Wednesday, 11 September 2024

Production of documents

Commonwealth Games

David DAVIS (Southern Metropolitan) (14:06): I move:

That this house:

(1) notes:

(a) the motion proposed by Mr David Limbrick MLC and resolved by the house on 1 May 2024 requiring the Leader of the Government to produce documents specifically outlined in appendix D of the select committee’s interim report on the 2026 Commonwealth Games bid;

(b) the government’s response by way of a letter from the Attorney-General dated 30 May 2024, tabled in the house on 31 May 2024, making a claim of executive privilege over 350 documents in full and three documents in part;

(c) that the Leader of the Government has not complied with standing order 10.03 that requires, like is the practice in the New South Wales Legislative Council, the documents to be lodged with the Clerk to permit:

(i) Mr Limbrick to examine the documents over which a claim of executive privilege has been made and, if appropriate, Mr Limbrick to write to the Clerk disputing the validity of that claim;

(ii) the President to appoint an independent legal arbiter to evaluate and report within seven calendar days as to the validity of the claim;

(iii) the Clerk to release the disputed documents to that independent legal arbiter;

(2) further notes that the Leader of the Government has not complied with the requirements of the standing orders and may be guilty of a contempt;

(3) requires the Leader of the Government to comply with the standing orders and lodge the documents with the Clerk by 12:00 noon on 15 October 2024;

(4) permits that if the Leader of the Government has not complied with standing orders 10.01 to 10.03 in relation to all the documents requested in the resolution of the Council on 1 May 2024 relating to the 2026 Commonwealth Games bid by the date and time specified in paragraph (3), the Council will, at the conclusion of formal business on Tuesday 15 October 2024 (or if formal business does not occur that day, at the conclusion of formal business on the next sitting day):

(a) give precedence for a non-government member to move, without leave, ‘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’; and

(b) the time limits for debate on a motion moved under paragraph (4)(a) will be 8 minutes for each member and a total overall time limit of 50 minutes.

I am pleased to move motion 585 that this house notes (a) the motion proposed by Mr David Limbrick MLC and resolved by the house on 1 May 2024 requiring the Leader of the Government to produce documents specifically outlined in appendix D of the select committee’s interim report on the 2026 Commonwealth Games bid; (b) the government’s response by way of a letter from the Attorney-General in May – I should say on that response that there were 350 documents in full that were redacted and three documents supplied in part, so three out of 353 in part were provided; and (c) that the Leader of the Government has not complied with standing order 10.03 that requires, like is the practice in the New South Wales Legislative Council, that the documents be lodged with the Clerk to permit Mr Limbrick to examine the documents over which executive privilege has been claimed and if appropriate Mr Limbrick to write to the Clerk disputing the validity of the claim, the President to appoint an independent legal arbiter to evaluate and report within seven calendar days as to the validity of the claim and that the Clerk under that standing order be able to release the disputed documents to the independent legal arbiter.

I should just say as I move through this motion that in New South Wales this procedure is routine and accepted, and the arbiters have been respected jurists or former judges – people of great and impeccable quality whose independence and judgement have been respected by all sides of the house. I should say that this standing order was written with the lessons from New South Wales in mind; it was directly lifted in its substance from New South Wales. So I just think it is important that especially those newer in the house actually understand that that is the history.

Point (2) in the motion further notes that the Leader of the Government has not complied with the requirements of the standing orders and may be guilty of a contempt. That phrase comes directly from the interim report that was tabled yesterday of the Select Committee on the 2026 Commonwealth Games Bid, and I will come to that in due course.

Point (3) requires the Leader of the Government to comply with the standing orders and lodge the documents with the Clerk by 12 noon on 15 October 2024 – that is the next sitting Tuesday. There is plenty of time. These documents were already identified by the relevant departments. They were identified and their existence was communicated to the select committee that Mr Limbrick very ably chairs. The select committee said, ‘Look, we want those documents. Despite you telling us we can’t have them, we want them.’ Mr Limbrick then moved the relevant motion in this chamber, understanding that the government might have legitimate claims over some documents and that that would be entirely in order but that there is a procedure in the standing orders to test those claims and to do that with great fairness and responsibility, in this case on Mr Limbrick, to behave honourably in that process and responsibility where the Clerk in effect has control of the documents in a way that protects them and that there is the capacity under the standing order to appoint that independent arbiter who could adjudicate fairly and impartially without rancour in any way on the matters from a legal perspective.

Point (4) permits that if the government has not complied with standing orders 10.01 to 10.03 in relation to all the documents requested in the resolution of the Council on 1 May 2024 by the date and time specified, which is 15 October at noon, the Council will at the conclusion of formal business on Tuesday 15 October 2024 – or if formal business does not occur that day, at the conclusion of formal business on the next sitting day – give precedence to a debate. The debate would be on the topic:

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.

There would be time limits on that: 8 minutes per person, up to 50 minutes. It is actually a modest debate. It is not terribly intrusive. But it is an opportunity for members, if the government has not complied, to make their points.

I am foreshadowing that Ms Bath will move an amendment that instead of doing that debate on the Tuesday, if the government has not provided the information, it would occur on the Wednesday, so that would be 16 October at the commencement of government business. I understand Mr Galea may have similar thoughts on that too. I know Ms Bath will move it – I cannot move an amendment on my own motion – and she has proposed a different way forward. I am aware of that, and indeed I can foreshadow that she will make a contribution in that regard, if members debate that with that in mind.

We think the way the government is responding to this is wrong. The committee looked at this closely. The committee brought the report forward and thinks that this is wrong too, and we have communicated that very clearly through the report. Mr Limbrick obviously tabled that report on behalf of the committee yesterday, and he made some very straightforward points. The committee’s findings were that:

The Government has not complied with the process for claiming executive privilege under Legislative Council Standing Orders 10.03 to 10.05 for documents that were ordered for production by the Legislative Council on 1 May 2024. These documents are relevant to the Committee’s Inquiry and the Government’s failure to engage with the process for claiming executive privilege, including the process for disputing the validity of a claim of executive privilege, may impede the Committee’s ability to properly carry out its functions as set out in its Terms of Reference.

The select committee has got terms of reference to look at the Commonwealth Games, to get evidence, to take various submissions, to do whatever research it believes is appropriate and to come back with reports to the Parliament in a timely way, as outlined by the terms of reference.

In the Committee’s view, the Government’s own self‑assessment of Executive privilege without independent review is not only a contravention of the Standing Orders but a direct impediment on the Committee’s ability to conduct a thorough and transparent inquiry.

This is very clear. The committee has taken a strong and clear view, and it has done that because what the government is doing is quite wrong:

The Committee noted in its previous interim report that it does not accept the Government’s wide definition of what is covered by the scope of executive privilege. Although the Committee acknowledges that the Government has a different view, there is a prescribed process to resolve such disputes and the Government has not complied with this.

