Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I rise to take note of the minister's statements. I'd particularly like to go to the statement made by Minister Payne in respect of legal advice. Minister Payne made a statement that there is a long line of letters before this chamber that suggest that legal advice should not be tabled. Of course, everyone in this chamber has a view. They are informed in different ways and some are biased in particular ways. I put it that ministers shall not be judges in their own case. What we need to do is reflect on what the law is in relation to the disclosure of legal advice to a house of parliament.

I'm going to read from the case of Egan v Chadwick in the New South Wales Court of Appeal. Justices Spigelman and Meagher together say:

In performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act. ... access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision.

Accordingly—

access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions.

What, if any access should occur is a matter 'of the occasion and of the manner' of the exercise of a power, not of its existence ...

That is two justices in the New South Wales Court of Appeal making very clear what the legal position is.

There were three judges involved in that case. The third judge, Justice Priestly, said that the justification for legal professional privilege does not apply when a house of parliament seeks the production of executive documents. He said that 'it must have the power to call for information relevant' to the 'fundamentally important task of reviewing, changing and adding to the statute law of the state'. He said:

... there will from time to time be information in Executive documents either necessary or useful for carrying out its task.

That task includes, of course, oversight. So there was a unanimous decision of the highest court in New South Wales dealing with a matter relating to the release of privileged documents to a chamber of a house, and it is unquestionably law in this country that the Senate is entitled to call for and receive legal advice.

People need to understand what the purpose of legal professional privilege is. Legal professional privilege has the sole purpose of allowing a client and a lawyer to exchange their views, knowing that that information is protected from ever being adduced in a court. It's a principle that has been upheld by the High Court, on numerous occasions, as to its importance. Substantive law has been declared by the High Court. Of course, if legal advice were tabled in this parliament, the protection still applies, because privilege then protects the information that is in the document from being adduced in court. Nothing is lost by providing that advice; the government loses none of the benefit of legal professional privilege by doing so.

So I am deeply disturbed that the Attorney-General, the first law officer of this country, would not seek to have the law applied inside these chambers, both the House and the Senate. And, indeed, I'm disappointed that Minister Payne, who is herself a lawyer, is taking a position that is contrary to the law in this country. Just to make it very clear, the Senate has a power to compel the production of information that is covered by privilege.

I want to go also to the issue of cabinet-in-confidence documents. I have been having some discussions with a number of people around this place, and it is once again with reservations that I co-sponsor the motion today to sanction the Minister representing the Prime Minister—and, like Senator Wong, I do have a great deal of respect for Senator Cormann. However, he is the captain of the government ship, and the captain must take responsibility. The Senate has made a call for documents, and he says that they are cabinet-in-confidence because they are submissions to the cabinet.

As I talked about yesterday in this place, there are two requirements for a document to be lawfully considered a cabinet document. Firstly, it must at 'birth' have been prepared for the dominant purpose of being submitted to cabinet. That is a question of fact that requires the provision of some evidence, which has not been provided, to this chamber. Secondly, of course, it must have been submitted to cabinet. There is an interesting thing, however, even if it were cabinet-in-confidence. Again, from the New South Wales Court of Appeal, then Chief Justice Spigelman held that 'it is not reasonably necessary' for the performance of those functions 'to call for documents the production of which would conflict with the doctrine of ministerial responsibility, either in its individual or collective dimension', referring to the cabinet. He also held that the revelation of documents prepared outside cabinet for submission to cabinet 'may or may not, depending on their content, be inconsistent with that doctrine'. In a sense he is suggesting that, if the document relates to perhaps some secret military operation, it's probably not appropriate to call for that cabinet document; but, if the cabinet document is a document which has been sprinkled with cabinet dust simply for the purpose of making sure that no-one else sees it because it's embarrassing, it is within the rights of the Senate to call for it.

In fact, I'm disturbed that this document has gone not to the full cabinet but to the Governance Committee of cabinet. We have a Governance Committee of cabinet that deals with indiscretions in a secretive manner. That in itself should be worrying to everyone. We have a Governance Committee of cabinet, on governance issues, that operates in secret. I find that really, really perverse.

To be fair, I will say that Justice Meagher had a different view. He said the immunity of cabinet documents from the New South Wales Legislative Council was 'complete'. We've got one judge in favour and one against, so we need to go to the third judge, Justice Priestley. He held that a court has 'the power to compel production to itself even of cabinet documents'. He said:

… equally there should be no objection in the different situation that arises between the Executive and a House of Parliament to the possession by another branch of government other than the Executive, of the same power …

So again, in law, there is no legal justification for not providing to the Senate chamber documents that have been called for. And again, it's regrettable that the Labor opposition, the Greens, One Nation, Jacqui Lambie Network and Centre Alliance are standing up for the Senate. We don't want to weaken the Senate. We have a document which is being withheld from the Senate purely because it is embarrassing—that is the only reason it is being withheld—and that is not appropriate. So I would urge the government, and I give this offer to them: I would withdraw my support for the motion were the government to table the document—even, table it to a committee of the cabinet and ask for confidentiality so that senators can see the document but perhaps it doesn't go into the public domain. I've made that offer to the government. But there is no way we can allow the government to hide the content of this document from senators. That is not permissible. It is inappropriate, and the Senate needs to take a stand on this. I will be supporting the motion this afternoon.