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

I rise to take note of the minister's response. I accept what the Minister for Finance has said in relation to the Select Committee on COVID-19 being set up with bipartisan support. That's a good thing. But in order for a committee to do its work it has to be properly informed. It needs to have access to information. You can't stand and say, 'It's okay, we've assisted and we've given our support to a committee,' but then, on the other hand, deny it relevant information for its line of inquiry.

I want to go to two claims which have been made by the government. The first goes to legal professional privilege. It's worthwhile understanding the purpose of the privilege. The purpose of the privilege allows for confidential discussions between a client and a lawyer. In this case, the lawyer will be either the Solicitor-General or the AGS, or perhaps a contracted lawyer. But the client is of course the Commonwealth government. One of the things that you can do in relation to legal professional privilege when you are the client, because the privilege belongs to you, is that you can simply waive the privilege. You can say, 'I accept that this is legal advice, but the release of this information will not cause harm so I wave my privilege.' That's the first thing that the government could do in these circumstances. Have a look at what the content of the legal advice is and, in the spirit of openness and transparency, simply waive the privilege.

I know that people stand up on a regular basis and say that this undermines the well-established doctrine. Well, the bottom line is that it does not. The doctrine permits the waiving of privilege. The client simply has to say, 'I agree to waive the privilege.' I might point out that on 2 March 1986 cabinet made a decision under the secretary of the Attorney-General's Department at the time, Mr Brazil—it's called the Brazil Direction. This was a direction from cabinet that, in actual fact, legal advice belongs to the government, paid for by the people, and only in circumstances where harm could be caused should it not be released. I invite people to have a look at the Brazil Direction. Study it and you'll see that there's no reason, unless there's harm caused, as to why legal advice can't simply be handed over. The minister did not stand up and say, 'This is the harm that would be caused by a particular piece of advice being given.' He didn't do that. He simply said that it would be harmful just because we do it and that would cause harm. That's wrong—that's simply wrong, I say to Minister Birmingham. I think he should go away and reflect on that.

The second part of the equation, if you don't wish to waive privilege, is that the Senate has the power to order the production of legal advice. Earlier in this chamber—on Monday—I read out from the judgement in Egan and Chadwick in the Supreme Court of New South Wales where, unanimously, the appeals justices basically said that the New South Wales Legislative Council has the power to order the production of legal advice in circumstances where they believe it relates to the work that they carry out as a legislature, either in respect of considering legislation or in its oversight role.

So there's no reason why the government should not hand over that advice. It is consistent with the doctrine of legal privilege and it is consistent with the rule of law in this country. Please don't stand up and say, 'An Attorney-General said this, therefore it is.' Why don't they listen to the justices within our legal system, who I think are much better qualified than people in this chamber to understand what the law of this land is? It would be good if the government complied with the law of this land. Unfortunately, they're not.

In relation to the second aspect of some of the claims—the claim of cabinet in confidence—again, we should go back and look at the root purpose of cabinet in confidence. The dominant purpose of that protection is to protect the deliberations of cabinet—that is, the exchange of words between ministers across the cabinet table for the protection of what is referred to as collective responsibility. We allow ministers to have their opinions and say what they want to say about whatever is being talked about in cabinet, but the guiding insight is that there's collective responsibility. Once you walk out of the cabinet room, you adopt the position of the cabinet.

There is a protection around deliberation of cabinet, but there's also a ruling—again, in the civil jurisdiction—that deliberations are strictly the discussions that take place between ministers around the cabinet table. The cabinet rules—and I have looked into this in great detail—do not permit the deliberations of cabinet to be recorded on the minutes of cabinet. They can only be recorded by the note-takers, who then take the notebooks and lock them up. They send them to the archives, and we find out later what has been said. It is not possible for any minute from the cabinet or any decision of the cabinet to contain a deliberation, because that's not permitted under our cabinet rules. So claims that we see quite regularly thrown around—actually, I've got some challenges with the Information Commissioner in relation to some of these cavalier claims that these are deliberations of cabinet—are simply false because the only place deliberations of cabinet are recorded are in the notebooks.

Of course, there are accepted principles behind the keeping secret of cabinet decisions and cabinet ministers, but, again, understand what the law of this land is. I invite you to go and have a look at the case of Sankey v Whitlam in the High Court, where the High Court determined it is not for the cabinet to decide whether or not to keep cabinet documents secret in court proceedings; it is a matter for the court to do so. No-one in this country is immune from handing over documents or entitled to complete secrecy. If the interests of justice demand or require the adducing of cabinet documents then the High Court has said that is what will happen.

Bret Walker SC—and I know the Attorney respects Bret Walker SC; he's engaged him in his matter that he's just initiated—gave a presentation here a couple of years ago that said the High Court has said that cabinet documents can be adduced in a court if the burden had been met or the interests of justice demand it. He also indicated that the same threshold test can be applied and the Senate has the ability to demand those documents as well.

One of the problems we've got here is that the government is simply very cavalier in all of its claims. I have brought into this chamber on at least one occasion and certainly have brought to a committee room a document that is cabinet in confidence according to a response to an order for production but that I got under FOI. You make the claims in such a cavalier manner, and they get overturned. My current score has gone up since the last time I spoke about this in the chamber. The current score on FOI appeals is Rex 7, governments 0. It's gone up by one. It is because you make all these claims that are not properly grounded in law that they get overturned. What happens is everyone understands now what you're doing. You're crying wolf. You cry wolf every time someone wants a piece of information. You inappropriately and unlawfully withhold that document. Again I say that transparency, to the Prime Minister, is like kryptonite to Superman.

Question agreed to.