; they were provided. You can reach reasonable outcomes when there is a willingness to work together. But it is very frustrating when there is an absolute refusal to even consider alternative mechanisms.

The committee examined processes and remedies available in other Australian jurisdictions that have been applied. That makes this report quite large as a lot of the attachments are basically, all those other mechanisms. It is a detailed report, I do commend it to members to read all of it. Particularly for newer members to this place it will help you understand exactly how Parliamentary privilege works, what a responsible government is. I know when I came to this place I had a lot to learn in that area. It does give a very good historical reference to all of those mechanisms. I say that with the greatest of respect to new members. It is a really well put together body of work that would help any person even aspiring to be a member, as well as members who have been here a long time. It helps to refresh yourself on these matters.

It is also noted by the committee that parliaments do have a range of both punitive and coercive remedies that can be applied from responding to a failure to produce documents. I will go through some of those in a moment. Not all of these have been fully exercised by this House. Some have, but not all. It is a matter how far you are willing to push in those matters. We have seen interesting circumstances in other jurisdictions where members, including the leader of houses, have been suspended and popped out of the building, even onto the footpath, which was not okay. That is all contained in the body of the report.

The committee was constituted in light of the challenges faced by parliamentary committees. I mentioned committees the former member for Windermere, particularly public accounts committee and other select committees or sessional committees of this parliament and this House that have been established to scrutinise various actions of government. A range of processes utilising independent arbitration have been established in a number of Australian parliaments to deal with these matters, related to refusal to provide requested or ordered documents sought by a House of parliament or by a parliamentary committee. Some of these processes have been used frequently, and some have not used or been tested at all. One in New South Wales was of particular interest. and we did spend time there; pre-COVID-19, when you could still travel. We visited New South Wales, Victoria, and the Australian Capital Territory, and talked to most to the clerks of those parliaments. We also spoke with members and former members, including those who had been cast out.

Mr Valentine - Better cherish it, I think. Being able to travel on the mainland.

Ms FORREST - Yes, exactly. It was interesting to meet and speak with the people who had been directly involved in the process. We also talked to some of the people who had been involved in the arbitration of these decisions in New South Wales and that was helpful. Of particular note, in New South Wales, is that an independent arbitration process has been in place for over 20 years now, whereby all members of the New South Wales Legislative Council, regardless of their party, can access - with restrictions - all the documents; including those over which immunity has been claimed. No privileged information has leaked during this time.

That means that for over 20 years, when documents have been sought, including those the government is seeking privilege over, regardless of the level or basis of privilege, those documents have been provided to the Clerk of the Legislative Council. All members can view those documents. Not many do; it is mainly those who are interested, or who raised a question. There is a mechanism for signing people in and out. They are kept in the safe custody of the Clerk's office and there is a big storage area for them; some of them are now kept off-site.

Bearing in mind it is mostly opposition members who go and view the documents, there has not been one leak in all that time. The government also provides documents where no privilege has been claimed. However, when there is a document or documents where privilege is claimed, any member can contest that claim. It is only when they contest that claim on a document where privilege is sought, that the Clerk engages the independent arbiter, to consider whether that claim should be upheld.

Therefore, in all that time, when members of parliament are viewing confidential documents, there has never been a leak. That is because they are given one note: one leak and it is all over, red rover. It would not happen again. It does require the members to take it very responsibly, as we should we with every part of our role here. It is interesting to read through the chapter on New South Wales to see how it works. The models in Victoria and the Australian Capital Territory are similar, with nuances. There are benefits and problems in each of them.

This committee is suggesting that this issue is looked at again, to consider what would be an appropriate mechanism in Tasmania - should we need it. Hopefully, other measures will prevent the need for it. I cannot speak for the other place; but in my time in our Chamber, I can only recall three or four times when we have had a deadlock that has been unresolved. That it is infrequent; but it is very frustrating when a deadlock has been reached on information legitimately sought to assist in an enquiry. We reported to parliament by a way of a special report about those matters. I am sure the former member for Windermere would have spoken about that.

The committee recommended an additional dispute-resolution process be considered. The committee suggests this is done by the Standing Orders Committee, based on the principles of responsible government and underpinned by the inherent and unequivocal power to call for documents, including the use of a suitably qualified and independent advisor on claims of public interest immunity. Based on the evidence, the committee also recommends that government and state service employees, government business enterprises, state-owned company employees, and members of parliament receive education and training in this area. This was recommended because we found there were some in the public service, and even some members of parliament, who do not have a very full understanding. When you see ministers referring to matters such as Right to Information as applying to a parliamentary committee you know they are not well informed.