What we are trying to do here is to be as reasonable and sensible as we can, but there must come a point when it is just not acceptable for the government to thumb its nose at the committee, at the chamber and ultimately thereby at the Victorian community. The committee’s report, at page 3, says:

Since the Attorney-General’s response was tabled, the Government has not provided the documents with a claim of Executive privilege to the Clerk for inspection by Mr Limbrick as required under the Standing Orders.

The non-provision of these documents has impeded Mr Limbrick as mover of the motion from progressing the process to resolve claims of Executive privilege through an independent legal arbiter.

The committee goes on, and this is where the words in the motion come from:

The Committee also notes that failure to properly comply with orders of Parliament or its committees to provide documents may be considered a contempt.

And that is correct. That is not quite what we are saying at this point, but the government does need to begin complying with these motions.

The position for Victoria with the Commonwealth Games was a travesty. At least $600 million, according to the auditor, has been squandered. It is a huge amount of money, and we have nothing at all to show for it other than serious and significant reputational damage. That is the sad story of the Commonwealth Games. Nothing could highlight that more than what occurred in the recent period, when we saw the Scottish government, Glasgow, step forward to say, ‘No, we’re going to do the games, and we’re going to be able to run them for the amount of money that Victoria paid for breach of contract.’

A member: The full games?

David DAVIS: Well, a fair bit of them, it seems. It seems, a large part of them.

Members interjecting.

David DAVIS: Largely it seems that they are going to be able to do the games with very little in the way of additional supplementation.

The point here is that the committee’s legitimate task of examining what went wrong with the Commonwealth Games is very related to this. If Scotland can run them for maybe $400 million – I do not know the exact figure; we will soon know, in due course, but it will not be $7 billion. That is what the Premier here claimed it was going to cost – $6 billion to $7 billion. The auditor has thrown cold water on that. He said that is not right; he said a lesser figure, but it is still many, many, many billions away from what Scotland is proposing to run the games for.

I am a supporter of the games. I went to the games headquarters in London when I was over there last year. But it is pretty clear that damage has been done to Victoria’s reputation, and that was communicated to me very clearly by a number of regional authorities in Europe at the time when I was there. I was over there at the time when the terrible news came through that the Commonwealth Games were going to be cancelled, and indeed I think Victorians should be very clearly aware that the damage is actually pretty substantial to Victoria’s reputation. That is going to linger for a long, long period into the future. But there are questions here about why Scotland and Glasgow can run the games at a vastly cheaper price than the Victorian government.

The Victorian government may have had problems with its models, and I can concede that the model may not have been one that worked, but the point here is that the government should have examined that before it headed off on this frolic, made the decision to head off into this territory; it should have done the proper work. One of the tasks of our committee, as Mr Limbrick well understands, is to actually examine that process and make sure it never happens again, make sure that those errors are prevented from happening again, and put in place proper checks and balances to stop it happening again. But we need to get to the documents. We actually need to see those documents rather than have the documents hidden as the government tries to sweep all of this embarrassing stuff under the carpet. That is what it is doing.

It is a cover-up, pure and simple: ‘There are 353 documents, of which you can have part of three. For the other 350 documents you can whistle Dixie, and we’re not going to comply with the process in the chamber. We’re not going to comply with that process; we’re just going to tell you to whistle Dixie.’ Well, I think that is wrong. There is a process, and that is what my motion seeks to get to. It seeks to say ‘Let’s be fair. Let’s be very direct with the Leader of the Government’ and to say ‘Actually, under that standing order, you do have to produce the documents to the Clerk so that Mr Limbrick can examine them.’ Maybe he will agree with the government. I do not know because I have not seen the documents. Nobody has seen them other than the government. But there is a process for them to be examined and, if Mr Limbrick disputes some of them, to get the independent arbiter in and to look at it that way. That seems to me to be an entirely fair process. It works in New South Wales.

Some say no government has complied with this standing order, and strictly that is true, but let me just say this standing order has only applied since 2014. So this government, the previous one and the one before that were meant to be bound by this standing order and these provisions. No government before then had this standing order in place. So I want to squash the natural thing of the Labor Party to say, ‘They’re all as bad as everyone else.’ Actually, no, the truth is that that standing order was brought in to come into effect with the new Parliament after November 2014.

Members interjecting.

David DAVIS: Well, that standing order was not there then.

Michael Galea: Why didn’t you bring it in?

David DAVIS: It is a matter for the house, but actually the process of documents motions was commenced in the Parliament even before that. The formalised standing order that we are talking about now only came into operation after the 2014 election. People should understand that that is actually the history, and they should understand that it was agreed by all parties at the end of 2014 as the Parliament drew to a close. There were some changes made to the standing orders – agreed changes – and this was one of them. That is the history of that standing order, and I think it is important for people to know that history very, very clearly.

This is a sensible motion. It is a clear motion. It is about an important topic. We want to see those documents. Mr Limbrick is the one who brought the motion. He has a right under the standing orders of the chamber to have this processed properly, and I call on the chamber to support this motion and the Leader of the Government to ultimately comply with the direction of the chamber.

Michael GALEA (South-Eastern Metropolitan) (14:23): I rise to speak on the motion put forward by Mr Davis today in relation to documents as they relate to the Select Committee on the 2026 Commonwealth Games Bid. At the outset there are a few procedural, technical things to go through and to cover off. Firstly, whilst this inquiry was instigated as something of a political witch-hunt by those opposite – and indeed we have seen the best efforts of Mr Davis and others to turn it into such a political circus – what we have also had is a very good and thorough inquiry, as led by our chair, Mr Limbrick, and I will take a moment to acknowledge that. Despite the best efforts of Mr Davis, as can be seen in various records of public hearings, to perhaps infer and conflate and draw all sorts of conclusions that are not entirely there, it has actually been a very well run inquiry.

I will refer to a few different aspects of what we talked about in the inquiry in the first place, but I think I will start with the procedural, technical aspects of that. Firstly, in terms of –

Members interjecting.

Michael GALEA: Yes, I appreciate at least that Mr Davis acknowledges that the standing orders to which he refers came into effect immediately after the last Liberal government left office. Despite the fact that he had been a member of Parliament by that time for about 18 years and had been in fact a member of the previous government, he had not seen fit to propose the imposition of those accountability measures which he claims to hold dear to him. He did not see fit to raise them when he had perhaps a bit more of a say in order to bring them in. As a minister in this place he would have had certainly a fair bit of weight to carry in that. So it is interesting that apparently what is critical now is not so critical when those opposite are in power. I actually was not intending to go into an exhaustive list of all the many documents motions that were ignored by the previous government, but I note Mr Davis himself acknowledged that. He anticipated that that would be debated, because he knows, again, as a minister of that government, that it was actually the case that documents motions were frequently ignored by his government – perhaps even by him as a minister, I do not know, but certainly by his government. So I will take issue with that.

