Little cause for celebration from preliminary Victorian ruling relating to executive privilege

Victorian Greens MLC Greg Barber claimed a Round One victory following the Supreme Court decision this week rejecting the government's bid to summarily dismiss his application for a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet or prepared by an independent contractor and considered by Cabinet. Justice Emerton said [34]:

"I could not be satisfied that the proceeding had no real prospect of success, or that it disclosed no cause of action or constituted an abuse of process based simply on the principle of comity and deference, or on the proposition that the courts may only determine the existence of a privilege as an incident of a controversy arising under general law."

But I'd hold the bubbly. The best that can be said is it isn't over..yet.

Justice Emerton [36-44] went on to list the significant obstacles that Mr Barber will have to overcome if he is to succeed on the substantive issues.

36. In my view, the principal difficulty faced by Mr Barber is that, on the facts presently before the Court, there appears to be no dispute between the Legislative Council and the Treasurer about whether the Treasurer was entitled to withhold the Deloitte report from the Council. The Legislative Council has passed a motion calling for the production of documents fitting the description of the Deloitte report; the Treasurer has responded to the Legislative Council by confirming the existence of the Deloitte report but asserting that on grounds of privilege, he is not bound to produce it to the Council as requested; the Legislative Council has taken no action to require the Treasurer to substantiate the claim for privilege or to compel the production of the Deloitte report. It might be inferred that the Legislative Council has accepted the claim for privilege and agreed to let the matter lie.

Justice Emerton decided [45] that although Mr Barber’s prospects of success appear to be poor on what has been presented to date, he couldn't rule he had ‘no real prospect of success’, let alone that the application for a declaration ‘would necessarily fail’.  With Mr Barber taking some comfort from this final observation:

"Nor am I persuaded at this stage that the proceeding discloses no cause of action or constitutes an abuse of process. It is appropriate that the issues be fully ventilated. Given the complexity of the issues of jurisdiction and justiciability and the limited context in which they were argued, even if I were satisfied that the proceeding had no real prospect of success, it would not be in the interests of justice to dismiss the proceeding summarily."