It has no relevance to a parliamentary process. It has no bearing on a parliamentary process. The fact that a document has been assessed by an RTI officer - even from an RTI request from an individual member of parliament - has no bearing on the capacity of a parliamentary committee or a House of Parliament to call for that document. It has no application.

That matter appears to be poorly understood. We would all do well to inform ourselves of the privileges and powers of our parliament.

The committee also recommended that government develop guidelines to clarify the rights and responsibilities of witnesses presenting evidence on behalf of the government and for the production of documents before parliamentary committees. That flows on from my last comment, that everyone needs to know what the rights and responsibilities are. It could be a simple process.

As all members would be aware, when the Chair of a committee welcomes the witness a statement is read about what parliamentary privilege is and when it applies and when it might not apply. A statement could be added to it to inform or remind them of their obligations. That is a fairly simple thing but it would help to remind witnesses, whether they be members of parliament, members of the public or public servants presenting on behalf of a minister.

I will not repeat all the committee's findings because members can read the report. However, I reiterate that the Tasmanian Houses of Parliament and our committees have an inherent and unequivocal power to call for witnesses and for the production of documents. That should not be in dispute. It appears that it is in dispute at times; but that is the reality.

Appropriate and reasonable claims of immunity may arise relating to the production of documents. These situations are limited. I note committee finding 5(a) that Australian parliaments have respected the notion of documents revealing the deliberations of Cabinet as being immune from disclosure.

What is really important here is that it is not a Cabinet document - it is the deliberations of Cabinet that are being revealed in it. There is lengthy evidence in our report about this process and the apparent misunderstanding of what that looks like. Going back to the days of Joh Bjelke-Petersen, any document they did not want to see the light of day was put in a trolley and wheeled through the Cabinet room to notionally give it Cabinet-in-confidence status. That is a complete nonsense.

It is pretty clear that it is documents that reveal the deliberations of Cabinet. That would be how individuals voted. I have never been in a party and I have not sat around a party table to have those debates. It must be difficult for members of a party to come out and defend a position they did not agree with in the debate in their party room or around the Cabinet table.

That is Cabinet solidarity, and we understand that. If they voted against a particular policy decision for example, and that was recorded in Cabinet, that would clearly create some problems for the government of the day.

Any party in power would recognise the importance of keeping that information confidential; but it may not apply to documents informing a Government policy. Public servants prepare briefing documents about the pros and cons of a policy position or a decision that may be being considered before Cabinet at any particular time. To have that information prepared and provided to Cabinet and to suggest that those public servants would not be as frank and fearless in their advice makes no sense either.

Once the public servant has done their work - and I believe they do it to the best of their ability with all the information they have, they know what their job is, they provide both sides of a debate. Then their responsibility ends at that point, it is then over to the political process, where the ministers and the cabinet will decide on what they are going to do with that. In New Zealand all Cabinet papers - unless there are very good reasons for immunity - are released within 30 days of them being in Cabinet. I think we have to wait 10 years here. We asked about what implication that would have on the giving of frank and fearless advice. There was a predominate view held that actually improved it. The public servants knew their documents and their briefing papers would be made public within 30 days, so they thought really carefully about what was in it and made sure it was accurate, contemporary and argued both sides of a situation or consideration.

There is still a little way to go for all members of the public service, the Government, and probably the Opposition too, in regard to what actually constitutes a document that reveals the deliberations of cabinet, not just a document that has gone to Cabinet. Often the Government come out with great fanfare after an announcement, revealing what Cabinet has decided because they have this brand-new policy. That is Cabinet information, that was a matter that went through Cabinet via the usual process. They did not say that member A did not support it, or member B did. It is the decision of Cabinet, decision of the government, it is out, it is the policy and they are standing by it. That is Cabinet information; you cannot make that decision without going through Cabinet. There needs to be a good understanding of what we are talking about when we say cabinet in confidence immunity.

