Commonwealth Government the 'one fly in the ointment' on assistance to Ruby Princess inquiry

Extract from Report of Special Commission of Inquiry into the Ruby Princess conducted by Bret Walker SC and released by NSW Government on14 August

1.53 The one fly in the ointment so far as assistance to this Commission goes, is the stance of the Commonwealth. I hasten to exclude the lawyers for the Commonwealth, whose written assistance and production of materials are very much appreciated, in the circumstances. Those circumstances are dominated by the assertion on the Commonwealth’s part of an immunity from any compulsory process of a State’s Special Commission of Inquiry. A Summons to a Commonwealth officer to attend and give evidence about the grant of pratique for the Ruby Princess was met with steps towards proceedings in the High Court of Australia. Quite how this met the Prime Minister’s early assurance of full co-operation with the Commission escapes me. 

1.54 This waste of time and resources, when time, in particular, was always pressing, was most regrettable. As the quality and helpfulness of the voluntary submissions by the Commonwealth demonstrated, there was no problem of resources or governmental embarrassment conducing against the Commonwealth fully co-operating with this Commission, by providing one of its officers to give evidence. It may even be that, had this happened, the confusion about the ABF noted in [1.47] above could have been avoided. It seems that this practical approach was swamped by a determination never to concede, apparently on Constitutional grounds, the power of a State Parliament to compel evidence to be provided to a State executive inquiry (such as a Royal Commission or a Special Commission of Inquiry) by the Commonwealth or any of its officers, agencies or authorities.  

1.55 This is also not the place to set out arguments for and against this Commonwealth position. As a South Australian Royal Commissioner, I have previously expressed views contrary to the Commonwealth’s stated position. I maintain those views. Further, I continue to believe that this difference about something as fundamental as a State’s legislative power to bind the Commonwealth to assist in a State inquiry just as every other legal person in Australia would be obliged to do, disfigures the area of co-operative federalism. For example, in this case, it is of great governmental significance to New South Wales to study and inform the public health arrangements by which the risk of COVID-19 on the Ruby Princess was addressed. One hopes the Commonwealth also perceives that significance. But until this constitutional impasse is cleared, the State should re-consider its arrangements such as under the Biosecurity Act, so as to procure advance approval for mutual access to information by the co-operating polities. Meanwhile, perhaps the Special Commission of Inquiry Act 1983 should itself be reviewed and modernised (along Victorian lines, perhaps) so as to clear the decks for argument only about the alleged Commonwealth immunity.

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Bret Walker's report on the Murray Darling Commission includes many reference to Commonwealth government transparency or lack thereof and a Chapter (18) on Public Disclosure