Govt plots High Court fight over transparency ruling
After a three-year battle, three judges have ruled certain documents from SA’s government executives can be made public. The government plans to fight the decision in the High Court.
The state government plans to appeal a Supreme Court decision to the country’s highest legal authority over public access to executive-level briefing documents, InDaily can reveal today.
Last week, Supreme Court judges Livesy, S Doyle and B Doyle ruled that briefing notes prepared for the SA Environment and Water Chief Executive in 2023 could be made public.
The Court of Appeal decision came about three years after self-proclaimed transparency warrior Rex Patrick requested the documents relating to “a likely failure” to meet supply targets in the Murray-Darling Basin Plan.
A state government spokesperson told InDaily today that it “acknowledges” the decision, but would appeal it in the country’s top court.
“This decision is a significant departure from previous authorities, and the State Government intends to seek leave to appeal the matter to the High Court,” the spokesperson said.
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“Given this, we are unable to provide further comment at this time.”
The case had already been seen by four judges over three years, after the state government denied access to the briefing notes, saying they were exempt from Freedom of Information rules, because it would “infringe the privilege of parliament” – which was protected under the 1688 Bill of Rights.
Parliamentary privilege is a type of legal immunity, most commonly understood as protecting what is said in parliament from any court proceedings. For example, it protects parliamentarians speaking negatively about a political opponent in the parliament without facing defamation risk.
“The government had been trying to use a 400-year-old law that was designed to open up debate to censor information from South Australians…the court has now put a stop to that,” Patrick told InDaily.
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Patrick’s pro-bono legal team, Chad Jacobi KC and Daniel Lorbeer, instructed by HWL Ebsworth Lawyers, argued that the Bill of Rights did not protect confidentiality.
Their argument said that disclosing the documents would not “impeach or question” the court, and like Hansard, which houses parliamentary transcripts, should be disclosed fully to the public.
“I originally took this on because I had knowledge as a former senator of how parliamentary privilege worked, and it didn’t stack up, and that’s exactly what the South Australian Court of Appeal has found,” Patrick said.
The government’s move to appeal came seven days after the judgment was handed down by the Supreme Court judges, which Patrick said was “a very short time period to determine to file”.
“The Court’s decision has clearly exposed a raw transparency nerve that they want to put a patch back over,” he said.
He also noted that federal government executives’ briefing notes that come up in Senate Estimates can be made publicly available to Australians, and journalists often request them under Freedom of Information laws.
“It is, unfortunately, across the states they’ve taken a different view,” he said.
“No one had ever tested this at a judicial level before.”
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