But while he is absolutely determined to fixate and make out that this standing order procedure is as crystal clear as can be, it is also worth noting as well that the constitutional powers on this are not nearly as clear-cut as he would like to make them out to be. Mr Greg Taylor, who has written extensively, perhaps more than anyone else, on the Victorian constitution, actually points to the genesis of executive privilege being claimed in Victoria as being derived from those powers afforded to the Parliament, as was the case for the House of Commons of England, Wales, Scotland and, as it was then, Ireland, back in the 1850s, which do have an explicit carve-out for what was then called Crown privilege, better today known of course as executive privilege. There are certain documents for which the government has claimed executive privilege. There are many more documents which have been provided to the committee in full or redacted form, and as a member of the committee I have had the chance to look at those documents. Though I cannot talk about internal discussions, what I can certainly say is that the committee website has published a vast number of documents, so members of the public can draw from that what they will. I will not talk about measures we went to to get there, but it is pretty self-evident that there have been a number of documents already published and already looked at by this committee.

Again, I do not think I should have to really explain this to Mr Davis because, as I say, he was indeed a minister under the previous government, where he refused to countenance such measures that he is trying to exploit today, but the role of executive privilege covers several very important privileges that are actually important to protect. The first amongst them is of course cabinet-in-confidence deliberations. It is very important for the effective governance of any level of government to have relevant documents when they go to cabinet level be able to be discussed freely and frankly and openly, and any advice sought from officials and any advice given from officials to decision-makers should also be given in a manner which is free and frank. If you start to impose too far against those privileges, what you will then see is that that advice will not actually be able to be provided in such a frank and open manner, which would have chilling effects indeed on the governance of the state.

The other very important consideration of course is that there are certain documents where executive privilege covers various commercial-in-confidence arrangements, the disclosure of which could actually pose a significant risk to the state’s finances or otherwise the state’s standing, and it is really important. I know that this morning in the short-form documents motion put by Ms Crozier we saw that the Liberals lately have disregard for such privileges, such confidentiality clauses, because we saw them try and publish a document that was provided to the government on the condition that it was not to be published, and this is very much in the form of that. But again, further there is also scope for potential legal advice to the executive government or any other material that may otherwise jeopardise the interests of the state of Victoria, and these areas and these facets have all been stipulated by the Attorney-General in her response to these motions, to which Mr Davis has referred already, and Mr Davis is well aware of that.

I will make one other slight detour into the procedural side of this. As we confirmed I believe from interjections across the chamber during Mr Davis’s remarks, Ms Bath will be moving an amendment to change the –

Melina Bath interjected.

Michael GALEA: Foreshadowed, yes; we will stick with foreshadowed. We do appear to all be of the same mind on at least one thing today, because I had indeed intended to move such an amendment myself. But I am very pleased that Ms Bath will be instead moving such an amendment, and not to foreshadow too deeply, but I understand from Mr Davis’s assurances in his contribution that rather than interfering with government time on the Tuesday of the October sitting week we will now indeed be taking advantage of the government business time on the Wednesday, which is a sensible thing.

I think the most important thing as well to reflect on is that this is a government that has been elected by Victorians to deliver an agenda and a legislative agenda and indeed a mandate, and I will be cautious, given that we have already had one motion take up government business time on a Tuesday of a sitting week, that we not make a habit of interfering with those two significant days, Tuesdays and Thursdays, notwithstanding the fact that the government is in a position to support an amendment which would give up even more of its time, which it is not required to do. It is not ordinarily required to use government business time to debate such matters, but it is indeed prepared to support if need be that debate now happening on the Wednesday of government business time, so I look forward to seeing the amendment put forward by Ms Bath shortly.

There are several other things, and I could go into great detail as to their substance, noting that it was a wideranging contribution by Mr Davis on the nature of the Commonwealth Games themselves. He was at great pains to talk about the supposed reputational damage to the state of Victoria, but what he did not say was that we had convincing evidence put to us at the inquiry that there has not actually been that reputational damage. The reason, in my view, that he did not say that is because he knows all too well that the stakeholders that came before us, including at our most recent hearing academics who had done a paper specifically on this issue, found actually that there was no major reputational damage to Victoria – none that they could find at all in fact. Indeed Mr Davis was there and Ms Ermacora was there, and she knows all too well as well.

So whilst the Liberals will continue to clutch at straws and do whatever they can – and I would like to have more time to discuss this – the final thing worth bearing in mind is that whilst we were not prepared to throw an inordinate amount of money into the Commonwealth Games the reason Victoria put its hand up in the first place was to drive regional development, and through the $2 billion regional package we are continuing to do that. As the latter half of our inquiry continues I am very much looking forward to seeing the progress of the $2 billion regional package.

David LIMBRICK (South-Eastern Metropolitan) (14:33): Effectively, what this motion is calling for is simply really for the government to follow the rules of the standing orders of Parliament. Since I was elected chair of this committee I have taken the role very seriously and tried to undertake it to the best of my ability in a professional way. The committee resolved that there were a number of documents that it requested from the government, and the government came back and said, ‘There are 353 documents, and we’re going to give you partial versions of three and claim privilege over the 350 remaining documents.’ The committee clearly did not agree that all of those documents must necessarily contain privilege. I agree with Mr Galea and Mr Davis that executive privilege is an important function and it is a real thing, and sometimes it is not in the public interest, for various reasons, for things to be put into the public domain, but that is exactly why this Parliament has a process for resolving these sorts of issues.

It is actually quite an ingenious process because it inserts a tension into the process. How it is meant to work under standing orders 10.03 and 10.05 is that the Leader of the Government hands over these documents to the Clerk and the mover of the motion, which in this case was me. I would also point out that, even though I requested these documents using my general business slot, of which we only get two per year, these are not documents that are requested by me personally. They are not requested by the Libertarian Party. They are requested by the committee. As I understand from consulting with the committee staff, who I thank for their advice, there are no mechanisms through committee powers to test executive privilege, but there are in this chamber. Therefore I used my general business slot to move forward this motion to be able to test executive privilege.

The mechanism itself inserts a tension into the process. If I examine these documents, it may well be the case – as Mr Davis points out – that I actually agree with the government on their claims that 350 documents are covered by executive privilege. In fact I would find it very odd if all of the claims were not covered by executive privilege. But it inserts a tension. If I challenge those claims, I need to be reasonably certain, because otherwise it will go to the arbiter and then the arbiter will come back and say that I do not know what I am talking about. There is a tension in that process, and if the government does comply with this and I do find that maybe some of these documents should not be subject to executive privilege – I think that anyone in that position would be very careful before referring that to the arbiter, because it would be quite embarrassing for the arbiter to come back and say, ‘You are wrong.’

