Research paper questions "Cabinet document" excuse

The NSW Parliamentary Library Research Service has published a background paper "Parliamentary Privilege: Major Developments and Current Issues".

The paper, by Dr. Gareth Griffith, includes a section on disclosure of information by the Executive to Parliament, particularly issues associated with orders for papers issued by the Legislative Council where the Government of the day has been in the minority for many years (Chapter 4).

The exercise of these powers has been hailed by the Clerk of the (Federal) Senate, Harry Evans, as a positive "major shift in favour of the Parliament and against the Executive", but the paper includes the comment by NSW Crown Solicitor Ian Knight last year that "the power is beginning to produce a distortion in the roles of the legislative and executive arms of government". (See our earlier blog on Ian Knight's speech). Dr. Griffith says that while the Council must ensure that its power is exercised responsibly, "whatever happens, the Executive is likely to find cause for complaint as it seeks to minimise the effectiveness of this and other accountability mechanisms".

As noted in the paper, the Government has sought to counter the increasing number of orders to produce papers by claiming that certain documents are Cabinet documents and therefore privileged from production. The courts in the few cases that have arisen, have left open to some degree what documents could be subject to such a claim. The paper discusses the NSW Freedom of Information Act exemption for Cabinet documents and findings the NSW Administrative Decisions Tribunal in various cases about what constitutes information "concerning any deliberation or decision of Cabinet".

Tribunal members have differed on whether information of this kind could be contained in a document prepared before consideration of a matter by Cabinet, or whether it would only apply to a document prepared at the time or after Cabinet met. The latest view by expressed by Tribunal President Judge O'Connor, is that a document prepared prior to a Cabinet meeting could be exempt on these grounds and that it is sufficient to "show that the information related to a matter of concern to the Cabinet, even if the neither the information nor the matter was ultimately the subject of discussion, careful consideration or decision making". The paper suggests this is too broad an interpretation.

Dr. Griffith says that one significant weakness in the production of documents in response to an order is that Parliament lacks the capacity to test assertions by the Executive that documents are Cabinet documents. Reasons should be provided, and documents inspected by an independent arbiter to confirm their status.