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

A decision by the South Australian Court of Appeal will open State governments to serious scrutiny. A great victory against the secret government, Rex Patrick reports.

While not exhaustive, the summaries of the Senate Estimates are full of up-to-date information on Federal Government Departments. These are prepared by officials to help ministers and senior civil servants answer senators’ questions about what is going on within the government and why they are doing certain things.

A simple Freedom of Information (FOI) request can get you access to Senate Forecast summaries, and journalists do this all the time. But if you request Forecast summaries from a top official in any state, the door will be slammed on you. They will argue that releasing this to you under FOI would be a breach of Parliament’s privilege.

Bill of Rights, 1688

When I first came across this excuse for secrecy, I had to think twice.

The 1688 English Bill of Rights, which guaranteed freedom of speech in Parliament, was a legal response to the Crown attempting to suppress debate in the UK House of Commons. This law, passed by the British parliament in 1689, is an important part of Australia’s constitutional legacy from the United Kingdom.

But here we have the Crown using this law to stop the flow of information that would assist public discussion and debate.

But they still got it wrong.

I took a look at the history of use of the exemption and found myself in a 2015 NSW Civil and Administrative Tribunal case; A self-represented individual named Mr Tebbutt contended against the Crown Solicitor’s office, stating only that “as the Prime Minister and Deputy Prime Minister referred to by the Respondent no longer hold those positions or Ministerial office, the Claims of Parliamentary Privilege are not only irrelevant but may be of a historical nature.” “their posts at the relevant time” was used as an argument.

In fact, this issue was discussed in a way that does not contradict the NSW government’s claim.

Mr. Tebbutt lost the case, and from that time on the decision in his matter was passed on in every case. The reversal of the law has crossed state lines and is now settled state law throughout the Commonwealth, contrary to the view held in federal jurisdiction.

Long live secrecy, long may it reign.

State vs People. Government denies hard-won privilege of 1688

Revenge or regret

This goes back to the Court of Appeal of the Supreme Court of South Australia, where I tried to overturn the long chain of corrupt precedent.

The matter was argued pro bono by me by Chad Jacobi KC, assisted by Daniel Lorbeer, trained by HWL Ebsworth Lawyers. Conscious of the public importance of the case, they devoted a significant amount of time to it.

The main argument was that the 1688 Bill of Rights, which gave parliamentarians and citizens appearing before parliament protection from civil or criminal prosecution for things they said, did not protect privacy.

Article 9 of the Bill of Rights, which came into existence after monarchs repeatedly brought parliamentarians before the King’s Chamber for things they had done in parliament, states:

“Freedom of expression and debates or proceedings in Parliament shall not be impeached or questioned in any court or place outside Parliament.”

However, making a parliamentary briefing public does not constitute impeachment or questioning in court.

A historical law tour

SA Supreme Court Justices to decide, 1512 (Strodes Act), Great Revolt of 1641, English Civil War, beheading of King Charles in 1649, World War II. He was forced to review history from the ‘Glorious Revolution’ and the Bill of Rights of 1688, when James I was deposed and replaced by his daughter Mary II and her Dutch husband William III of Orange.

The verdict includes quotes you won’t find in any normal trial:

“And his blood still cries for either revenge or repentance of the Ministers of State who have stood in the way of both His Majesty’s justice and mercy.”

We won, the people won.

What’s next?

State governments will not like this decision. Indeed, they will potentially hate the transparency that results from it.

The SA State Government could appeal the decision in the Supreme Court, where my lawyers would face the Attorney General of South Australia again, but the Attorneys General in each jurisdiction could also possibly intervene. So it could potentially be eight against one.

Transparency wars are rarely fought on a level playing field; It’s uphill the whole way, but the view from the top is worth it.

FOI amendment bill. Transparency counter-revolution.