The documents the NSW government doesn’t want you to see

Government briefing documents are being blocked from release in NSW and cloaked in secrecy for a decade on the basis they contain cabinet information while the same kinds of documents are released federally.

Former senator-turned-transparency advocate Rex Patrick and NSW independent MP Helen Dalton are locked in a fight with the Minns government over access to the documents, including a brief on child protection policy.

Documents released federally under freedom of information laws are being blocked from being released in NSW.Credit: Marija Ercegovac

Patrick applied this year under NSW’s freedom of information regime, the Government Information (Public Access) Act (GIPA), for budget estimates and question time briefing documents prepared by public servants to help government officials and MPs answer questions in parliament.

He was knocked back on two bases, including that the documents were “cabinet information”. Patrick, a former independent senator for South Australia, and Dalton, who represents the regional electorate of Murray in the NSW southwest, say this is wrong.

In his fight for access to the documents, which extends to the NSW Civil and Administrative Tribunal (NCAT), Patrick invoked a scene in ABC political comedy-drama The Hollowmen, “where an official was seen wheeling a trolley of documents through the cabinet room to enable the documents to be claimed to be cabinet documents and therefore protected from disclosure”.

The cabinet room trolley scene from Australian political comedy-drama The Hollowmen, referred to by former senator Rex Patrick.Credit: Working Dog

“It was a transparency ruse. It was based on the alleged practice in the Queensland cabinet in the 1980s and 1990s used to prevent the disclosure of embarrassing government documents to commissions of inquiry,” he said.

Both federal question time and Senate estimates briefs have been released under Commonwealth freedom of information laws.

Patrick said Senate estimates briefs “are extremely useful overviews of what is happening in a department, or an agency, or on a project, or in relation to an issue”.

Former independent senator Rex Patrick.Credit: Dominic Lorrimer

‘Not acceptable’: MP

In a letter to Premier Chris Minns, Dalton sought clarification about whether “all estimates and question time briefs are subject to a standing claim that they are cabinet documents”. If so, Dalton said it was “not acceptable”.

Regional NSW MP Helen Dalton.Credit: Flavio Brancaleone

Dalton told The Sydney Morning Herald: “These briefs can give us an insight into the apolitical advice departments give governments before the governments then start making political choices.

“By keeping this advice secret, governments make it harder for non-government members to do our jobs. They also rob voters of a proper understanding of the advice being given by departments.”

Child protection brief

Patrick applied in May for the brief given to a Department of Communities and Justice official to inform their answers to questions in budget estimates hearings in March.

He focused his request on the section of the brief on child protection matters. A damning report by the Audit Office of NSW in June found “the NSW child protection system is inefficient, ineffective, and unsustainable”.

NSW Premier Chris Minns.Credit: Kate Geraghty

In a letter in June, the department rejected the request on two bases: the disclosure would infringe parliamentary privilege, and the brief was “cabinet information”. Cabinet information is protected from disclosure for 10 years, although there is no guarantee it will be released after that time.

The brief was considered by cabinet’s strategy committee in February, the letter said.

Patrick also sought access to a question time brief, known in NSW as house folder notes, prepared for Attorney-General Michael Daley in June. He was advised by Daley’s department in August that the notes “were considered by cabinet”.

Under the GIPA regime, it is “conclusively presumed that there is an overriding public interest against disclosure” of “cabinet information”.

Attorney-General Michael Daley.Credit: James Alcock

The premier’s department responded in the same terms in August to a request for access to a question time brief prepared for Minns.

Legal fight

After his requests were denied, Patrick launched proceedings against the government in NCAT. The Information and Privacy Commission has intervened in the dispute to make submissions.

The tribunal will hear arguments in Sydney on September 23 about whether the budget estimates brief he sought is properly characterised as cabinet information.

If Patrick wins, the tribunal will later consider a separate argument about whether releasing the brief would infringe parliamentary privilege. The Federal Court has previously ruled parliamentary privilege protected house notes for a NSW minister from being disclosed in a court case.

The process of sending budget estimates and question time briefs to cabinet for approval may not be unique to the Minns government. “This is not a question about right or left, it’s a question about right or wrong,” Patrick said.

Government response

A spokesperson for the Premier’s Department said: “NSW government agencies make decisions on the release of government information in accordance with the Government Information (Public Access) Act.

“These decisions are reviewable by the NSW Information and Privacy Commission and [NCAT].

“The Department is aware of proceedings brought by Mr Patrick in NCAT. It is not appropriate to comment on the proceedings while they are on foot.”