Nevertheless, it is the role of this committee to firstly get to the bottom of what has happened with the decision-making processes, and a lot of that involves looking at documents by government and also through public hearings, submissions and this sort of thing. But I also share the view, and I hope all the other committee members share the view, that we can ultimately form recommendations in the final report that will prevent this sort of thing happening again. I hope that the government and the opposition agree with that. We have wasted a vast amount of taxpayers money here on what has happened, and there has clearly been a failure. It is my sincere view that if this committee can provide useful and actionable recommendations that the government could follow which would help prevent something like this ever happening again in the future, then I think the committee will have done some good work. That is exactly what I intend to do. But in order to do that good work, we need to see some of these documents. So that is why I will be supporting this motion.

It is my understanding, as it is pointed out in the motion here, that almost exactly the same process exists in the New South Wales Legislative Council, and it is used routinely and without too much drama, as far as I am aware. So we have this process, and I think it is quite an ingenious process. I think there are sufficient tensions in the process to prevent it being abused either by government through over-claiming executive privilege or by challenges to executive privilege claims, because you would not want to call in the arbiter only to be told that this should be covered by executive privilege and that the government was right.

Nevertheless, the committee has formed the view, and I am of the view, that not all of those documents should be subject or probably are subject to those claims – although we do not know, as has been pointed out, because none of us has seen them. We can go through that process, and it is entirely possible, as Mr Davis has pointed out, that I may agree with the government. I do not know yet; I have not seen them. We do know that they exist. In fact they have been identified in the report. Judging by the descriptions of some of these documents, some of them are clearly covered – you would imagine – by privilege, and some of them you would question why they would be covered by privilege. Some of them are obviously cabinet briefings and stuff like that, which clearly would be covered by privilege. For some of the other ones it is less clear why privilege would apply in those cases. Obviously I am not an expert on what is and is not covered by privilege, which is why I would be relying on the advice of the Clerk, and I hope everyone in this chamber also has faith in their ability to be able to assist me in coming to some sort of judgement on whether or not a dispute should be lodged with an independent arbiter. With that, I will be supporting this motion, and I hope that everyone supports this motion.

I would say that this particular mechanism of Parliament has never been used since it has been instituted. If the government has problems with this and does not like this mechanism, I cannot speak on behalf of the rest of the chamber, but I am certainly open to talking about, ‘Well, let’s come up with a different mechanism or something that works.’ I can see that maybe handing over cabinet briefings to movers of motions and trusting that they will remain confidential might be problematic. Maybe things could –

David Davis interjected.

David LIMBRICK: Not in New South Wales. One option might be to have documents go to an arbiter as a first port of call. I do not know. There are various other mechanisms that could happen, but what is not acceptable is just simply ignoring the standing orders. I do not think that is acceptable, and that is basically what this motion is calling for – to stick with the standing orders and hand over the documents so we can then go through that process of trying to find out which of those documents executive privilege should pertain to.

Melina BATH (Eastern Victoria) (14:42): I am pleased to rise to make a contribution today on motion 585 standing in Mr Davis’s name. I concur certainly with Mr Limbrick’s comments and Mr Davis’s before. I will not reiterate the entirety of the motion – it is standing there on the notice paper for all to see – but I will move an amendment, which the Liberals and Nationals foreshadowed would occur. It is a very simple motion. I think it has – not with the Greens, who I have spoken with just now – potentially caused a bit of consternation in the government, but it is a very simple motion, which I will read into Hansard. I move:

That in paragraph (4), omit the words and expressions ‘at the conclusion of formal business on Tuesday 15 October 2024 (or if formal business does not occur that day, at the conclusion of formal business on the next sitting day)’ and replace them with ‘at the start of government business on Wednesday, 16 October 2024’.

The entirety of the motion stands as it is. All that is doing is moving the debate from one day to Wednesday the 16th, during government business at that time. I have been in this place for quite some years, and I note that regularly that time slot is not used by the government. Often we just finish and go on to the conclusion of the day, so this is a very appropriate time slot and will not interfere with the government business program on a Tuesday or a Thursday. I certainly ask the house to support that amendment.

I am on the Commonwealth Games committee, and we have certainly spent a lot of time listening to I think a very compelling case in relation to, basically, the incredible muck-up and con and disappointment and disbelief for many, particularly in regional Victoria, that this came to this eventuality. We also have spent a lot of time I think doing an arm wrestle with government bureaucracy and government ministers about the production of documents. Indeed Mr Limbrick in his time slot on behalf of the Commonwealth Games committee actually requested certain documents. We were given three out of 353 – that is not a very high quota. That is what this is about – for the government to provide those documents to Mr Limbrick as the head examiner, we will call it, in this particular space, for him to have a look and where appropriate then to check and see whether they actually, in his opinion, have executive privilege. If not, go to an independent arbiter. We have heard that this very formal and positive arrangement occurs in the New South Wales upper house.

In looking at some of the executive privileges called on some of the 350 documents outstanding – I have actually just contacted the secretariat of our committee to ensure that these document names are tabled, so it is out there in the public domain, and I am not saying anything that is in confidence of the committee – I fail to understand, and therefore the process needs to go ahead. The process needs to be seen, assessed, arbitrated on and then delivered, where that privilege is not upheld. There is the Commonwealth Games Village Morwell Stormwater Management Plan report. There is the Commonwealth Games Village Morwell Phase 1 of the Geotechnical Investigation Interim Report and the Commonwealth Games Village Morwell Bushfire Impact Assessment Statement. I would have thought that those sorts of documents should not capture the government’s excitement about executive privilege and should pass through the house and the committee and be seen by the public. I could go on, with the Bendigo Stormwater Management Plan et cetera, Mrs Broad. The non-government members, we will say, of the committee certainly feel that they have been frustrated by this situation, as do many in the community in relation to the whole Commonwealth Games debacle.

I was thinking about this the other day in terms of an analogy. I was really thinking that at the time that this all came out we had – if we use a card-playing analogy, and this government is certainly pressing those cards close to its chest at the minute – we had the then Premier as the joker. I am not saying he is a joke, but I am saying as an analogy he held all the cards. He stood up there; he ordained this vision. We had the now Premier as the right bower. She was games delivery, and she knew all along what was happening. We have seen that in some of the dates that we had presented to our committee and in the various meetings that have been had. We saw the Honourable Shaun Leane as the left bower, and then it turned into Minister Shing, and some of the vision that is there that has not been realised. Of course for some of the trump cards we also had the bureaucrats. Visit Victoria came and said there was nothing to see here, and it wasn’t a bad influence on broader Victoria.

However, when we drill down into some of the comments from people in my electorate it is just astounding. These are the people that we are actually trying to protect next time. These are the people who were significantly hurt and distressed. Their expectations were built, the community’s expectations were built, and then they were torn asunder. I have Mr Garry Silvester from the Latrobe Valley Badminton Association. I will not go on, but I will read a couple of lines:

… I have been around for quite some time and have experienced many highs in the badminton field – and a very big low with the cancellation of the Commonwealth Games in my backyard … the cancellation of the Commonwealth Games personally hurt very deeply. I am still not over it …

Then he goes on to say:

A strategic plan?

