Legislative Council: Wednesday, November 27, 2024

Contents

Financial Sustainability Review Reports

Adjourned debate on motion of Hon. T.A. Franks:

That there be laid upon the table of this council, within 21 days of the passing of the resolution by the Leader of the Government, the two reports prepared by Mr Mark Priadko from 2011-12 titled 'Financial Sustainability Review Reports' in relation to the South Australian Museum and the Art Gallery of South Australia, respectively.

(Continued from 16 October 2024.)

The Hon. J.S. LEE (Deputy Leader of the Opposition) (20:55): I rise on behalf of the Liberal opposition to support the Hon. Tammy Franks' motion to express our disappointment and dismay that such a motion has to be brought to this council because of the inadequate response, lack of leadership and poor procedural process of the Department of the Premier and Cabinet.

As a member of the Statutory Authorities Review Committee, I strongly support this motion which calls on the Leader of the Government in this place to produce two financial sustainability review reports from 2011 and 2012 in relation to the South Australian Museum and the Art Gallery of South Australia. As the honourable member has outlined, the Statutory Authorities Review Committee wrote to the Chief Executive of the Department of the Premier and Cabinet in July 2024, requesting copies of these reports that are relevant to the committee's current inquiry into the SA Museum and the Art Gallery of SA.

The DPC stated that the documents would not be provided to the committee as they were subject to cabinet confidentiality. However, these documents are now more than 10 years old and should be made available to the committee under the DPC's own 10-year rule for cabinet documents. After some four months of back and forth with the department, which resulted in the DPC advising that the committee would need to lodge a freedom of information request in order to access the documents, I am astounded at the disingenuous and disrespectful approach the government has taken to this simple request by a parliamentary standing committee.

I note that it is only since the Hon. Tammy Franks moved this motion that the SARC received further correspondence from the DPC, advising that the department is considering release of the documents to the committee and that no formal FOI application would be required. However, DPC stated that it is working through the process of consulting with third parties, which is required before the relevant confidentiality can be regarded as being effectively waived, providing no timeframe for when this process might be completed.

However, finally and rather conveniently, the members of the Statutory Authorities Review Committee were notified at 11.40am today—

The Hon. T.A. Franks interjecting:

The Hon. J.S. LEE: Correct. The DPC have sent further correspondence, advising that two documents that have been—

The Hon. T.A. Franks interjecting:

The Hon. J.S. LEE: —requested will be released to us. How convenient that this determination has been made on the same day that this motion was set to be debated. It is almost as if the department is trying to avoid the embarrassment of being called out in this place for deliberately attempting to withhold information from a parliamentary committee. Let us remind the DPC that the Statutory Authorities Review Committee has a mandate from this chamber to inquire into the SA Museum and the Art Gallery of SA and these reports will inform our inquiry. I eagerly look forward to reading these reports.

While this motion should never have been required, I wish to thank the Hon. Tammy Franks for moving this motion and forcing the department's hand to act accordingly in the interests of accountability and transparency. I commend the motion.

The PRESIDENT: The Hon. Ms Lee, I am sure you were not talking about deliberations or correspondence that was received in a committee today, because that would be inappropriate.

The Hon. M. EL DANNAWI (20:59): I rise on behalf of the government to indicate we will not support the motion. I note that this morning the Department of the Premier and Cabinet provided two documents relating to the Art Gallery of South Australia.

The Hon. T.A. FRANKS: Point of order, Mr President.

The PRESIDENT: The Hon. Ms El Dannawi, sit down for a second.

The Hon. T.A. FRANKS: Point of order: I believe that more than one member has now discussed the deliberations of a committee that has not yet even deliberated and certainly not made public these things, so they are very much contrary to the standing orders.

The PRESIDENT: The Hon. Ms El Dannawi, be very careful about how you put the fact that a committee may have received some documentation.

The Hon. T.A. Franks interjecting:

The PRESIDENT: Okay. You really need to dance around this very carefully. I am sorry if I missed pulling up the Hon. Ms Lee—

The Hon. I.K. Hunter: Throw her out.

The PRESIDENT: No, I am not going to reward her. Members should be well aware that committee deliberations, correspondence received in committees before it has been received and published, should not be talked about in this chamber.

The Hon. T.A. Franks: And certainly not decisions that have not even happened yet.

The PRESIDENT: And certainly not decisions that have not happened yet.

The Hon. M. EL DANNAWI: I understand that this morning the Department of the Premier and Cabinet provided two documents relating to the Art Gallery of South Australia and the South Australian Museum, requested by the Statutory Authorities Review Committee, to the committee. These documents were subject to cabinet confidentiality and involved an administrative process for them to be released to the committee.