As I mentioned earlier, there are a range of processes that can be applied, both political pressure and coercive measures – if you like to call them that – that are either punitive or forcible, in order to try and get the Government to act or punish them for not acting. Some of these have been used in the life of this parliament, there are some that have not. The Government can look forward to perhaps this place exercising the powers we have not employed in the past. Punitive remedies are listed on page 8 of our report. These include motions to postpone the consideration of Government business, including particular bills or other notices until the requested information has been produced. Of course, in this House it will fall to the Leader to produce that document because she is the Government representative here. The argument about whether she has it in her custody or not is a bit of a moot point, if she is in the Government she has access.

There are also censure motions. I am sure the Leader would look forward to that. There are motions restricting the ability of the relevant member to progress Government business. That might not be the Leader, it could be the minister in our chamber here. They are not going to deal with your business until you ensure this document is provided. Motions depriving the relevant member of procedures that might be available under Standing Orders, such as suspension of standing orders to consider urgent business. We might start saying no to all those requests. We have to follow the rules, we do that a bit anyway.

Mrs Hiscutt - You do.

Ms FORREST - Use of standing orders to move a motion related to a matter of public importance, taking up time out of a sitting day that would be otherwise utilised to progress Government business. That is an option available to any of us any time, with the support of three other members, of course. Motions to extend question time if this place felt there was not adequate time for answering of questions. This obviously, could happen in the other place too, you still need the agreement of the House, but it is a motion that would be debated. Motions to suspend the relevant member, that has been utilised in other parliaments more than once.

They are coercive remedies, a lot of these we have used. Writing to the Premier has certainly been used, writing to the relevant minister requesting rationale to support the claims of immunity for the production of documents, we have done that many times. Tabling of special reports relating to non-compliance with a subsequent motion to note report without notice, we have done that a number of times. Orders for the information of documents to be produced to a specific committee, including instructions to the committee about how information is to be handled, that is received in camera or not published for a specified period, etcetera.

We have not ordered those in the parliament but we have used all the mechanisms available within the committee to do that, like offering other alternatives, as I described in a Public Accounts Committee some years ago. Orders requiring for particular committees to hold hearings and particular witnesses to appear for the purpose of answering questions about information or documents. We have summonsed ministers at different times.

Thankfully, this Government has been a little bit more forthcoming with allowing ministers to appear before committees. The last one was a shocker. They just refused. Hopeless. At least this Government seems more willing to have their ministers appear. There are swings and roundabouts.

Further orders refining the scope of the order for the production of documents. It may be that the order is changed and the scope is changed to make it, perhaps, more palatable for the Government to respond positively. Motions requiring the relevant member to explain the reasons for non-compliance for the previous order, that would mostly occur in the House. Motions the Auditor-General or another independent third party to examine the contentious material and report on the validity of the grounds claimed by the relevant member for non-production.

Those measures have not been used, but is going along the line of mechanisms used in other jurisdictions. They use the Auditor-General and an unusual model in Western Australia and it is worth having a read through to see what they do. We could do that here, particularly if there was a claim of commercial in confidence over a particular document made. The Auditor-General is well-equipped to make an assessment around commercial in confidence material. His office deals with that all the time.

Matters regarding public interest immunity or legal professional privilege may not be as much in his area and there may be someone else. That remedy has not been utilised (11:42:20) in this place yet, but certainly is an option.

I reiterate in our findings that the Tasmanian Right to Information Act 2009 has no application to the parliament and its committees.

I mentioned the New South Wales arbitration process. We spoke to Bret Walker QC who spoke to us about the term 'arbiter' or 'arbitration' as perhaps an inappropriate term. He said, 'It should be a "raconteur"'. That was his view.

Mr Valentine - Raconteur?

Ms FORREST - Yes, a raconteur, or an advisor rather than someone who is arbitrating over a matter relating to parliament. He is right in that and why we have used the terminology here: 'an arbiter to advise' not to 'direct' because no one else should be 'directing' the parliament.

Mr Willie - It is still parliament's decision.

Ms FORREST - That is right, yes. Language is important in all of this.

It is terribly important matter in terms of the principle that it is well-understood and again I do commend the report, particularly to new members, or older members if they feel they need a refreshment, of what responsible government looks like. It has a very good historical account as well an explanation of what responsible government looks like and parliamentary privilege and those matters.

I thank our Committee Secretariat and also the Deputy Clerk for her assistance in getting this report to the state it is because it is a complex area and important to get it right, particularly the language. I thank those involved and also, as I mentioned earlier, the member for Windermere for his contribution on the committee.

In terms of the recommendations of the committee, there are six and I will go through them.