Where is the strategic plan?

… we are fighting for lines …

on the courts.

These are some of the impacts. We can go on with Katie Reardon of Farnham Court and her heightened embarrassment when the Commonwealth Games were cancelled on 18 July 2023 by said Premier at the time. She said she was the laughing-stock of the English team, because they were going to come over and be Team England in Morwell in her venue, and she was going to support them. They said they could never trust an Aussie again.

Going to the point of the lead speaker Mr Davis, certainly our reputation is tarnished, and from that we need to understand what went wrong and to not repeat it, and that means getting to the in-depth part of some of these documents. As I said, some of them I cannot believe the government is claiming executive privilege over. Also, I looked up some of the 10 fields, so it is a reduced field, but there are still some considerable activities and events potentially that Scotland will be putting on for the Commonwealth Games in 2026, and there still will be that excitement and that flowthrough and the quality of our athletes going there. Of course along the way we know the Auditor-General has come out saying it was $589 million or round it up to $590 million, because some of that money was also – what was it? – $1.27 million for the government to fight in legal cases for documents not to come through.

I ask this house to support this motion. It is a very reasonable motion. It is about procedural fairness in this Parliament. I hope that we can get to the bottom of the whole experience, learn the lessons and direct government, future and current, never to do this again so that people like Katie, Gary and multiple others do not have to sit in front of an inquiry and put their heart on the line and their sadness and loss and civic pride loss for their community.

Sarah MANSFIELD (Western Victoria) (14:52): I thank the opposition for bringing forward this motion today. Can I indicate at the outset that the Greens will be supporting this motion. We will support the original motion but are very happy to support the amendment that has been put forward by Ms Bath as well. While this debate relates to issues encountered in the Commonwealth Games select committee inquiry, it also relates to a broader challenge that this Parliament is repeatedly facing when it comes to the production of documents by this government. We once again find ourselves – we have had several debates now on this subject – debating the Labor government’s blatant disregard for the rules of this Parliament, rules that have been established to ensure fair and transparent processes that underpin good governance that is vital for our democracy.

When requests for documents are made by this Parliament, the government has routinely failed to comply with those requests. While in recent times they have made more effort to provide at least a response to those requests, we are seeing an extraordinarily high number of those documents being withheld under the guise of executive privilege. The Commonwealth Games documents, which are the subject of this motion, are an excellent case in point. As has been stated, of the 353 relevant documents, the government has claimed executive privilege over all but three. It may well be, as others have said, that these are indeed very sensitive documents that would be very likely to compromise, say, cabinet deliberations or significant commercial arrangements were they to be released to the Parliament, but we have no way of knowing this, and the very little we do know about these documents raises serious doubts about the validity of these claims. I think Ms Bath has outlined multiple examples of documents where it is certainly questionable that executive privilege applies. A cursory look at the description of the Commonwealth Games documents being withheld would I think raise suspicions by many members of the public.

I have got a few examples to add to those that Ms Bath outlined. There is a final draft noise assessment report for the Commonwealth Games village in Ballarat. Apparently releasing that would:

Reveal high-level confidential deliberative processes of the Executive Government that would otherwise genuinely prejudice the necessary relationship of trust and confidence between a Minister and public officials.

There is also a final draft dust risk assessment report – same thing; that would also reveal high-level confidential deliberative processes – or a draft odour risk assessment report, which is also far too sensitive to be released. Now, they are top secret. Perhaps these documents do in fact contain important and sensitive information, but any ordinary person would be forgiven for being at least a little bit suspicious.

I confess that I actually do not have a lot of interest in these particular documents. I do not think they are going to make much of a difference to our deliberations. I do not think an odour risk assessment report is going to change the findings of the Commonwealth Games inquiry. But I raise them to demonstrate the absurdly broad application of executive privilege claims by this Labor government. We have many other examples that have come up through different documents motions this term where executive privilege claims have been made, and I believe in some of these instances it is much more likely that some of the documents being withheld are in the public interest. We only have to look at the request for documents relating to the demolition of the 44 public housing towers: 158 relevant documents were identified. 146 of these were not released, because of claims of executive privilege. The government has created their own very wideranging definition of executive privilege. It covers off so many things and it would take so long to read out their definition that I am not going to use my time to do so, but if anyone is interested they can find the full definition in the first interim report of the Commonwealth Games select committee.

By contrast, in New South Wales the government there can only claim executive privilege in relatively narrow circumstances: where those documents directly or indirectly reveal the deliberations of cabinet – simple. This is to ensure the ability of the Parliament and the executive – both of them – to function as they are supposed to. It beggars belief that all of the documents that are being claimed to have executive privilege are such sensitive documents that the Parliament cannot be privy to them. The government may not want to release these documents, but executive privilege is not a licence to avoid scrutiny just because the government does not want it.

Let us put aside the appropriateness of the definition of executive privilege used by this government. The government does indeed have every right to make claims of executive privilege, and I think that has been acknowledged by all members who have spoken today. However, if they stand by these claims they would naturally have no qualms about following the rules of the Parliament if and when claims of privilege are made. This Parliament has standing orders, which were established in 2014, that clearly set out steps that must be followed when claims of executive privilege are made. Standing order 10.03 requires that when the government makes a claim of executive privilege they must deliver the documents to the Clerk by the time required under the resolution, they must make them available to the mover of the motion only and those documents cannot be published or copied without an order of the Council. The mover of the motion can then make an assessment, as Mr Limbrick has pointed out, as to whether or not they agree with this claim of executive privilege, and if they do not agree, they can notify the Clerk to raise a dispute. In the event of such a dispute, standing orders 10.04 and 10.05 outline a process by which an independent legal arbiter can be appointed to review the claim and report back to the Council. This is a very robust process; I actually think it is a pretty good one, and as we have heard, it works in other jurisdictions. This is the exact same process that applies in the Parliament in New South Wales. It applies federally. They have exactly the same rules.

However, in Victoria not once since these standing orders were established has the government ever, ever followed these steps. They have indicated on multiple occasions that they simply do not intend to ever comply with these standing orders. Labor refuse to follow them, and that is consistent with their repeatedly demonstrated desperation to avoid transparency and oversight. It begs the question: what are they trying to hide? What are they so afraid of people knowing? In New South Wales, governments abide by their rules and the sky does not fall in. Governments do not collapse. The Parliament does not descend into chaos, at least not any more chaos than is usual for a place like this. It is an affront to transparency, it is an affront to the Parliament and it is an affront to the Victorian public. Integrity experts have repeatedly raised concerns about the Victorian government’s failure to comply with a simple but important integrity measure. They have actually suggested a range of significant actions that this Parliament should be taking, many of which are far more consequential than taking up a tiny portion of government business time for a debate.