Premier and Cabinet Circular 31, Disclosure of Cabinet Documents 10 Years or Older, otherwise known as PC 31, sets out the government's policy in regard to the disclosure of certain cabinet documents under the Freedom of Information Act 1991 after 10 years. While PC 31 allows for the disclosure of cabinet documents older than 10 years, it does not automatically waive cabinet confidentiality for all such documents or provide for automatic disclosure to a parliamentary committee.

This policy allows DPC to release cabinet documents under the FOI Act after 10 years, rather than the 20 years currently provided for in the FOI Act. This is known as the 10-year rule. Most governments, based on the Westminster system, have a class exemption for cabinet documents in their freedom of information laws, supporting the rationale that information prepared for cabinet should be kept secret to generate full and frank discussion and decision-making. This ensures cabinet decisions are not undermined, and protects cabinet confidentiality and the collective responsibility of cabinet.

In 2009, cabinet decided it did not want to claim the cabinet exemption over certain types of cabinet documents that are between 10 to 20 years old. This 2009 cabinet decision was given effect through the issuing of PC 31. By introducing the 10-year rule policy, cabinet recognises that disclosing information through FOI supports a greater government commitment to improving transparency of government. The policy assigns DPC as the agency to deal with all FOI applications under the 10-year rule.

In deciding whether to disclose a cabinet document, PC 31 requires DPC to have regard to the FOI Act, including exemption clauses in schedule 1 of the FOI Act. In requesting that the Leader of Government Business in the Legislative Council on behalf of DPC simply hand the cabinet document over to the committee, the Hon. Ms Franks MLC is in fact requesting that the leader and department do something for which they do not have authority.

PC 31 makes very clear that DPC must consider release of the documents in accordance with the provisions of the FOI Act. I understand that DPC has advised the Statutory Authorities Review Committee in correspondence dated 21 November 2024 that, while it has waived the requirement for a formal FOI application, it was working through the determination process, undertaking to get back to the committee as soon as possible. A determination has now been made and the documents have been disclosed to the committee—provided. There is very good reason for the existence of such policy.

The Hon. T.A. Franks: Which committee?

The Hon. M. EL DANNAWI: The committee. The release of any documents, including cabinet documents, under the provisions of the FOI Act ensures—

The Hon. T.A. FRANKS: Point of order, Mr President: I believe that the member just misled the parliament. She just claimed that the documents had been provided to the SARC committee and received and that is simply not true—simply not true.

The Hon. I.K. Hunter interjecting:

The Hon. T.A. FRANKS: She did say that documents had been received.

Members interjecting:

The PRESIDENT: Order!

The Hon. I.K. Hunter: Listen properly.

The Hon. T.A. FRANKS: Govern properly. This is an order for the production of documents motion; it has nothing to do with FOIs.

The Hon. I.K. Hunter: That is simply outrageous. She did not utter those words.

The PRESIDENT: Order! Enough. It's late, tempers are frayed.

The Hon. I.K. Hunter interjecting:

The PRESIDENT: The Hon. Mr Hunter, I am on my feet. Nobody speaks when I am on my feet. We are going to move on. The Hon. Ms El Dannawi, if you mentioned 'received' you can withdraw that and then move on.

The Hon. M. EL DANNAWI: There is very good reason for the existence of such a policy. Release of any documents, including cabinet documents, under the provision of the FOI Act ensures that there are no unintended consequences associated with disclosure of matters such as law enforcement, public safety, trade secrets, personal information or legal professional privilege, putting either the state of South Australia or members of the public at risk, whether that be a legal risk, a safety risk or simply a breach of privacy. I conclude my remarks and confirm that we will not be supporting this motion.

The Hon. T.A. FRANKS (21:07): In concluding the debate, I thank those who have made a contribution: the Hon. Jing Lee and the Hon. Mira El Dannawi. I note that this is actually not a motion about freedom of information requests. This council is not making a freedom of information request, this council is asking for an order of production of documents, something that happens in the Westminster system across every other parliament in this country on a regular basis, but does not happen under the Malinauskas government and has not happened under previous Labor governments for some time.

This is an order for the production of documents motion of a parliament chamber and the freedom of information laws have nothing to do with that. The power of the parliament is supreme. I urge members to support this very simple request that in the next 21 days these documents, relevant to the inquiry of a current committee of this council, on the SA Museum and the Art Gallery of South Australia, from 2011 and 2012, with regard to Financial Sustainability Review Reports, be provided to this council. I commend the motion.

Motion carried.