Wednesday, 16 October 2024
Production of documents
Commonwealth Games
Production of documents
Commonwealth Games
David LIMBRICK (South-Eastern Metropolitan) (18:03): I move:
That this house notes the failure of the Leader of the Government to comply with standing orders in relation to the resolution of the Council on 1 May 2024 for the request for documents relating to the 2026 Commonwealth Games bid.
I will start by stating the obvious: yesterday midday was the deadline for the production of these documents. I have received nothing as yet from the Leader of the Government.
I will go through a couple of points here. Firstly, even though this motion was moved by me, these are not documents that are wanted by me personally or the Libertarian Party. They were requested in my role as chair of the committee in order to obtain documents that were resolved by the committee to be important to their investigations into the Commonwealth Games bid. I take this responsibility seriously and wish to exhaust all avenues available. The government, through their inaction on this, are effectively holding the committee and, frankly, the Parliament in contempt, in my view, by not making any effort to use the standing orders that we have available through the process of an arbiter to determine whether executive privilege is in fact valid or not. I note that this process has never been used in Victoria; however, my understanding of the process and how it should work, how it is meant to work according to the standing orders, means that these issues can be resolved through the process of an arbiter.
I am disappointed that the government has not gone through this process. I do not know whether it is a lack of trust in my ability to keep confidence or whether the government does not trust an arbiter who might be appointed, but nevertheless the government is simply not following the standing orders. I would say more generally the documents production process in this chamber is clearly broken. The government routinely comes back with a letter saying that it is going to take a bit more time and then you never hear anything ever again – the process is broken. I would like to say that I am open-minded, and I believe others are open-minded here, about us looking at changing the process. If the government does not like this process or cannot use this process for whatever reason, I would like to in good faith try and negotiate something that is acceptable to the entire chamber that might be workable. I understand that there may be instances where orders for documents may be potentially unintentionally far too wide and that there is no process to –
David Davis: This is certainly not such a case.
David LIMBRICK: Well, this is not such a case, because these documents have already been identified; an assessment by the government has already been made. So in this particular case I feel that there is no excuse for not using the arbiter process that we have available to us. But more generally the process is clearly broken. It is quite rare that documents are produced. I note that a document that we requested was the report into tobacco regulation, which the government still did not produce even though it had already been leaked – a draft of it at least, not the final version – to the media and it was in the public domain. The government still did not produce that even though it – or the draft at least – was pretty much already available and in the public domain.
I suppose others will have views on this, but the non-production of these documents I believe is hindering the work of the committee to carry out its important role in looking at the decisions around both taking on and then abandoning the Commonwealth Games and also the regional infrastructure rollout, which is another part of the committee’s work. Clearly this is hindering that work. The vast majority of these documents have not been handed over, and I can only conclude that the government is not keen for the committee to do a thorough job of what this house has resolved to be their work. I believe others will have things to say about this, but I would like to express my disappointment that despite this, we have not received anything to date.
David DAVIS (Southern Metropolitan) (18:08): I think this is very sad, that the government has refused to avail itself of the procedures designed to break a deadlock on documents. There is an independent arbiter process in the standing orders. The independent arbiter process could have been used. It is routinely used in New South Wales, and there is a high degree of trust in that process. Respected jurists have been given the role of acting as arbiter by the Legislative Council in New South Wales. The standing orders here are modelled directly and explicitly on the New South Wales approach, and there is no reason why the government cannot behave as New South Wales governments of all colours have behaved in the past. These standing orders have only been in operation in this way since the 2014 change of government. The new standing orders came in at that point. They have never been used.
David DAVIS: Well, we did give documents in government.
David DAVIS: We did. We complied with almost every single one. And if we did not, we actually wrote to the chamber in some cases and made the point that documents, for whatever reason, could not be provided. We asked the chamber respectfully not to insist, and it never did. And the fact, of course –
A member interjected.
David DAVIS: It never did. We treated it with respect. We actually did. Very carefully, there was deep response. But there was no standing order that provided a mechanism for a dispute resolution or for an arbitration. There was no –
David DAVIS: Well, it is a fact. It is not an excuse. It is a fact. There was no such standing order. It did not come into operation in the Parliament until after the 2014 election.
Jaclyn Symes: You were never forced to supply anything, so you just did not bother.
David DAVIS: I am sorry, but the standing orders changes were made at the end of that Parliament, and they came into operation in 2014.
