A historic win against secretive government in more ways than one!

A South Australian Court of Appeal decision will open State governments up to significant scrutiny. It’s a big win against secretive government, Rex Patrick reports.

While not showing everything, Senate Estimates’ briefs are full of contemporary information about Federal Government Departments. They are prepared by officials to assist ministers and senior public servants in answering questions from senators about what’s going on inside government and about why they are doing certain things.

A simple Freedom of Information (FOI) request can get you access to Senate Estimates briefs, and journalists do it all the time. However, if you request senior official’s Estimates briefs in any State, you’ll get the door slammed on you. They’ll claim that releasing it to you under FOI will infringe the privileges of the Parliament.

Bill of Rights, 1688

When I first encountered this secrecy excuse, I had to do a double-take.

The 1688 English Bill of Rights, which ensures freedom of speech in the parliament, was a legislative response to the Crown trying to stifle debate in the United Kingdom’s House of Commons. Enacted by the British parliament in 1689, it is a key part of Australia’s constitutional inheritance from the UK.

Yet here we had the Crown using that law to stop information flows that would assist public discussion and debate.

They got it the wrong way around, though.

I had a look at the history of the use of the exemption and found myself reading a 2015 NSW Civil and Administrative Tribunal case where a self-represented person, a Mr Tebbutt, was pitted against the Crown Solicitor’s office, and could only muster “Claims for Parliamentary Privilege are not relevant as it would also be of an historical nature since the Premier and the Deputy Premier referred to by the respondent no longer hold those positions or the Ministerial posts that they also held at the relevant time” as an argument.”

In reality, that matter was argued without a contradictor to the NSW government’s case.

Mr Tebbutt lost the case, and from then on, the decision in his matter was quoted – case after case. The flipping of law crossed state borders and is now settled state law across the Commonwealth, in contrast to the view taken in the federal jurisdiction,

Long live secrecy, long may it reign.

The State v The People. Government spurns hard-earned privilege of 1688

Vengeance or repentance

And that leads up to the South Australian Supreme Court’s Court of appeal where I sought to overturn the long chain of corrupted case law.

The matter was argued pro bono on my side by Chad Jacobi KC, supported by Daniel Lorbeer, instructed by HWL Ebsworth Lawyers. They devoted a considerable amount of time to it, recognising the public importance of the case.

The basic argument was that the 1688 Bill of Rights, which provides protection to parliamentarians and any citizen appearing before parliament with protection against civil or criminal prosecution for what they might say, did not protect confidentiality.

Article 9 of the Bill of Rights, which came about after monarchs had repeatedly brought parliamentarians before the King’s Bench for things they had done inside parliament, states:

“The freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”

However, releasing a parliamentary brief to a member of the public does not involve impeaching or questioning in a court.

A historic tour de law

To get to its decision, the SA Supreme Court Justices had to walk through history from 1512 (Strodes Act), the 1641 Grand Remonstrance, the English Civil War, the 1649 beheading of King Charles, the ‘Glorious Revolution’ that saw James II deposed and succeeded by his daughter, Mary II and her Dutch husband, William III of Orange, and the 1688 Bill of Rights.

The judgement includes quotes you simply would not find in any regular judgement, including:

“And his blood still cries either for vengeance, or repentance of those Ministers of State, who have at once obstructed the course, both of his Majesty’s justice and mercy.”

We won, and the public won.

What’s next?

State governments won’t like this ruling. Indeed, they’ll hate the transparency that potentially flows from it.

The SA State Government might appeal the decision to the High Court where my lawyers will again face the South Australian Solicitor-General, but likely also the Solicitor-Generals of each jurisdiction who can intervene. So potentially it might be eight against one.

Transparency battles are rarely fought on an even playing field; they’re uphill all the way, but the view from the top is worth it.

FOI amendment bill. A transparency counter-revolution.