Rex Patrick (SA, Independent) Share this | Hansard source

I rise to take note of the minister's explanation. I listened very carefully to the minister as she made her explanation, and my assessment is that it was legally insufficient. The minister ought to know that the issue as to whether or not a house can call upon legal advice to be tabled has been settled in the Supreme Court of New South Wales in the matter of Egan v Chadwick. There is no question that a house that has responsibility of oversight of government decisions has the ability to call any document before it that is relevant to the course of action that the government may have taken in respect of discharging its functions, so it's entirely appropriate that if a committee of the Senate, or indeed the Senate itself, makes a call for those documents then those documents should be tendered.

Of course, you do have a right to advance a public interest immunity claim. I did listen, and I heard what you said about the matter that is currently before the courts, but there is also another case that would protect you in this instance, and it's the matter of British American Tobacco Australia v Secretary, Department of Health and Ageing in the Federal Court. No less than Chief Justice Keane, as he was then, made a decision that basically said, 'If you wander into this chamber and table legal advice, as you are required to by way of order of production, you have not waived legal professional privilege.' Indeed, nothing that has been tabled in the Senate, nothing that has been said in the Senate, can actually be used in that court. They can't draw inference from it; they can't even use the information to establish truth. It's an important principle that allows us to do our work while the courts are permitted to do their work, so there can be no harm in tabling those documents. They cannot be used in the court case. It is not proper, and the court would not permit it.

Section 16 of the Parliamentary Privileges Act—because there was some dispute over this, the parliament decided to legislate to make it very clear to the courts that they can't use this, although I will note that in a matter I've got before the courts the government lawyers have tendered some statements made in the Senate, and that will no doubt become a matter of privilege shortly if the Attorney doesn't intervene properly. So I do not accept, when you roll out a list of ministers who have, in the past, said that legal professional privilege shouldn't be tabled—they are simply ministers making statements. They're making statements that are inconsistent with law, and we do have to comply with law here in this chamber.

I'll now go to the second claim that you are making, and that is in relation to cabinet-in-confidence. I draw your attention to the High Court case of the Northern Land Council, where the court ordered that in exceptional circumstances the court can order the production of cabinet documents. They are executive documents, not parliamentary documents, and the court can order the production of cabinet documents in special circumstances, and particularly in circumstances where life or liberty might be at stake—certainly when someone's liberty might be at stake. You might note that is being dealt with right now in the ACT in the matter of the Commonwealth and Collaery, the Witness K matter. We'll probably see that the court will make a judgement between the balance of public interest and the interest of justice. I listened to Bret Walker give a presentation, a lecture, on this, and the principle is that a court could, in certain circumstances, require the production of cabinet-in-confidence documents, making it equally the case that the Senate could. There's nothing to distinguish that, provided a balance is found in favour of the Senate requiring their production, and that has already happened here. In advocating that there would be harm caused, it's not helpful when the government makes ambit claims, cavalier claims, concerning cabinet-in-confidence.

We have currently a very bizarre situation where the COVID committee has asked for documents, minutes of the AHPPC, and it turns out the claim by this government is that a meeting of doctors is a meeting of a subcommittee of cabinet. That is truly bizarre. I am in discussions with the clerk's office at the moment in relation to an FOI I did for exactly the same documentation, where the department knew I would challenge them legally and they dared not make the claim. They properly made a claim of intergovernmental documents, and that will come down to the balance of public interest. They made a reasonable claim, although I don't think it will stand the test, but they never tried the cabinet-in-confidence claim.

In the last sitting week, I stood in this chamber and I waved in front of everyone a document that I had obtained under FOI that had been denied to the Senate because it was purportedly cabinet-in-confidence. In actual fact it turned out not to be. Whilst I accept the principle that there is benefit in protecting cabinet documents and protecting the collective responsibility of cabinet, we have a really difficult issue before us in that the government regularly makes claims that are simply not believable or will not stand the test of a challenge, either with the Information Commissioner or in the AAT.

If the government continues to make cavalier claims or it continues to cry wolf, of course the Senate will get to a point where it simply no longer believes the claims that are being made by government. The government itself undermines the doctrine by making these cavalier claims. They're inappropriate. The minister should table the legal advice and the minister should table the cabinet documents, as ordered by the Senate.