David DAVIS: No, I am just being quite clear: you cannot comply with a set of standing orders if they do not exist. The arbitration power did not exist in Victoria in that sense.
The obvious thing here is that there is something that the government has to hide – hundreds of documents and no sensible reason advanced. The Attorney-General ought to be prepared to act in a direct way on this and actually provide the documents to the arbiter. She can do this; there is nothing stopping her in the world doing that. The standing orders of the Parliament are quite clear. The only reason the government are not providing these documents is because they are embarrassing to them. That is the simple fact.
David DAVIS: Well, if you say that, why don’t you test that? You could test it. It is a simple fact here that the government is determined not to provide the documents. In my view, looking at the documents that are listed, the government is over-egging the claim of executive privilege. An arbiter will quickly work to the truth of it. An independent arbiter, appointed by the Parliament, could quickly and swiftly deal with the facts here.
I just do not understand why the government is so afraid to release these documents. It is because it is an arrogant government, it is a tired government, it is a government that is determined to close down the provision of information. Mr Limbrick is right, the government does treat the documents process with contempt. It is a carefully written set of standing orders. It was agreed to by all parties, actually, in 2014, and then brought into operation after the election in 2014. The fact is, Minister, your party has been in government for the whole of that time, and on each occasion it has sought to block the use of these arbiter powers. There is no reason for that other than the secrecy and the decision of your government to try and defy and block information from the Parliament. It is arrogant, it is unfortunate, and the truth of the matter is that this is your opportunity now to actually live within the standing orders of the Parliament.
Sarah MANSFIELD (Western Victoria) (18:13): I feel like I have given the same speech about the government’s failure to produce documents and their failure to comply with standing orders regarding executive privilege so many times now that I am actually at risk of plagiarising myself. I am not quite sure whether I will have said the exact same thing before, but I will give it a go.
I think it is unsurprising that we are here. The fact that the government wanted this debate to be moved to this part of the week before they had even responded to the motion suggests that there was never any intention to comply with the standing orders. There was never any intention to comply with what the motion was asking for from the very outset. The complete disregard for the request in this motion displays, I think, a real arrogance and a hubris that is becoming a hallmark of this government on so many issues. They did not even have the courtesy to respond to the motion to say they were not going to comply. They just ignored it. The government has every right to make claims of executive privilege. You have heard not a single argument from anyone else in this place that you do not have that right. You can claim executive privilege. There is an argument about whether your definition of ‘executive privilege’ is too broad, but even putting that aside, you have the right to make these claims of executive privilege. That is not the issue here. The issue is that when you do so you just follow the standing orders of the Legislative Council. That is all we are asking – that the agreed-upon standing orders of this Council are followed. If you believe that your claims are legitimate, as Mr Davis said, then there is absolutely no reason you should be worried about following the required process. The steps are clearly outlined, and you just refuse to do so, have always refused to do so and seem to indicate that you will continue to do so.
The fact that you refuse to follow the standing orders really suggests, though – I mean, it is hard not to come to this conclusion – that you are worried that your claims do not hold water. If you are so worried about following the standing orders – why? What is it about the standing orders that is a problem? As Mr Limbrick said, if it is the standing orders themselves and we need to come to a new agreement, fine, let us maybe work on that, but these are standing orders you have agreed to. So why are you not following them? It suggests strongly that you do not believe that they would hold up to the process, because if you did, you would follow the process and everything would be fine.
I think the other issue is that if you do not think your claims are going to hold up to scrutiny, what are you then afraid of being discovered as a result? If it was found that executive privilege does not apply, what are you trying to hide? We know from the Commonwealth Games inquiry so far that there was some seriously flawed decision-making that went on. It was not around the cancellation of the games – I do not think that has been the issue – but the decision to hold the games in the first place was clearly very poorly informed. If government decisions that involve such potentially significant amounts of expenditure are based on such flimsy business cases, like they were in the case of the Commonwealth Games, and if decisions are made in such a rushed manner with such poorly coordinated processes, what other significant decisions are being made in the same way that would also benefit from a bit of scrutiny early on to prevent the government making decisions that perhaps are not as good or as sound as they probably should be given the significance of them?
We can look at the situation of the proposed demolition of the public housing towers. The government I think in court have claimed that there are no documents, but then we had a similar documents motion to the Commonwealth Games one in this chamber. We were told as a response to our initial documents request that there are too many documents, actually, not that there are none. We were told there are too many and it would cost too much and take too long to provide them all, so we agreed to a revised scope of documents, and almost all of those documents that were identified as being more reasonable and in scope – all but a handful – have had executive privilege claims made over them. Once again the process that is required under the standing orders has not been followed. For such a consequential decision for so many Victorians, the very least the government could do is provide some documentary evidence to support this decision. The fact is they will not and the fact is that they will not even follow the standing orders. Again, you have every right to make claims of executive privilege, but the fact that you will not follow the process suggests once again you have something to hide and are afraid of scrutiny. Just as with the Commonwealth Games decision, it is one that may well benefit from some public scrutiny, from some parliamentary scrutiny and from some transparency.
I have said all of this before. This is really a fundamental issue. It is a question of transparency, a question of integrity. The standing orders are there for a reason. On this particular approach that the government are taking, the way that they have repeatedly refused to follow the standing orders when it comes to claims of executive privilege really shows a lack of respect for this Parliament, but moreover it shows a lack of respect for the Victorian public, who we are elected to represent. I would strongly urge the government to reconsider their approach to these claims going forward. I am not holding out a lot of hope that things will change, but I think as Mr Limbrick said all of us are open to finding a better way forward when it comes to this process, because it is clearly not working. If the government does not think that these standing orders are appropriate, rather than just continuing to fail to follow them let us figure out a way that we can come up with a system that everyone can agree on and that will be followed and that does allow for some test of these very broad claims and these frequent claims of executive privilege.
Joe McCRACKEN (Western Victoria) (18:21): I would just like to support the comments that have been made by my colleagues Mr Davis, Mr Limbrick and Dr Mansfield, who have spoken already. I particularly want to pay tribute to Mr Limbrick as chair of the Select Committee on the 2026 Commonwealth Games Bid. It is fair to say that Mr Limbrick has been an excellent chair. He has been incredibly fair in the way that he has conducted the committee’s work and led that, always engaging in good-faith actions. You could not ask for a better chair in terms of integrity and transparency and openness, so Mr Limbrick, I really do think you deserve all the credit that you receive, because you have done an excellent job in chairing this process so far.
What has been disappointing is that obviously the deadline for the production of these documents was yesterday and they have not been forthcoming. It is almost like there is a trend of deliberate frustration of the work of the committee in order to get to the root of the matter. And the way to get to the root of the matter – the cause of the Commonwealth Games cancellation and so forth – is to get access to documents. Another action we have seen is the refusal of the Premier to appear before the committee. We do not know why. Because these documents have not been produced, we are unable to get to the work that we want to be able to do.
I guess the real question is: why? We want to be able to know: why these documents? There is a process that is outlined in the standing orders if there is a question about whether or not executive privilege exists. We are able to go through and make a determination whether that executive privilege actually exists or not. If there is genuine executive privilege, then I think everyone who has been engaging in this process has been doing so in good faith, and if the government do have a genuine executive privilege claim, why are they so afraid to test it? If they are afraid to test it, why is that? If they had the temerity to go through and test it through the arbiter process, we would be able to determine rightly or wrongly whether there is a claim of executive privilege. If there was found to be an executive privilege claim, it would be upheld and we would carry on with the work of the committee. But until that process has even been engaged in there is no way to determine that, which is a great shame.
You have just got to ask the question: why is that the case? Why is there a reluctance to engage in that process? Any reasonable person would conclude that there is something to hide there – there is something that is hidden that the government does not want released. As others have said, it might be embarrassing or it might cause the government to feel as though the questions about the decisions that they have made in the past could all be revealed in front of us all. For someone like me, I value transparency and I would like to see that at least, but I can understand why the government might have a sense to feel embarrassed about it, because they might reveal that some fairly average decisions were made. I do not know, but I would love to be able to have access to the documents so I can at least make a determination on that. We are not even at that point yet.
But the whole point of going through this process is to get to the truth, to get to the truth of the matter, to help the committee do its work. This is the committee that has been set up by the Parliament to inquire into this. It is not just a committee that has been willy-nilly formed. This is a committee that the house, this chamber, has agreed to, and step by step the work of that committee has continually been frustrated, unfairly in my view. So I do support this motion, and once again I hope that the committee can get on with its very important work of getting to the heart of the matter, which is what the whole purpose of the committee was in the first place.
Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:25): This is addressing the motion that has been moved by Mr Limbrick to set up this debate. At the outset I would also acknowledge the letter that Mr Davis wrote to me on the same topic on 5 September, very politely reminding me of the standing orders and the process that is in New South Wales, and pick up on Dr Mansfield’s contribution, which was a really constructive contribution. I understand you expressed some frustrations, but importantly you expressed a willingness to engage in conversations in relation to doing things better, and I am certainly of a similar view to you.
I am in the process of examining the standing orders and their application to document motions in this place. I have commenced conversations with the New South Wales members of their government and people that are familiar with their processes. It is not a simple process. It is not a matter of just changing things and introducing something that has never happened before without careful consideration of how that might look. As I said, never in this place has the standing order which is the focus of this motion been used. It is not straightforward given the immense volume and frequency that we are seeing with document motions coming into this place. It would be an incredibly unsatisfactory outcome if we were to set up an arbiter process that was just swamped with documents, examinations and requests, and I think picking up on Mr Davis’s concerns and allegations that the government over-egg executive privilege, it would be a concern to me that we would be on fishing expeditions of massive requests of documents that are all carted on trolleys into an arbiter’s office to test whether the government are bona fide in their claims of executive privilege or not. Obviously you have a distrust of government, it is your job to hold us to account, but I can assure you – I sit in on the processes – it is about getting legal advice, including from the Victorian Government Solicitor’s Office and sometimes the solicitor-general’s office, to inform the executive’s decision of claims of executive privilege.
I am the chair of the legislation committee – it goes to the committee; Minister Blandthorn is on that committee, as well as members from the Assembly. Very often we are faced with a situation where I have got ministers that do not want to claim executive privilege because the document would be beneficial to the government’s interests. That is not how you go about deciding whether executive privilege applies or not. You take the advice, and you are agnostic to the document that is being discussed. It is not about whether you look good or you look bad. There are established principles and legal advice that I guard very seriously in my role as Attorney-General and my role as the chair of the legislation committee. However, I do acknowledge that of course you have got questions, you have got concerns, you would like documents.
It is not a matter of just giving documents. I think most people have at least expressed some understanding of the fact that there are certain appropriate cases where documents that are within the possession of the government should not, for the benefit of the public or the benefit of the operation of the government or the executive or for community safety reasons, be given. Everyone I think accepts that premise; however, I am not quite sure you are there, Mr McCracken, in terms that your view is that you should be given everything so that your committee is facilitated to do its work. I would argue that there are instances where it is appropriate for documents to be detained for particular reasons, and I think I have outlined those.
Clearly there are a range of views in the chamber regarding the application of executive privilege. I have had a number of conversations, my office have had conversations, I think some of the advisers in the Premier’s private office that support this chamber have also started to engage with members of the chamber. I would note that on 29 May the government started to want to have these conversations about variation of scope of orders for the production of documents – things that we would want to see put in place before you were to go to an arbiter-type process. We would want to make sure, as I said, that the process works and is not abused by the sheer volume or by frivolous claims. You are accusing us of holding up documents. I want to say that I think we should create a system that protects the system from being abused by non-government members to try and justify the request for transparency.
David Davis: Your party agreed to these standing orders.
Jaclyn SYMES: Just implementing standing orders without consideration of how they would apply is irresponsible, Mr Davis, but I think you could tell from the tone of my contribution today that I am open to these conversations. I welcome the invitation for a new agreement, a better way forward, and that is a commitment that I am willing to give. I think that we can work towards an outcome here. We cannot rush it, and we need a set of parameters about how it would operate and what we are going to stick to, because as I said, I do not think simply implementing the standing orders without consideration and a discussion about how it is going to operate is a satisfactory outcome.
I would urge people to be constructive on this and work with the government to come up with a suitable system that would work. I would like to remind you to revisit some of the suggestions that we have looked at in relation to the motion that Ms Blandthorn read in, which is 449 on the notice paper from the government. It gives you an indication of some of the issues that we are concerned about in progressing this. I do welcome some productive conversations going forward on this matter, but given the way that this motion is worded we will not be supporting it. But hopefully we can have some productive conversations outside the chamber.
David DAVIS (Southern Metropolitan) (18:32): I seek leave to move:
That the clerks write some notes for everyone on New South Wales and how it is operating.
