Detainee documents: more on a possible Aussie precedent

From my colleague Neil Morrison, Network Current Affairs Producer for CBC Radio here in Ottawa:

In my previous post I told the story of how the legislative council of New South Wales took on a government that was reluctant to release documents. 

This Australian example is interesting to us, of course, because last Thursday, the House of Commons passed a motion compelling the government to release all documents relating to the detainee file.  And on Friday, two different ministers suggested that's unlikely to happen.

Now one big difference between this case in New South Wales and the current situation in our Parliament, is that here in Canada the government says section 38 of the Canada Evidence Act is tying their hands.

In the Aussie case, the government didn't claim there was any special privilege surrounding the documents which prevented them from being released. They just didn't want to release them.

Very different.

But two years later, there was another case that comes closer to what is taking place here.

In October 1998, the legislative council of New South Wales demanded documents about Sydney's contaminated water supply.  The government refused.  In fact, it was the same minister as in the case two years earlier - the Hon. Michael Egan was in the spotlight.

The government argued, amongst other things, that releasing the documents could harm the state. These documents included papers that could be used in civil actions against the state if their contents were known.

The legislative council didn't buy it.  They suggested a system for protecting sensitive information. But the government didn't budge.

Once again, the council found the minister in contempt of parliament.  Once again he was suspended.  And the Usher of the Black Rod was again called to remove Egan, but this time, the honorable member had already left.  Apparenly he knew the drill.

The issue wound up in the NSW Court of Appeals.  And even here, with the government arguing the welfare of the state was at issue, the court was unanimous in its ruling against the government.

The only solace for the government was a split decision on the degree to which actual cabinet deliberations enjoyed some immunity.  But I would think most governments would find it cold comfort to hear that cabinet deliberations were in any way up for grabs.

So there it is.  The plucky legislative council of New South Wales giving us all something to think about in the weeks ahead. 

A couple of interesting points about this council:

From a legal perspective, the council of New South Wales is considered one of the weakest in the country.  For example, its privileges have not been codified. In other words, written down in a book.  And its power to punish is very limited.

On the other hand, the Parliament of Canada is arguably the strongest in the country. Not only are its privileges written down in a fancy little book now known as "O'Brien and Bosc",  but according to the Supreme Court of Canada, they're actually part of our Constitution. 

Now what happens down under isn't binding on courts here.  But the Supreme Court of Canada has ruled on a couple of cases that would be. 

I'll get to those next.