I think what has been put before us is a very modest and reasonable motion. The consequences for the government are for not complying with the request. They have requested moving the time of the debate. I will note the debate is a consequence of not complying with the order. The fact that they want to move the time suggests that they do not intend to comply with this motion, but we will give them the opportunity.

David Davis interjected.

Sarah MANSFIELD: Yes, we will give them the benefit of the doubt. We never know. They might take this as an opportunity to change their tune.

David Davis: Change the habits of a lifetime.

Sarah MANSFIELD: We will see. I look forward to that. We are giving the government every opportunity to do the right thing, to comply with the standing orders. We have done it before. We are giving them further opportunities. They cannot turn around and say this Parliament was unreasonable. But should the government continue to flout the standing orders, I do think it is completely reasonable for this Parliament to consider what further actions we should be taking. As we have said, this is about transparency. It is about integrity, and it is incredibly important that this Parliament can do its work on behalf of the Victorian public without information being kept from us. This government needs to be held to account, and it is in the government’s own interest for that to occur. These sorts of things, hiding information and avoiding scrutiny, always have a way of coming back to bite governments, so I would really encourage them to take this opportunity. You have got a month with no sitting weeks. You have got plenty of time to comply with the standing orders. It is very, very simple. The Greens, as I said, will be supporting this motion as amended. I commend the motion to the house.

Jacinta ERMACORA (Western Victoria) (15:02): This motion is really the next instalment in what we can only describe as the opposition’s crusade not just on the Commonwealth Games but on contesting the notion of executive privilege. Before I go on I do want to validate my colleague Mr Galea’s comments about the committee as a whole. I have enjoyed the process, actually, being on the committee. Also I have enjoyed Mr Limbrick’s chairing of the committee. It has been very organised and efficient and very fair as well, which I have really valued. I have also enjoyed meeting and listening to a very wide range of people and entities during the select committee process – the people that have appeared before us. I also want to thank at this point too the secretariat, because being fairly new on these sorts of committees I noticed that part of the service that they provide is a kind of methodological rigour. They provide the structure and the framework around the work that we do, which gives balance and accountability to the work of the committee, as well as the secretariat support.

Just to finish my introductory remarks, I have enjoyed listening to the ministers, the departmental heads, the sports industry experts, the sports administrators, the Commonwealth Games staff, the events experts and lots of local sporting representatives across the state. It has been really terrific. There has been an incredible diversity of views expressed on all of the key issues that the committee has been investigating. It has been, in a sense, one of my first committees, and I have enjoyed observing how they go about the process.

The most telling statement for me is the Auditor-General’s report into the Commonwealth Games, and that confirmed that $6 billion is too much for a 12-day sporting event and the government’s decision to not proceed was the right one. The only sensible and responsible action to take was to not go ahead with those games given the circumstances, and the decision was particularly sensible and responsible for regional Victoria. I do struggle with this particular request around executive privilege. When those opposite were in government, there was a very strange story as well. In fact those opposite look quite disingenuous in bringing before us this motion when we reflect on their record in a similar situation.

This motion seeks to set up a further debate for 50 minutes on a government business day – I acknowledge there is an amendment, and I will get to that in a minute – with the purpose of disrupting the government and distracting this chamber from getting on with the business that Victorians expect us to do, and that is to debate and scrutinise legislation. That is what my constituents expect. What they do not expect is to have this Parliament sidetracked from getting on with the vital work of the chamber just to satisfy the opposition’s ongoing obsession on this matter. That is what the Victorian community care about – delivering real and tangible infrastructure that supports and builds up our state. I note that there is an amendment. There seems to be an outbreak of unanimity in relation to this amendment, because it seems to be the same amendment across the chamber no matter where you look, and that I think is a very good thing. The amendment will minimise the impact on a government business day to a certain extent, which is a positive thing, and I appreciate that.

Just to go on with, say, the Baillieu–Napthine governments, the previous time those opposite were in government only six documents motions were passed. When the government provided information, there was none at all for about 50 per cent of them and only partial information for the rest. In terms of health performance data, the coalition denied Labor leave to debate a bill that would require the quarterly release of hospital, paramedic and firefighter performance data. David Davis was the health minister at the time, and at one point the health performance data was held back for 18 months. It is pretty hypocritical to be lectured in this place by Mr Davis on documents motions. It really is an abysmal record. I appreciate those opposite might have forgotten their record when last in government, seeing as it was so long ago.

It is disappointing to see this kind of obsession and time wasting being the focus of the opposition. I understand that you all have a lot on your plate. I understand there are a lot of legal issues flying amongst you at the moment, and I understand that that will be taking up a lot of your focus and energy.

Joe McCracken: They are preparing witness statements.

Jacinta ERMACORA: Exactly. But it really truly would be better for democracy if there was a greater focus on what your constituents need rather than looking inward and playing out a big time-wasting and expensive internal conflict in a public court system.

Before I finish up, I really want to return to that notion of what was sensible and responsible at the time. As I said, the Auditor-General’s report confirmed that $6 billion was too much to spend on a 12-day sporting event and that the government’s decision to not proceed was the right one. I really do think that is worth reiterating. Instead of playing games – pardon the pun – we are getting on with delivering a $2 billion package as an alternative to the games, which goes straight into regional Victoria, not just those five hubs that were originally going to receive funding support. They are guaranteed. This $2 billion will be spread across the entirety of the state, so it really does enhance the benefits to regional Victoria, particularly outer regional Victoria, which of course is one of this government’s strength areas. The Big Housing Build, for instance, has $1.25 billion to develop social and affordable housing in rural and regional Victoria. This is one of the real benefits of the $2 billion fund. The commitment includes 500 new affordable dwellings in regional Victoria.

We have committed $1.1 billion through the Big Housing Build to regional Victoria to date, which is creating 10,000 jobs across regional Victoria. The Koroit worker housing initiative undertaken by the Moyne shire, as I have mentioned in previous speeches, is a great example. In the Koroit caravan park, workers can be housed that have got employment in the Moyne shire area. Previously there was evidence that people were not taking up jobs, because they could not get accommodation in those communities. I congratulate the Moyne shire for their initiative in this space and notice that there are a number of other local councils who are now looking at doing a similar initiative.

Just before I finish up, I would like to mention the high-level investments that are happening in regional Victoria, because I think the Allan Labor government has a lot to be proud of – $38 million for an extension of the Regional Events Fund, $62 million for the Regional Tourism Investment Fund and $21.8 million for the Visit Victoria boost promotion. I will leave it at that point. Twenty-nine recipients recently shared in $8 million through the Enabling Tourism Fund. I think that the $2 billion fund is being spread much more evenly throughout regional Victoria as a result.

