Legislative Assembly for the ACT: 2008 Week 08 Hansard (Tuesday, 5 August 2008) . . Page.. 2827 ..
The committee wrote to the Chief Minister on 19 March of this year requesting a copy of the functional review, utilising its power to send for papers granted by standing order 239. The Chief Minister responded on 2 April and declined to provide the document on the grounds that it was confidential to cabinet.
On 2 June the committee wrote to the Chief Minister again. In this letter the committee noted that it took the refusal to provide the document as a claim of public interest immunity. The committee drew to the Chief Minister’s attention the approach taken to public interest immunity by both the Australian Senate and the Australian courts. A claim to public interest immunity is only properly grounded if the document protects records or reveals cabinet deliberations. The functional review contains only material that cabinet chose to consider. Noting that the committee saw no reason why the ACT should take a more restrictive approach to cabinet documents than other jurisdictions, the committee renewed its call for the document to be provided.
On 21 July the Chief Minister responded, again declining to release the document and noting the importance of the principle of cabinet confidentiality. The letter went on to state that a conclusive certificate had been issued under the Freedom of Information Act 1989 regarding this document. The correspondence ended by stating that that certificate still applies and that the Chief Minister was therefore unable to provide a copy of the document.
The committee notes that the Freedom of Information Act and its certificates are totally irrelevant to an Assembly committee’s power to send for papers. The committee did not make a freedom of information request; it made use of standing order 239, which states:
A committee shall have power to send for persons, papers and records.
The committee acknowledges the principle of cabinet confidentiality in the Westminster form of government. The principle exists to uphold cabinet collective responsibility, which would be undermined by the release of cabinet deliberations. The functional review does not record the position of a minister, nor does it reveal cabinet’s deliberations, but is an independent report on the ACT’s public sector and services.
The committee brings this matter to the attention of the Assembly because of the important principles involved. What has happened here is of importance to every other committee. I hereby give notice of a motion requiring that the Chief Minister table the Strategic and functional review of the ACT public sector and services in the Assembly before the end of this sitting day.
Mr Smyth: I seek leave to speak on the matter.
Leave not granted.
MR SMYTH (Brindabella) (11.46): Mr Deputy Speaker, I move: