Chair,
I would like the opportunity to make a statement to the Committee.
Firstly I would like to point out that if you had requested me to attend today’s hearing to explain my position on the document in question I would have willingly attended, just as I did on the 30 August when I appeared before this committee as you had requested and I answered your questions for around 2 hours.
So to be clear there was no need to go through the political theatre of a summons, if you had asked me, I would have willingly attended today.
Chair, one question I took on notice when I appeared before you was to consider providing an un-redacted copy of a letter between myself and Minister Groom.
The letter in redacted form had already been released following a Right to Information request where the delegate acting under the framework of the RTI Act, at arm’s length from me, determined that parts of the letter should not be released due to their referencing matters relating to Cabinet information as defined under the Act.
As you would also be aware Section 26 (1) (d) of the RTI Act states:
26. Cabinet information
(1) Information is exempt [from disclosure] information if it is contained in –
(a) the official record of a deliberation or decision of the Cabinet; or
(b) a record proposed by a Minister for the purpose of being submitted to the Cabinet for consideration; or
(c) a record that is a copy of, or a copy of part of, a record referred to in paragraph (a) or (b); or
(d) a record, the disclosure of which would involve the disclosure of a deliberation or decision of the Cabinet, other than a record by which a decision of the Cabinet was officially published.
So to be clear, the independent RTI officer exempted the section of the letter in question because it was Cabinet information as defined by the Act.
As the redacted paragraphs referred to Cabinet deliberations and processes I informed the Committee that I was not prepared to release an un-redacted copy and provided you with my reasoning in my response to the Questions on Notice dated 14 September 2016.
Since that time you have written to me two more times requesting a copy of the un-redacted letter. I have duly responded to you in letters dated 9 December 2016 and 27 February 2017. In all cases I have explained my rationale for not releasing the full letter.
In my letter of 9 December 2016 I stated, that the “Tamar Valley letter includes Cabinet information” and that required that the relevant sections of the letter to be withheld to ensure that the confidentiality was to be maintained.
Further, in my letter of 27 February 2017 I confirmed that I would not be disclosing the Tamar letter on the grounds that:
“…in considering your request in the context of established precedent and convention, my consistent position has been that it is not appropriate to release the Tamar Valley letter in an un-redacted form to the Committee on the grounds that the letter includes information that directly relates to cabinet deliberations. Accordingly, it would be contrary to the public interest for the un-redacted version to be released either confidentially to members of the Committee or the public more broadly.”
I made, I believe, the position perfectly clear; however as I have already pointed out, if you had requested that I attend another hearing of this Committee to explain the Government’s position I would have willingly attended without needing to be summoned.
Chair, the precedent of maintaining Cabinet confidentiality is well established. It has been a cornerstone of the Westminster system of government for centuries and Governments throughout history have preserved this important convention and equally importantly, parliaments have respected it too.
A system of responsible government, in which Cabinet takes collective responsibility for its decisions, requires the promotion and maintenance of full and frank deliberations in Cabinet. Any limitation on this freedom would severely undermine the performance by Government of its executive duties.
This fundamental tenet is recognised in the RTI Act, which was supported and agreed to by both Houses of this Parliament, as it provides for information pertaining to cabinet deliberations and processes to be kept confidential. This has long been accepted practice and Parliaments have supported this practice in the past.
By way of recent example, in 2012 the former Government refused to provide information to a Tasmanian parliamentary committee on the basis it was Cabinet material. I note that a summons was not issued in circumstances similar to this one today.
Chair I will now refer to a letter that was prepared under the previous Government and signed by the then Premier Lara Giddings in 2012 (a copy of the letter is available here - http://bit.ly/2nl0LUR)
The former Premier wrote to, the Committee secretary for the Legislative Council Government Administration Committee “A” in relation to the cost reduction strategies of the Department of Health and Human Services. In that letter she stated:
“Cabinet documents, which include the advice provided to the Cabinet, are a class of documents that, irrespective of their actual contents, belong to a class which the public interest requires to be withheld from production. That this is so has been long recognised by parliaments and the courts alike. Documents in this class are typically those which reveal the deliberations of the cabinet or the views of individual members of the Cabinet expressed before the Cabinet has reached a concluded and collective view on a matter of public policy.”
The letter goes further and specifically quotes from a relevant High Court judgement which I will for the benefit of the committee read parts of today:
In the case of Commonwealth v Northern Land Council (1993) 176 CLR 604 the High Court unanimously said at para 6:
“…. it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential ……… Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government.
“The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticize and publicize their participation in discussions in the Cabinet room.
“It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited.”
Chair it is rare that I find myself in agreement with the former Premier but in this matter in respect of the release of Cabinet information I am. I will table Ms Giddings letter with your agreement.
Chair, the letter you seek from me has been redacted by an independent RTI officer under section 26 of the RTI Act because it very clearly outlines matters in respect of the processes and deliberations of Cabinet.
This Committee however appears prepared to forsake hundreds of years of precedent and practice including actions taken by previous Tasmanian Governments, in the pursuit of the release of information that forms a part of the cabinet decision making processes of Government.
Chair, before I conclude I would like to make some general observations.
I believe that over the course of this Inquiry that information received by this Committee has entered the public domain without being formally released by the Committee.
It is also unfortunately a statement of fact that there was a leak to the media last week regarding the intent of the Committee to summons me here today.
On Monday evening the 20th of March the Government was contacted by the ABC which had been informed that I had been summonsed. An email which included the following comment was received by our media office at 6:24 pm from Richard Baines at the ABC:
“As discussed I've been told that the Treasurer has been issued a subpoena to give an unredacted copy of the Tamar Valley Power station advice.”
I hadn’t received a summons at that time nor did I receive any contact from the Committee until around 10am the next morning when the Chair contacted me to apologise for the media knowing about the Committee’s decision before I did and to inform me that I would be summonsed.
Chair, to state the obvious, prior to your conversation with me there are very few people who would have known that a summons was to be issued and the vast majority are here today in this room.
I don’t intend to repeat on the public record the conversation we had, but suffice to say I believe that you shared my view that this latest leak raised serious questions about the integrity of the Committee and its processes.
Chair, I and the Government agree that the issue of energy security is very important to the State, that’s why we supported the referral of this matter to the Public Accounts Committee for consideration.
PAC is an important and highly respected Committee of the Parliament, and it is deeply unfortunate that this particular inquiry has become so politicised, in a way previously unseen of PAC inquiries.
It is my view, that the repeated leaks of information from the Committee in an attempt to score political points have irreparably tainted this inquiry and throw into doubt its integrity, and the validity of any finding it might make.
That being said as the letter contains cabinet information as I have stated the Government will not be releasing an un-redacted copy of the letter that you have requested.
Thank you.