Joe McCRACKEN (Western Victoria) (15:12): When the Victorian community found out about the cancellation of the Commonwealth Games, there was broad shock across Victoria. Small businesses, tourist operators, athletes, sporting clubs and local governments, all of whom we have had as witnesses to the inquiry, revealed how they were only informed via either the media or a cursory text message or phone call a couple of minutes before the announcement. It was incredibly poor form. Naturally, like many in the community, they were seeking answers, which is why this Parliament acted to establish an inquiry into the cancellation of the Commonwealth Games. So far we have discovered that almost $600 million has been wasted to not host the Commonwealth Games in 2026. Far be it from the views of previous speakers, that is not a good outcome.

We have seen a business case that barely deserves the name, due to severe restrictions placed on it, and a lack of oversight and due diligence in many key decisions that have ultimately resulted in disappointed Victorians, frustrated businesses and the world laughing at Victoria. Even now Glasgow must be thanking the Victorian taxpayer for funding their games, which is in effect short-changing the taxpayers of Victoria. Thank you to those opposite for letting that happen.

But the quest for information continues, and it has been routinely frustrated along the way. Seemingly simple information is often taken on notice and executive privilege has been claimed on a multitude of documents on a multitude of occasions in an exercise which I think is designed to ensure that the government is protected, shielding decision-makers from scrutiny and accountability. The Premier, who was the minister responsible at the time for Commonwealth Games delivery, has refused to appear before the select committee. There is no doubt that she has many questions to answer, but again she has refused to acknowledge the role that she played in this sorry saga. Likewise, the former Premier Mr Andrews has refused to appear before the inquiry along with a string of former government ministers that are no longer in Parliament.

This motion seeks one thing: information. It seeks documents that the government has failed to provide even despite the fact that this chamber has agreed that that should occur. The government has seemingly disregarded the standing orders of this chamber in order to avoid scrutiny and accountability. So much for integrity in this government. If this is any action to judge the government by, you would have to conclude that integrity is virtually non-existent. We need to remember that we are representatives of people, real people, people that have been significantly and negatively impacted by the cancellation of the Commonwealth Games. Constituents of mine, indeed those in Ballarat and surrounds, were given a set of commitments and promises prior to the 2022 state election. Those promises were reneged on – they were cancelled – and they deserve to know why. These people deserve honest answers, straightforward answers and just some common decency.

I commend this motion to the house, and it is my hope that this process is not continually frustrated and stalled by those opposite just to protect their own interests. The people of Victoria are who their real interest should be, but it is clear that that is not the case

Gaelle BROAD (Northern Victoria) (15:17): The cancellation of the Commonwealth Games over 12 months ago was a significant blow to Bendigo and regional Victoria. 10,500 tourists a day were expected, which would have given the region a significant economic boost. Right from the start the Premier, who was the Minister for Commonwealth Games Delivery at the time, has not been transparent with the public. In April 2023 – this was prior to the state budget – Nationals Senator Bridget McKenzie and I were in Bendigo and raised concerns about the Commonwealth Games budget and how projects were being funded. To quote the Bendigo Times on 28 April 2023, and the title of the article is ‘Nats claim issue with Comms Games planning’:

Deputy Premier and Minister for Commonwealth Games Delivery, Jacinta Allan, said there was no truth of budget concerns or timeframe issues.

“We are making great progress with regional communities on the delivery of the 2026 Commonwealth Games,” she said.

“The Andrews Labor Government has grabbed with both hands the opportunity to have regional Victoria be the home of the Games, unlike the Liberal and Nationals.

…

Ms Allan said the Government is working with communities to produce a Commonwealth Games legacy that will last.

…

“This will leave a lasting legacy with $3 billion of ongoing investment into the regional communities to go along with the job opportunities and the chance to showcase regional Vic on the international stage.”

These words were said by the Premier just weeks before cancelling the Commonwealth Games – not just reducing the budget allocated to the games but actually cancelling the whole event. This was a major decision and another example of how Labor cannot manage money and certainly cannot manage projects.

This motion highlights the government’s failure to produce the documents requested by the parliamentary committee. Requesting documents to provide further background about the cancellation of the Commonwealth Games Labor called a ‘witch-hunt’. Today it has been called a crusade. It has been called an obsession. Well, that is what I call transparency in government. They claim executive privilege with these documents, but what privilege? The government are put in office by the Victorian public; that is the privilege they seem to forget. The state government do not make money; they take money from people through fees and taxes and choose how to spend it. In doing so they should be answerable to the Victorian public. The privilege of holding office is to be transparent about how taxpayer funds are being spent.

It is a repeating pattern by this government to avoid scrutiny, to avoid accountability, to evade parliamentary process, to withhold information and to practice the art of distraction, hoping people will forget and move on. Glasgow will run the games at a fraction of the cost when compared to Victoria’s $7 billion, they claim. Yet now we are going to have Victorian taxpayers helping to pay for those games. This government has spent $600 million on nothing – just cancelling the Commonwealth Games. The legacy projects that were meant to be finished by 2026 in time for the games have not even started. If the cost was too high, why would the state government not have looked at other options? No, they simply cancelled the whole event – an event they promoted for months in the lead-up to the 2022 state election.

I do appreciate the work of the parliamentary committee who are looking into the cancellation of the Commonwealth Games. My colleagues Melina Bath, Joe McCracken and others have been across the state holding public hearings, including in Bendigo, and we know that the cancellation of the Commonwealth Games has been very damaging to Victoria’s international reputation. The Paris Olympics reminded us of the value of sport and the lift it can give us all. Australia had our most successful games ever, and how unfortunate it is that we will not be able to back that up with the Commonwealth Games in Victoria in 2026.

Ms Ermacora mentioned that the government is not trying to play games. Well, I would suggest that they do stop playing games and provide these documents, in line with the standing orders.

Rikkie-Lee TYRRELL (Northern Victoria) (15:21): I am rising to speak to motion 585. As a member of the select committee responsible for this report, I have found the process to be incredibly frustrating. The committee has been stonewalled left, right and centre when seeking information and evidence from our Victorian state government. As elected representatives of our constituents it is our responsibility to provide transparency and accountability. These responsibilities also apply to members on the select committee. Unfortunately, the government are failing to enable a fair and just process to investigate and deliver the required information in order to justify the cancellation of the 2026 Commonwealth Games. The government is required to adhere to the standing orders.

This Commonwealth Games bid has cost our Victorian taxpayers $589 million – that is a $90 bill for every living Victorian, because of the government’s failed election promise. The people I represent deserve far better than this. They deserve the transparency and accountability our government claims to provide but has not delivered.

Ryan BATCHELOR (Southern Metropolitan) (15:23): I am pleased to rise to speak on motion 585 moved by Mr Davis, which is a rather extensive motion where volume is probably substituting a little bit for substance, but it is important nonetheless. It obviously seeks to obtain a range of documents that were sought in the interim report of the Select Committee on the 2026 Commonwealth Games Bid, reflects on the government’s response and the claim of executive privilege that has been made over 350 documents that were sought by that process and seeks to utilise the provisions of the standing orders to require that certain actions take place. In doing so it provides, I think we should say, that there be a further debate, and the timing of that further debate is the subject of Ms Bath’s amendment to have that debate at the start of government business on Wednesday 16 October.

