Editorial
Cloaking government briefing documents in secrecy creates suspicions
Both federal question time and Senate estimates briefs are routinely released under Commonwealth freedom of information laws but in NSW, the government can still hide from scrutiny.
The lamentable situation has come to light after former independent senator-turned-transparency advocate Rex Patrick applied this year under the Government Information (Public Access) Act for budget estimates and question-time briefing documents prepared by public servants to help government officials and MPs answer questions in state parliament.
Former independent senator Rex Patrick.Credit: Rohan Thomson
He sought the brief given to a Department of Communities and Justice official to inform their answers to questions in budget estimates hearings in March on child protection. Subsequently, a damning report by the Audit Office of NSW in June this year found “the NSW child protection system is inefficient, ineffective, and unsustainable”.
But the people who run NSW’s freedom-of-information regime knocked him back on two bases. Disclosure, they argued, would infringe parliamentary privilege, and the brief was “cabinet information”.
Independent MP Helen Dalton, who represents the regional electorate of Murray, wrote to Premier Chris Minns questioning why the applications were blocked, arguing briefs can provide insights into the apolitical advice departments give governments before governments start making political choices.
“By keeping this advice secret, governments make it harder for non-government members to do our jobs. They also rob voters of a proper understanding of the advice being given by departments,” she said.
Patrick told the Herald’s Michaela Whitbourn that the ABC political comedy-drama The Hollowmen caught the secrecy culture when it showed a trolley of documents being wheeled through the cabinet room to qualify for cabinet confidentiality.
But in real time, former Queensland premier Joh Bjelke-Petersen practised the same insouciant secrecy, with cabinet matters remaining unscrutinised in the 1980s, and the consequences were no laughing matter: among a litany of corruption he traduced democracy, rigging electoral boundaries to ensure his own party won government, helped fellow minister Russ Hinze line his pockets, overruled councils in favour of developer friends, and spent hundreds of thousands of dollars opposing Eddie Mabo’s land claims, with Queenslanders being none the wiser.
While the NSW public remains in the dark, serving politicians have recourse to making the executive government of the day produce some state papers – but not cabinet documents – under the Legislative Council’s procedure for making orders set out in Standing Order 52.
Meanwhile, Patrick has launched proceedings against the government in the NSW Civil and Administrative Tribunal (NCAT) on the subject of what constitutes cabinet information. If he wins he will move on infringement of parliamentary privilege, but that may be a tougher battle. If NCAT were to find the documents were covered by that privilege, they could not be released at all. But if they are judged merely cabinet documents, they may be released after 10 years.
It remains unclear if sending budget estimates and question-time briefs to cabinet, which exempts them from disclosure for 10 years, is unique to the Minns government. But unnecessary secrecy always gives off a bad smell.
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