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.
- 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.
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.