Victorians deserve to know how their $26b is spent. Thousands of NDAs suggest the government disagrees

There is something rotten in the state of road building when the authority building the road has entered into more than 7000 non-disclosure agreements. The road is the North East Link. The sheer number of non-disclosure agreements elevates this from being a normal part of doing business to a perception that the use of them is a concerted effort to raise a shield to the public over what is transpiring in the construction of the road.

This is secrecy with a hint of blackmail. How could it not be seen thus if a home owner, for instance, or the driver of a vehicle damaged by a pothole, will only receive compensation from North East Link if they remain silent?

North East Link works last year.Credit: Joe Armao

It is too glib to say that non-disclosure agreements are just a part of business, as Transport Infrastructure Minister Gabrielle Williams did on Tuesday. They allowed the government to protect the privacy of the individual who entered into them, Williams said. She didn’t agree that the secrecy protected the government from scrutiny. The effect though, Minister, is that it does. It’s true that in some areas the agreements are just part of business, but they should not be a cloak over information that the public has a right to know.

The North East Link is not just the tarring of a side road. It is the biggest road construction project in Victoria’s history. At 26 kilometres, it will connect the M80 in Greensborough to the Eastern Freeway in Bulleen. More than 130,000 vehicles are projected to use it every day. When it was proposed almost a decade ago, its cost was estimated at $10 billion. The figure has now exploded to $26 billion.

Six years ago, The Age wrote in an editorial of its support for the project. It cautioned, however, that the change that needed to be wrought for it to be constructed had to be handled carefully, and community concerns listened to. Given that this is taxpayer money, any argument supporting the extraordinary use of non-disclosure agreements simply does not carry weight. This is a public work. The public must know what is going on with its money.

The government needs to remember to whom it is accountable. It is the public, and the spending of public money needs to be able to be examined. NDAs make this impossible. They are a legal contract between parties, in effect, tying both to secrecy.

The Age this week reported on its freedom-of-information request of last year seeking the number of NDAs made for the project. There were “well in excess of 7000 records”. And that was for North East Link sufficient information to give. NDAs were the norm in major projects and it would be unreasonable to do any more searching.

We reported that even people whose cars had been damaged by potholes or poor surfaces during the road’s construction had been forced to sign non-disclosure agreements for repairs. Again, why? This is the behaviour of a bully who knows the power lies with them. If this were not so serious, it would be high farce.

The primary reason for the existence of non-disclosure agreements is commercial sensitivity. Private companies can quite rightly justify their use by arguing that they act as a protection of the inner workings of a company from competitors. This does not apply on government projects. Withholding, indeed, silencing information, is as infrastructure lawyer Owen Hayford, said in our report, an attempt at controlling the narrative.

“The fact that there’s more than 7000 [NDAs] begs the question as to are they protecting truly confidential information or are they pulling a veil of secrecy over every bit of information, including information in which the public has a legitimate interest,” he said.

A $26 billion government project should be the epitome of transparency. The issuing of 7000 non-disclosure agreements is the epitome of opacity. Democracy demands the former.

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