Treasurer Wells a long way from time in the stocks

Majorly

President Obama's resort to executive privilege in support of the refusal by Attorney General Holder to release documents to a congressional committee, a first for his administration, didn't protect Holder from a subsequent contempt motion. Closer to home, we have our own argument over parliament's powers to order production of documents.

Victorian Treasurer Kim Wells refused last year to comply with a Legislative Council motion requiring the tabling of a review report by consultants Deloitte of Myki, the controversial public transport smart card system. The Treasurer responded by advising that the report was prepared for consideration by a cabinet committee, that the council did not have power to require its production, and that the government had decided not to provide it.

Nothing happened in parliament thereafter but the matter is now in court. Greens MLC Greg Barber initiated action in the Supreme Court in March seeking a declaration that the council has power to order production of documents prepared outside cabinet and considered by cabinet. Not surprisingly all sorts of issues arise before the court gets to that point.

In a submission lodged last week the Solicitor General seeks an order that the proceeding be dismissed or stayed, or judgment be given for the Defendant on the grounds that the claim has no real prospect of success or is an abuse of process, based on legal principles concerning the order sought, the nature of privilege in Victoria, and the separation of powers. In essence:

• there is no justiciable dispute to which determination of the existence of parliamentary privilege is a necessary incident;

• the Legislative Council has not yet considered whether to assert any power to compel production, and the Court should not intrude into the workings of parliament unless compelled to do so;

• the relief sought is merely hypothetical or advisory  and should not be entertained in the abstract and apart from a justiciable controversy.

The case is listed for 14 August. The Solicitor General has also given notice that the proceeding involves a matter arising under the Constitution. As s 78B of the Judiciary Act requires notification to the Attorneys-General of the Commonwealth and the States, some  may choose to join in.

So It will also take quite a while, if ever, to get to the underlying issue of access to the report prepared by consultants which the government claims was prepared for consideration by cabinet or a cabinet committee. If it was a freedom of information issue, which it isn't, the relevant exemption (s 28) turns on whether the report was prepared by or for the Minister or by an agency for the purpose of submission for consideration by the Cabinet.

NSW is the only Australian parliament that has a system for dealing with disputes concerning parliamentary orders requiring production of documents. An independent arbiter determines whether a claim for privilege has merit.  Some in federal parliament were keen to address the issue at one point but passed the opportunity in February 2010. 

In 2007 Victoria had a system of sorts (Sessional Order 21-Submission by Legislative Council: Inquiry into Independent Arbitration of Public Interest pdf) but apparently the current parliament has never got around to addressing what to do in circumstances where a minister says no, according to Mr Barber's Affidavit.

The general issue of parliament v the executive over access to documents will get an airing at a forum at the Castan Centre for Human Rights Law, Monash University on 9 August featuring Mr Barber and Clerk of the Senate Dr Rosemary Laing.