It’s been found that no claims of privilege can be applied to light rail business cases. Photo: Michelle Kroll.
An independent legal arbiter ordered the release of several ACT Government documents relating to health expenditure and light rail costs after ruling that “claims of privilege” were not valid.
The Legislative Assembly asked the government on 4 March 2025 to produce papers dated 1 July to 6 November 2024, provided to the Chief Minister and others regarding health demand or expenditure.
These included any records of advice, decisions, options or consideration of providing information to the Opposition, crossbenchers or the public during the caretaker period.
While several documents were produced for a select committee investigating the operation of caretaker conventions in the Territory, some have been claimed to be privileged. The privilege status of three of these was disputed.
One is the 577-page incoming government briefing for the Chief Minister.
Independent legal arbiter Ken Mason AC KC found that there was a “wealth of information” contained in these documents which would not only be of use to an incoming government but “of great assistance to the Parliament as well”.
“In the Index [of this document], privilege is claimed on the basis that the document ‘contains material that would prejudice a deliberative process of government and disclose the deliberations of Cabinet, and unreasonably prejudice intergovernmental relations’,” Mr Mason wrote.
“I have found it difficult to understand what is sought to be advanced by these assertions … As I read it, the documents simply provide a lot of very useful information which the incoming government is free to accept or disregard as it thinks fit.”
He found that this document was not privileged within the scope of the Assembly’s Standing Orders.
The second disputed document is four pages and relates to an update on public sector management standards. It was argued this contained material that was subject to “legal professional privilege”.
Mr Mason ruled it was not privileged either.
The third disputed document related to a short note which confirmed advice on caretaker conventions, with privilege asserted on the basis that it contained material that would disclose the deliberations of Cabinet and would prejudice the deliberative process of government.
Mr Mason said he saw “no harm” to the public interest if MLAs had access to the document and noted Cabinet decisions were “frequently announced or disclosed” and summaries of Cabinet decisions were posted online.
This document was ruled not to be privileged within the scope of the Standing Order.
Light rail business cases and post-implementation reviews – including indicative or draft business cases, economic appraisals or economic evaluations of Stage 2B – were called for by the Canberra Liberals on 19 March.
Three documents from this tranche of paperwork were also subject to disputed claims of privilege as they would “prejudice a deliberative process of government and disclose the deliberations of Cabinet in relation to future Budget decisions”.
These are, or formed part of, the Business Cases for Capital Metro Russell Extension (68 pages, created 2016), Light Rail Stage 2 (191 pages, created 2018), and City to Woden Light Rail (217 pages, created 2019).
Each had been labelled ‘Cabinet in Confidence’.
At the time, Canberra Liberals leader Leanne Castley said the 19 March motion was to access the business cases that had been prepared for each stage of light rail to secure some “concrete” numbers.
“The motion seeks the current estimate of the total capital costs and any economic appraisals or similar that have been prepared,” she said.
Mr Mason said each business case contained “fairly specific” recommendations, but he didn’t know if they had been taken up entirely, enacted in part or “ignored”.
“But this in itself discloses nothing about intra-Cabinet deliberations that would have been involved in responding to the business cases, by which I mean disclosure of information about the ‘actual deliberations of Cabinet’,” he said.
“Each business case contains detailed estimates of the financial, environmental, social aspects and risks of a major capital project anticipated to span several years. Very significant sums of money are involved … Nothing has been advanced to suggest any risk to still future tendering strategy.
“My attention has been directed to no portions of the documents that may be of particular sensitivity and no submissions have been presented to supplement the globally expressed claims of privilege.
“In my evaluation, these documents are not privileged within the scope of the Standing Order.”
The Canberra Liberals labelled Mr Mason’s decision a “win for greater government transparency”.
“For over 20 years, ACT Labor have ignored, declined, and generally dismissed demands for greater transparency over their decision making,” Ms Castley said.
“Now, with a minority government … the elected Legislative Assembly has the power to force the government to hand over important documents for public scrutiny.
“For example, for too long, Canberrans have had little or no detail about the costs and processes around the light rail construction costs. These documents [will] now shed a light on just how much it will cost ACT taxpayers.
“It’s also telling that the Chief Minister himself sought the claims of privilege over the documents and the decision by the Independent Legal Arbiter to allow the documents becoming public must be humiliating for him.
“Ultimately, the entire ACT community is the better for having greater transparency over the government.”
Region asked the Chief Minister’s office when and where the documents would be produced, but did not receive a response.
Chief Minister Andrew Barr said Legislative Assembly Standing order 213A required him to make claims of privilege on behalf of the government and the public service “to protect the deliberations of cabinet, to not disclose commercial in confidence information and other matters”.
“It is not open to anyone else to make a claim. Appropriately, I acted on considered advice from the public service in making the claims of privilege on a handful of the thousands of documents released,” he said.
