Paul Fletcher cries cabinet confidentiality on car park rorts. But does that stack up?

Urban Infrastructure Minister Paul Fletcher says a Senate committee cannot obtain spreadsheets detailing the top 20 marginal seats — the basis for the government’s funnelling of commuter car park funds towards Liberal electorates — because they are confidential cabinet documents.

By raising a claim for public interest immunity, Fletcher has ensured the documents will not be publicly available until at least 2039. Releasing them would have a “chilling effect” on the ability for comprehensive and candid discussions between ministers to take place in cabinet, he said in his letter to the committee.

Fletcher’s claim is the latest attempt by the government to avoid scrutiny over its administration of the $660 million commuter car park fund, in which 87% of the funds go to Coalition-held or targeted seats. And it’s one crossbench senators and transparency experts say holds little water.

How cabinet confidentiality works

Cabinet documents are confidential in Australia because of a long-standing convention that pretty clearly includes things such as the agenda and minutes for cabinet meetings. But it’s the outer edges of what’s included — information that might have been provided to and for cabinet — that creates problems.

Confidentiality is exempt requests under freedom of information, and in situations like this allows ministers like Fletcher to make a public interest immunity claim to stop a Senate committee disclosing documents. Even then, the extent of the government’s power to block documents’ disclosure to Parliament or committees on public interest immunity grounds is unclear — although it’s accepted that such documents aren’t released to the Senate, the High Court hasn’t yet tested that.

Lawyer and FOI expert Peter Timmins says disputed claims such as this — where an immunity claim has been made in response to a parliamentary committee — are “a long and unresolved issue federally”.

He tells Crikey that although there’s frustration among many senators about the government’s refusal to release documents, the Senate hasn’t pushed hard enough to test the extent of its ability to compel their release.

“There’s been no appetite in the Senate to really raise the issue of what should be done to push this aspect of the process,” he said.

Minister’s claim contested

So does Fletcher’s claim that spreadsheets were confidential cabinet documents hold water?

A few issues complicate this. First, Infrastructure Department deputy secretary David Hallinan told the Senate committee some of the spreadsheets relating to their advice on program design and project identification were advice to cabinet and should be protected by public interest immunity. But he conceded the department hadn’t actually seen the top 20 marginal seats list.

Independent Senator Rex Patrick tells Crikey the test Fletcher must prove is that the dominant purpose of the documents was for cabinet and that they were released to cabinet.

“On the face of it, noting the nature of the document, I found it hard to believe the first test has been met,” he said.

But Morrison contradicted Fletcher’s claim that the documents were subject to cabinet confidentiality last week when he repeatedly said decisions were made by the minister responsible, Alan Tudge. That tension hasn’t been lost on crossbench senators.

“The prime minister has debunked the second test when he said these decisions have been made by ministers,” Patrick said.

Greens Senator Janet Rice said this was further evidence “the rorts are widespread and go right to the top”.

“Claiming cabinet in confidence completely trashes the Coalition’s argument that their rorting decisions were made by rogue individual ministers,” she said.

Finally, Fletcher’s claim that the key documents were prepared for cabinet seems inconsistent with what Tudge told reporters last week — before running down the corridor — when he said he’d never seen the list of top 20 marginals which the Australian National Audit Office said was created in his office.

Even if Fletcher’s claim doesn’t stand up, it’s part of the Morrison government’s standard approach to transparency — it’s repeatedly used public interest exemptions as a way to refuse releasing documents to committees, Patrick says.

“This is the most secretive government in living memory,” he said.

Rice, meanwhile, is hoping to get a Senate inquiry into the government’s administration of the entire urban congestion fund, which will be voted on this afternoon.