Page 2046 - Week 06 - Thursday, 7 May 2009
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government’s arguments then proceed immediately to the proposition that, given that the High Court got it wrong, if you accept that the functional review is prepared for cabinet and considered by cabinet then, abracadabra, it must be protected by executive privilege. Whilst it is possible that the functional review would attract executive privilege if subjected to a thorough judicial examination, we cannot be confident that this is the case, because the only argument we have to base an assessment on is the government’s incomplete and thoroughly one-eyed submission to the arbiter.
It is informative that word has it that many members of the Labor Party and, indeed, some ministers believe that these documents should have been released for public scrutiny. This is clearly a battle which is being waged by the Chief Minister as a personal matter. While it may be that he is deliberately following some of his state Labor colleagues in attempting to widen the scope of cabinet exemptions, it is hard to escape the suspicion that the release of this report will reflect poorly on the government of the last term, and that that is why the Chief Minister has gone to such extraordinary lengths to keep it confidential.
It is also possible that the government is attempting to expand the cabinet in-confidence exemption category in order to fill the gap left by the abolition of conclusive certificates. As I mentioned at the start, both the government and the arbiter concluded that it is beyond the power of the Assembly to call for the functional review. This is a remarkable proposition. Surely they are not suggesting that the Assembly has no power to even call for documents which may or may not attract the public interest immunity from release.
It is a matter of established law that the Assembly has an unrestricted power to call for any document whatsoever. It is for the party who asserts a public interest immunity exists to make the case for withholding the document from release. This is an essential part of ensuring that a legislature is able to scrutinise a government’s activities. The government has not acknowledged that a public interest test applies, even in the case of cabinet documents, and especially so in this case where the document does not directly reveal the deliberations of cabinet.
Despite the government’s best efforts to conflate the two classes of document, we are not talking about a cabinet notebook, nor are we talking about a cabinet submission. This is a document of some 450 pages. The Greens respect the principle of cabinet confidentiality and, all else being equal, we have no intention of demanding documents which clearly fall within the scope of the accepted conventions of executive privilege. But it is still not clear whether this document deserves that protection.
This document does not reveal which minister said what about the assumptions or assertions or recommendations contained in the report. Rather, it reveals what deliberations of cabinet were based upon. I suspect it would also contain some unflattering comments about senior public servants, some extremely shonky economic forecasting and some neo-liberal social valuations which the Labor Party’s rank and file would be appalled to discover ruled the day in the cabinet room. It is extremely difficult if not impossible for the Assembly to adequately perform its duty of scrutinising the performance of the government and the individual ministers if we cannot see what economic, ideological or factual assumptions underpin their decisions.
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