The first recommendation was: the Legislative Council and its committees consider the use of available punitive and coercive remedies to address non-compliance related to the production of documents. That is a matter for this House to decide if and when we experience a stalemate in a committee or in this House when we are asking for information. This is whether it be an Estimates Committee, GBE Committee, Sessional Committee, Selection Committee, or in the House during a debate and they will all be there on the record for anyone who wants to go back who thinks 'what can I do next?' so they are all there, or most of them. There could be others but they are the ones we have heard about from other jurisdictions and our research.

The committee also recommended that an additional dispute resolution process regarding non-compliance be considered through amendment to the Legislative Council Standing Orders.

There may be other mechanisms but we are saying that the committee recommends that the Standing Orders committee have a look at this but there does need to be agreement. Otherwise you end up with a Victorian situation where there is a mechanism but it has not been used because no-one wants to play the game. There does need to be some agreement.

There is plenty of evidence and a track record in New South Wales that the mechanism they have, which I think has been tweaked a little bit over the 20 plus years it has been in place, has been effective. It has taken the wind out of a lot of matters so it is a benefit for the government there. Often it could be a bit of a witch hunt or whatever you want to call it or I cannot think of what the exercise is when you go -

Madam ACTING PRESIDENT - Down a rabbit hole?

Ms FORREST - No, an expedition digging for dirt basically and it is just not there. That takes the wind out of that. The fact that there have been no leaks because the process is respected by all parties. I bet if there was one leak that would be it, in New South Wales as well. The government could not have faith in it. It only takes one person to do the wrong thing for whatever reason and that would be the end of it, I imagine. There is goodwill and it has worked over previous and current governments in New South Wales.

The other third recommendation is that this report be referred to the 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.

There is a process that would need to be unfolded to do that. We think that is the way to proceed if there is to be a separate dispute resolution process. If it is there it may not be used because there may not be any need to because the government of the day might produce the documents that are requested and hopefully that would be the case.

If it becomes necessary it would be there if it was in place. Some people will claim that this will result in all sorts of calls for papers and there will be all this cost associated with it. The clerk's office will be full of papers; he will not be able to see his way over the desk and all that sort of thing. However, the reality is that here in this state we have only had three or four times when it actually has reached this point. It is not a really common occurrence.

There may be the opposition making mischief perhaps. Why? They may be in government one day. To suggest that that will be a problem is not based in evidence or fact of what we have seen to date. The majority of the time we have received the documents we have asked for except for a few occasions when we have not but it has been a challenge.

The fourth recommendation was consideration be given to the development of procedural orders to assist when claims of public interest immunity arise in the Legislative Council and its committees. Those procedural orders make it clear as to what steps you can take and they are in place in other jurisdictions as well.

The fifth recommendation, the government and State Service employees, government business enterprise and state-owned company employees and members of parliament receive education and training regarding the role and functions of the Tasmanian Parliament under the Westminster system of responsible and representative government.

That is not just for new members. That is for all members because we do need to be reminded from time to time. It does not hurt to have a refresher. Some of us have been here a long time. We can always learn things and be reminded of things that matter.

Six, guidelines be developed by government to clarify the rights and responsibilities of witnesses appearing on behalf of a committee presenting evidence and for the production of documents before all parliamentary committees.

If those guidelines were there at the outset and every public servant who appeared before the committee knew about them then you are less likely to get stuck on whether they can or they cannot produce them. That has helped in other jurisdictions as well, with documents being provided.

There are other members who may wish to speak on this. We have lost a couple of members along the way. Mr Dean was still here at the time when it was tabled but the minister was on it initially, before she was appointed and had to step down when she became a minister, which is the normal practice.

I commend the report to members, and again thank our committee secretary and all the members for their hard work on this. We had some quite entertaining presentations, particularly from Michael Egan, who was the member who was kicked out. He had quite a different view on some things, and almost an entertaining take on things sometimes.

It was a very informative committee, for the members to be well informed. We spoke to people who are very well-equipped to respond to the matters raised in this area, such as Bret Walker QC. We had a whole range of other experts in the field, including retired and current clerks in a variety of parliaments who are living and breathing this every day. It is their job to know the rules inside out too. So, it was really informative and helpful.

I commend the report in its entirety to all members. I hope that members will note the report and that we can work together to look at what possible resolution process may be suitable for this place, should we find ourselves in that situation again. Of course, that is not tomorrow; it will be at a later time. I commend the report and its findings and recommendations to all members.


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