Rex Patrick (SA, Independent) Share this | Hansard source

[by video link] I wish to follow up on some of the things that Senator Siewert said. Firstly, I wish to make it very clear that, if the government were to table legal advice in this chamber, that advice would be protected by parliamentary privilege and could not be used in a court, in the same way that legal advice is otherwise protected through the normal doctrine of legal professional privilege. I'm very glad that the Attorney is sitting there. She will be aware of the case of Egan v Chadwick, in the New South Wales Court of Appeal, where three justices made a unanimous ruling that legal professional privilege is not an exemption that can apply in relation to a request by a house of parliament. The court ruled that it is quite within the rights of a house of parliament to gain access to the advice upon which governments made their decision. That's part of the oversight process. It's disingenuous for the minister to walk into the chamber and suggest that it's okay to do so because the court upheld legal professional privilege. The whole point of legal professional privilege is not to keep things secret; it's to make sure that discussions between lawyers and their clients cannot be used in a court. That's the only case where the protection applies. So it's quite incorrect to try and roll out the fact that a justice may have upheld that claim and use that as a reason for not tabling something in this chamber. Again, the relevant case is Egan v Chadwick.

I'm sick of ministers standing up, as attorneys-general have done repeatedly in this chamber, and saying something that suggests legal professional privilege documents shouldn't be tabled. It is wrong. It is wrong in law, and it's wrong for attorneys to make that sort of assertion. I acknowledge that this assertion was made by Minister Reynolds and not the Attorney, but the Attorney must always seek to uphold the law, not only outside this building but also inside it, and recognise the jurisdiction of the courts. In relation to claims that somehow documents shouldn't be tabled here because they're legally privileged and the AAT upheld it, again, the AAT is an environment in which the same rules don't apply in terms of the ability to look at legally privileged documents.

I'll now move to cabinet claims. I've got a bit of a background in cabinet claims, having won a few of these matters before the Information Commissioner and, indeed, in the AAT. Again, the Senate has never accepted that just because something is a cabinet document it can't be ordered for production. That is not true of deliberations of cabinet, but there has been a ruling in our courts that the deliberations of cabinet are the actual discussions that take place between cabinet ministers, as recorded in the notebooks. The notebooks that are associated with cabinet are very special in that, even under the Archives Act, they have an additional 10 years over cabinet documents. Cabinet documents are released after 20 years; cabinet notebooks, still, are only released after 30 years, recognising that is where deliberations are recorded. In the minutes of cabinet, only a record of the decisions is made. Which recommendations are accepted and what actions might need to be taken are actually recorded. It's long been accepted that, in exceptional circumstances—and, to make sure I'm not misleading the chamber, I will state that they have to be exceptional—either the courts or the Senate can seek access to cabinet documents. That ruling was made in Commonwealth v Northern Land Council, in the High Court, basically making it very clear that, if the interests of justice required it, in fact cabinet documents could be required to be produced in a court.

In relation to the Senate, I encourage senators to go and have a look at a lecture that was given by Bret Walker SC as part of the parliamentary series, which stated the same claim as exists in the court—that ultimately the Senate can seek these sorts of documents. Again, the burden is high. I don't necessarily suggest that the burden in this instance would warrant it in relation to the cabinet documents, but a minister should not walk into this chamber and mislead by suggesting that these documents can't be provided. They would be much better off simply saying that the burden hasn't been met. We need to make sure that, inside this chamber, when we're dealing with matters of oversight, when we're exercising our role in relation to oversight of government, things are done properly and in accordance with the judgements of courts. You might think that the courts don't have application or don't have jurisdiction to examine whether or not the Senate does or doesn't have a power. It was found in the case of Egan v Willis that the court can make a determination as to whether or not the Senate has a particular power. It can't just then decide on the use of that power. We must respect the court's views on this. It's inappropriate that ministers wander in here and simply quote that previous people have said that this doesn't need to happen and that, therefore, it's right, because it's not right. It's wrong and it's unlawful.