David Davis: We hope not. We hope the documents are provided.

Ryan BATCHELOR: I am saying it provides for; it does not require it. I think if we were listening, we would understand what was being said.

The motion that Mr Davis is moving is an attempt to get hands on documents that the government, in responding to a legitimate request that has been made by the Parliament, has responded to in a legitimate way, which is to say that these documents have a claim of executive privilege that covers them. Therefore they are consistent with the rules and practices of this chamber and the chambers of the UK House of Commons, from which they were inherited many eons ago. When we inherited these powers to request and compel the production of documents, a rider came attached with respect to assertions of Crown privilege. Obviously in today’s parlance that is a kind of executive privilege. It is important that we understand what that entails, because it is not just matters that pertain to executive privilege as it is understood. I know that others in the debate did not want to go through and read the list of what these factors were, because they for some reason felt like it was not important for the chamber to hear them, but I think it is, because when you hear the term ‘executive privilege’ you may think that it only relates to certain types of documents – perhaps that this potentially would be in the context of just dealing with the deliberative processes of cabinet. But the claims of executive privilege, because they have a broader scope than would exist for example under freedom-of-information legislation, where different types of exemptions that can be legitimately claimed from that –

David Davis interjected.

Ryan BATCHELOR: I know it is not a freedom-of-information request. Mr Davis, if you actually listened to my contribution, then you might learn something. What I am saying is that the title of executive privilege and the concepts of executive privilege that are used in this context are broader than the way that cabinet documents exemptions would exist under the Freedom of Information Act 1982, because under that act – as I am sure some who are familiar with it do understand – there are other categories of exemptions that do apply beyond the cabinet exemption, which in this context are captured in the broader term of executive privilege. They are not only that it would reveal, directly or indirectly, the deliberative processes of the cabinet but also that it would reveal high-level confidential deliberative processes of executive government or otherwise genuinely jeopardise the necessary relationship of trust and confidence between the minister and public officials. Privilege may be claimed when it may reveal information obtained by the executive government on the basis that it would be kept confidential, because documents are subject to other statutory confidentiality provisions that apply to the Parliament. It may be that these documents could reveal confidential legal advice to executive government. It may well be that the documents could otherwise jeopardise the public interest on an established basis, in particular where disclosure would prejudice national security or public safety; prejudice law enforcement investigations; materially damage the state’s financial or commercial interests, such as an ongoing tender process or changes in taxation policy; prejudice intergovernmental or diplomatic relations; or prejudice legal proceedings.

Obviously my comments here do not assert any relationship between any of these factors and the documents in question. Rather they are an attempt to explain that the concept of executive privilege that applies in this context encompasses these matters, not simply as it would if we were to take an analogous provision in the Freedom of Information Act where a document was refused release because it would reveal the deliberative processes of the cabinet. That is but one of the many other elements of the Freedom of Information Act that would apply. You cannot just draw one simple analogy to the other without looking at the wide range of factors that could be taken into account. I think anyone who is considering whether executive privilege should exist over certain documents – I have missed a little bit of the debate, but I have not heard anyone in the debate so far assert that we should not have this concept in the consideration of this chamber’s powers to require the production of documents. No-one has got up here and said they do not believe in executive privilege and they do not think it is a concept that should apply in this debate. No-one has said that, as best I can tell. It is incumbent upon us, when we have that discussion, to actually have a fulsome understanding and airing of exactly what the breadth of that term and that claim mean in this context. Otherwise people might – I will not say ‘be misled’ – misunderstand the claims that are being made, and of course we would not want that to happen.

What we are seeing today is I think a very simple proposition that is being put on behalf of the government that this Council, through the chamber or through its committees, has sought to exercise its powers, its right, to request the production of documents. The government has responded using the mechanisms that are in place and has asserted a claim of executive privilege, which on any reading of the powers of this chamber, as they were passed to it on separation from the mothership, contain this concept of executive privilege at their heart. That concept of executive privilege, as I have enunciated in the context of this contribution, encompasses a range of matters. That hopefully is my attempt to clarify some matters in the debate.

David DAVIS (Southern Metropolitan) (15:31): I am pleased to sum up in this debate and I thank all members for their contribution. I think there are a few key points to clear up. First of all, picking up Mr Batchelor’s point here, we all agree that there is a legitimate case of executive privilege, but what he did not say is that the chamber through its standing orders, in common with New South Wales, has a standing order that enables that to be tested independently. But he did not actually say why the government has decided to thumb its nose at that basic principle that is in the standing orders. That is the key point.

In response to other points that were made, the coalition’s record on this is very good. Some tried to say earlier that we had not responded to the standing order. Well, the standing order was not there when we were in government. It actually was not there. You cannot respond to a standing order that is not there. Indeed overwhelmingly we responded positively to requests for documents. Where we believed there was a legitimate case of executive privilege, we asked the house not to insist, and it never insisted. I am just telling you that. I wrote some of the documents that went through. So I will just be quite clear.

Then we get to the substance of the motion here, which is about a huge waste of government money, and the inquiry, led ably by Mr Limbrick, is seeking to get to the bottom of a number of these points. It has been asked to do so by the house, and we have actually got active obstruction by the government, by the ministers. They refuse to submit the documents for arbitration or examination as understood, promulgated and laid out in detail by the standing orders. This makes it clear: please deliver the documents as per the standing orders and allow the process to operate. If you have got legitimate executive privilege claims – I agree with Mr Batchelor that there are legitimate claims for executive privilege; nobody has disputed that – submit them and get them tested. If need be, an arbiter would be appointed – a respected person, a respected jurist – and they can then give an independent assessment. It works in New South Wales; why shouldn’t it work here? The only reason is that the government is defiant and does not want to use the standing order. They want to block the use of the standing order, although they are bound by it. This makes that clear.

I accept and I think the house accepts in general the amendment by Ms Bath, which will see, if they do not deliver the documents, a debate on the next sitting Wednesday in government business. But the preferable thing is that the government does deliver the documents, and the documents can then be examined under the Clerk’s guidance with Mr Limbrick and then, if there is a dispute, a process of independent arbitration. What could be fairer?

Amendment agreed to.

Council divided on amended motion:

Ayes (24): Melina Bath, Jeff Bourman, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, Moira Deeming, David Ettershank, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Rikkie-Lee Tyrrell, Richard Welch

Noes (15): Ryan Batchelor, John Berger, Lizzie Blandthorn, Enver Erdogan, Jacinta Ermacora, Michael Galea, Shaun Leane, Tom McIntosh, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Amended motion agreed to.

The ACTING PRESIDENT (Bev McArthur): Before I call Ms Payne with her Legal and Social Issues Committee motion, I acknowledge Ms Patten in the gallery. It is wonderful to have you with us, Ms Patten.