Leave refused.
Melina BATH (Eastern Victoria) (18:32): As a member on the Commonwealth Games committee I have certainly been involved in hearings and involved in the discussions, and I was a party to the motion that was put forward. In fact I amended it to be debated today so it was in a non-government period so we would not take up any of the government’s precious time bringing in legislation. I will not go over the topics that we have heard before. We have talked about executive privilege, and I thank all the other members for leading the way on that for Mr Limbrick, who I think is trying to stand in a moderate space and do the job of the chair of these sorts of committees. He has got many of his own agendas, but I actually think he is trying to be reasonable. I think it is reasonable to comply with the standing orders of the Legislative Council, and I take on board and echo the frustrations of the Greens and thank them and agree.
What I have heard from the leader of the house today is in relation to a willingness to do something better, and we need to look at what that would look like. Before I go into that space, I am doing this from memory, but of those 350 outstanding documents –
David Davis: 353
Melina BATH: No, but we have got three of those. So of the 350 that are outstanding still, from memory some of them go to the village in Morwell, the potential site of the Commonwealth Games village in English Street; some of them talk about wastewater; some of them talk about the topography; and some of them talk about the make-up of the soil. I find it hard, just personally from a superficial point of view, to understand the level of executive privilege that is being claimed on some fairly simple documents. The government can do and have done that, but I would have thought in good faith that they could have had a bit of a rummage through those 350 documents that are left and found something there that would have shown the committee is barking up the wrong tree and does not need to see these documents. I just fail to understand how 350 could be that highly sensitive that the government would want to keep them not only from us but from the Victorian Parliament.
We, a little while ago in this place, had a two-day conference where members of our electoral office staff came down, and it was a fantastic conference by all considerations. There was a mixture of people, and it related to the processes that occur in this house on a Wednesday. I had two of my electoral office staff – one has been serving for almost 10 years. They sat around and they spoke to other electoral officers. The running joke with the government’s electorate officers is that this is ‘Wacky Wednesday’ and that it is to be held overwhelmingly with – I will not say contempt, because that is a very strong word – ridicule and trivialities. I think that is really disappointing when, clearly, we are all elected to this place, and we need an opposition. The government has just said that it is important to have an opposition and to have scrutiny et cetera, but when there are elements within the standing orders and the process is followed through and the government disregards those, now it is such a big headache.
This government has been in for nine years, and no, it has never been enacted, we will say, in those nine years. Now it is coming to fruition that is a good idea, and we have heard that from Leader of the Government today. Well, I would like to understand what that actually looks like. The minister has said that they are willing to do something. I think the point that my colleague Mr Davis was going to put is that if that good faith is there and there is a willingness to do something, then perhaps the Leader of the Government could constructively ask our table office, our clerks, to come back with what that framework would look like moving forward, so that when we on this side of the house ask for these documents, to work through something that is working in the New South Wales Parliament, that is an accepted –
Melina BATH: You have had your turn, Minister. You could have kept on with that discussion. Now I am getting yelled at for having a position. I am asking the Leader of the Government, in good faith, to come back to this Parliament, to come back to this house, and explain to us, maybe with a working document that the clerks have organised, how we could move forward. Mr Limbrick brought this up, that the process is not working, so I want to see and understand how the Leader of the Government is going to facilitate what she is speaking about in this house tonight and how we can move forward, because clearly the people of my patch in the Latrobe Valley, who were going to have this Commonwealth Games, were revved up. There were people who had poured their heart and soul into this and were doing a lot of work anticipating this – and finances. That is something the government need to understand – their own finances. To then have 350 claims of executive privilege – I think it is a bit of a slap in the face.
Council divided on motion.
Ayes (20): Melina Bath, Jeff Bourman, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Sarah Mansfield, Bev McArthur, Joe McCracken, Evan Mulholland, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Rikkie-Lee Tyrrell, Richard Welch
Noes (15): Ryan Batchelor, John Berger, Lizzie Blandthorn, Enver Erdogan, Jacinta Ermacora, David Ettershank, Shaun Leane, Tom McIntosh, Rachel Payne, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney
Motion agreed to.
David DAVIS (Southern Metropolitan) (18:45): I seek leave to move:
That the clerks compile a summary document of the New South Wales Legislative Council’s procedure and processes concerning –
Leave refused.