Production of documents

Production of documents

06 September 2018

Mr Pesutto— (Hawthorn) (10:28:13) — I am reminded today of what the English language’s greatest exponent, Shakespeare, meant when he talked about ‘the insolence of office’ because we have a government that does not feel restrained by any of the conventions, any of the rules, any of the principles or standards that ought to govern governments which are privileged to serve the people of this state. In the course of events that have led now to a series of victims who are going to suffer because of the government’s rank political expediency, there is a pathway littered with breaches of convention, standards and principles.

Let us start with constitutional convention — constitutional convention that has served governments of all political persuasions for decades, if not centuries. What did this government do? It trashed them. In one rank political exercise, it overturned and threw aside centuries of convention. The Secretary of Department of Premier and Cabinet (DPC) pushed back when he was told to release documents in breach of convention, bearing in mind that constitutional convention has long provided that where a government or somebody wants to retrieve documents belonging to a former government, the consent of the leader of the party of that former government is consulted so they can consent to or deny access to those documents. All parties have benefited from that convention as a sign of respect for the confidentiality that is necessary to protect the deliberations of government.

But this government: no, it trashed them. Chris Eccles, who is the secretary of DPC and who is not the chief culprit here but who I am disappointed in, should have stood up to defend that convention. He had previously told the opposition that he requested the Premier issue a direction, as I am advised, and that direction came from the Premier, exercising his powers as an employer. So there we have the head of the public service, who is the custodian, under the cabinet handbook and practices, of the previous government’s documents — in fact the previous documents of all former governments — saying that because he is in effect, and to use his parlance, ‘the employee of the Premier’ — he will do whatever the Premier tells him to do. What that tells you is that this motion was always just theatre. The Premier, as the so-called ’employer’, was always capable of issuing a direction to get him to do whatever the Premier wanted him to do for whatever rank political purposes the Premier had in mind.

It is a shame that that convention has been trashed but it did not stop there. In the course of events that have led us to today’s tragedy for those who are the victims of this privacy breach, the Premier trashed legal professional privilege and he did it sadly with the cooperation and capitulation of the Victorian government solicitor, who ought to have done better to protect the privilege that attaches to so many of the documents that have been released. Legal professional privilege is a legitimate ground that parties can assert when it is in their interest to do so, but this government rode roughshod over it and told the Victorian government solicitor, on the same basis that they told Mr Eccles as chief of the Department of Premier and Cabinet, ‘Don’t worry about that. Release all the documents’. So Ms Baragwanath, the Victorian government solicitor, like Mr Eccles, simply handed over the documents.

She did not tell the Leader of the Opposition or anybody else who might be affected by the inappropriate release of these documents. She just handed them over in blatant breach of a long-standing principle that governments of all persuasions have long respected but which has now been thrown aside.

And of course on that pathway to today’s tragic events we have had breaches of privacy — blatant breaches of privacy. Imagine you are a parent and the details of your own daughter or son are released to the world at large. That is what has happened here. Those documents are still available to any member of the public who wants to assert a right of access to them. We will deal with that, but it is a sign of just how rank the political interests of this government have become, driving it away from classic standards that have served the test of time.

It does not just stop there. The pathway to today is also littered with what I have been advised are a potential contempt of court. In and amongst the documents that this government has recklessly tabled here are criminal prosecution files, Speaker, including advice from the Director of Public Prosecutions (DPP) on the merits and demerits of appealing against the sentence given to an individual who pleaded guilty to certain matters — I do not need to go into them.

Imagine your details, including assessments of your character and issues relating to whether you should face an appeal or not, were put out in the public realm, including medical material, potentially. We also know that information from the Victorian government solicitor in relation to those criminal matters is included in the documents. Again, this is an unacceptable and unforgivable breach, and we know the Director of Public Prosecutions’ own policy on confidentiality, paragraphs 14 to 16, talks about safeguarding advice from the DPP, so it is potentially a breach of DPP policy on these things as well.

This pathway has been littered with a series of breaches that could create terrible precedents for the future, and if this government is re-elected — and we will work as hard as we can against that — imagine what other damage they would wreak. It also goes to this, Speaker: you will recall the excuses from this government that they did not know that there was this material in there, that it has been inadvertently released. You will know, because the Attorney-General wrote to you. He wrote to you some months ago and he told you that the government was processing these documents. So how was it that this personal and private information was in there? You know, Speaker, that that cannot be believed or relied upon as an excuse. They just did not care. They did not bother. They just wanted to engage in a cheap political exercise, and its ramifications are far-reaching.

Let me turn to this, Speaker: not only should you not accept, if you can, what is proposed in this motion, but my view is that you cannot. I will tell you why. The obligation and responsibility for the assessment of whether a ground of privilege exists rests upon the custodian of the document. That is why it is incumbent on a secretary of a department, or a minister or any other administrative office head — any head of any agency — and their responsibility to make determinations after consulting with parties who might adversely be affected to make an assessment of whether a ground of privilege exists or whether a ground of immunity exists. You cannot do that. With no disrespect to you, sir, you cannot make that assessment, and it is not your job to make that assessment.

If you go through the 80 000 documents or thereabouts that are part of this dump — and I do not know how, if this motion gets through as it is proposed, you are going to deploy your staff to go through the 80 000 documents — who is going to make this assessment? You? With no disrespect, sir, are you going to make these assessments of whether immunity or privilege exists? You cannot do that.

That is why departments and agencies have in-house lawyers and external lawyers to help them make these assessments. Because if you get it wrong, somebody is going to suffer. So why should you take that responsibility? It is their mess. It was their game. It was their cheap political effort at scoring a few petty points. And let us remember why all of this happened — because of the red shirts. This was always only ever supposed to be a distraction from the red shirts, and look what it has turned into — a disaster. It is not bad enough that it has backfired, humiliatingly, on the government, but the Premier is not here. The Deputy Premier is not here. The Attorney-General is not here. Who do they send out? The Leader of the House, the Minister for Police and the Minister for Health to take credit for a disaster. Where are they? Where is their responsibility for all of this?

So, Speaker, do not, for your own sake, if I may say with no disrespect, do not support this motion, because you will be put in the sling. You should support the amendment, as I will, moved by the Leader of The Nationals that would take that responsibility away from you as proposed in this motion and put it right where it belongs: on the Premier, who is the author of this mess. And it is a mess, because just like the east–west link where the Premier broke a promise to Victorians and paid out $1.3 billion, and just like the red shirts where they engaged in the most unseemly and unbecoming effort to hide from Victorians the truth about the biggest wart in our state’s parliamentary history, here we go again. More compensation and more legal costs will be paid out. And bear in mind, there will be a class action in this matter.

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