Documents: Community Sport Infrastructure Grant Program - Order for the Production of Documents

26 February 2020

Senator Patrick: I am severely shocked at how quickly this government has turned into a secretive government. I'm shocked at the long and detailed presentation we just heard from the government, which essentially sums up one thing—they are running scared from openness, transparency and public accountability. This runs counter to everything they said not only before the last election but also since, such as:

I will quote to Senator Ludwig a statement made by Senator John Faulkner at a recent conference. The speech, entitled 'Open and transparent government—the way forward', was made at Australia's Right to Know, Freedom of Speech Conference. He said:

… the best safeguard against ill-informed public judgement is not concealment but information. As Abraham Lincoln said: 'Let the people know the facts, and the country will be safe'.

What I've just read to you might seem a little out of context. It is out of context because they are not my words. They're words from a different time. They are, indeed, the words of Senator Cormann on 13 May 2009, when he was raising the public interest immunity procedure that Senator Watt was referring to. How the passage of time, or indeed the side of the chamber on which you sit, changes one's perspective.

I share Senator Watt's view on Senator Cormann's uncomfortableness with the claim he is making. I genuinely think he has trouble with it. He is an innocent and principled senator wrapped in a minister's body.

In relation to the claim itself that Senator Cormann made today, he talked about the deliberations of cabinet. It is not possible for the document this Senate seeks to contain deliberations of cabinet because it was purportedly an input to cabinet. Even if we accept the government's claim that it is cabinet in confidence, it cannot contain the deliberations of cabinet—the words spoken, the arguments had. So that claim is not made out. Even if it were cabinet in confidence—and I'm not sure that it is, and we will test that in time. I have got an FOI that I will follow through on to make sure that there is clear evidence that (a) it was submitted to cabinet or, at least, a subcommittee, and (b) that its dominant purpose at birth was, indeed, to inform cabinet. There is a positive right under FOI which means that the government will have to present evidence that, on the day of its birth, that document was to go to cabinet. I do not accept at this point their claim. They haven't provided any evidence of that nature.

I'll also point out that, even if it were cabinet in confidence, the law here in Australia allows for the Senate to make a call for those documents to be received. I say that with absolute confidence because we can refer to the appeals court case in New South Wales, Egan v Chadwick, where the majority made it very clear that the Senate—in fact, the Upper House in New South Wales—has the right as a house of parliament to demand documents of this nature. Ultimately, the Senate and the other place are supreme over government, and that includes the cabinet, in terms of our oversight on behalf of the people. So, again, I do not accept the claim that the government has made. Indeed, the Senate has not accepted the claim that the government has made.

I'll close up by saying that, even if all of that were irrelevant and for some reason there were legitimate cabinet-in-confidence reasons for not disclosing the document, cabinet in confidence is a means to an end, not an end in itself. That end is to protect information which, if released, would be damaging, would harm the national interest and would not be in the public interest. If the public interest lies in disclosure, then it should be released. In this instance, this is a document not about how we're going to deploy military forces overseas, it's not a document about how we're going to structure our intelligence services; it's a document that goes to governance and integrity, and the public have a right to see what is in that document. They have a right to full confidence in the government in the execution of its role. Ironically, good governance and integrity are topics that disclosure gives public confidence, which is certainly lacking at this point in time. The government know that this document should be released. There is nothing in any convention that stops the cabinet simply stating, 'We will release this document.' Neither I nor the Senate have accepted the public interest immunity claim, but there is a pathway out of this, which is simply that the cabinet releases the documents.

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