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Legislative Council- PROOF Page 1 Wednesday, 12 May 2021 Legislative Council- PROOF Page 1 LEGISLATIVE COUNCIL Wednesday, 12 May 2021 The PRESIDENT (The Hon. Matthew Ryan Mason-Cox) took the chair at 10:00. The PRESIDENT read the prayers and acknowledged the Gadigal clan of the Euro nation and its elders and thanked them for their custodianship of this land. Documents PARRAMATTA LIGHT RAIL PROJECT Noncompliance with Order for Papers The PRESIDENT: On Tuesday 11 May 2021 the House ordered that, should the Leader of the Government fail to produce the unredacted final business cases for the Parramatta Light Rail project stage one and stage two in compliance with the resolution of the House, the Leader of the Government is to attend in his place at the table at the conclusion of prayers on the day following the passing of the resolution to explain his reasons for continued noncompliance with the order. I call upon the Leader of the Government to explain his failure to comply with paragraph (7). Attendance of Leader of the Government in His Place The Hon. DON HARWIN (Special Minister of State, and Minister for the Public Service and Employee Relations, Aboriginal Affairs, and the Arts) (10:04): I refer to my statement in the House yesterday outlining my case against censure by the House. This Government, like successive governments before it, recognises and respects the importance of Cabinet confidentiality in the system of responsible government. The Premier's Memorandum 2006-08 Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions is significant as it gives guidance to agencies for protecting the confidentiality of Cabinet documents. The memorandum states: Cabinet is the central and highest decision-making institution in government. Its workings are governed by long established practice and convention. … a convention at the core of the Cabinet system of government is the collective responsibility of Ministers for government decisions. Ministers are collectively responsible for all Cabinet decisions and must publicly support them, even if they do not personally agree with them. The unauthorised and/or premature disclosure of Cabinet documents, including draft Cabinet documents (such as draft Cabinet minutes), undermines collective ministerial responsibility. It also undermines the convention of Cabinet confidentiality. It is accordingly essential that the confidentiality of Cabinet documents, including draft Cabinet documents, is maintained to enable full and frank discussions to be had prior to Cabinet making its decision. This memorandum was issued by the Carr Government in 2006 and its operation has been continued by this Government. All government agencies are required to comply with this memorandum as they have been since it was issued by the former Government in 2006. The memorandum attaches a paper on Cabinet conventions in New South Wales compiled by Anne Twomey and Roger Wilkins. The paper discusses the convention of Cabinet confidentiality and its application to the production of documents to Parliament in light of the decision of the Court of Appeal in Egan v Chadwick. The paper states: The power of the Houses of the Parliament to require the production of government documents is also derived from the principle of ministerial responsibility. While the courts have concluded that the Houses, in the exercise of their functions of legislation or the scrutiny of the executive, may require Ministers to produce government documents, this is subject to the requirements of cabinet confidentiality. The inherent powers of the Houses cannot be used to undermine the principle of collective ministerial responsibility by disclosing the deliberations of Ministers in Cabinet. This includes Cabinet documents which reveal the position that a Minister intended to put to the Cabinet. I note that an order was passed by the House on 1 December 2005 in relation to Cabinet information concerning grey nurse sharks. In the event that any document falling within the scope of the order was not produced as part of the return to order, on the grounds that it formed part of a Cabinet minute or was held for consideration as part of Cabinet deliberations, the resolution required that: A return be prepared showing the date of creation of the document, a description of the document, the author of the document and the reasons why the production of the document would disclose the deliberations of Cabinet as discussed by the Court of Appeal in Egan v Chadwick. Wednesday, 12 May 2021 Legislative Council- PROOF Page 2 The response provided by the then director of the Premier's Department to that resolution is available on the Parliament's website. It states: An index of documents not produced because of the Cabinet exemption has not been provided. After considering advice from the Crown Solicitor, the Government does not concede that the Council has the power to impose such a requirement. This Government, like successive governments before it, recognises and respects the importance of Cabinet confidentiality to the system of responsible government. Although production of the business cases cannot be compelled, the Government reserves its right and may take the view that it may become appropriate for it to release further financial information about this particular project in the future. In doing so, the Government must take into account the sensitivity of information contained within the business cases, noting that the premature release of such information has the potential to undermine effective procurement processes. This could greatly compromise the State's objective of achieving value for money for the people of New South Wales, as well as the delivery of a light rail system connecting western Sydney. The Cabinet is yet to consider the Parramatta Light Rail stage two final business case. However, in the interest of transparency, the Government voluntarily provided redacted copies of the main bodies of the final business cases to the House. That summarises the position of the Government and that is the statement I make today. Bills PAYROLL TAX AMENDMENT (JOBS PLUS) BILL 2021 STATUTE LAW (MISCELLANEOUS PROVISIONS) BILL 2021 First Reading Bills received from the Legislative Assembly. Leave granted for procedural matters to be dealt with on one motion without formality. The Hon. DAMIEN TUDEHOPE: I move: That the bills be read a first time and printed, standing orders be suspended on according to sessional order for remaining stages and the second readings of the bills be set down as orders of the day for a future day. Motion agreed to. Motions DEATH OF BABY Z The Hon. PENNY SHARPE (10:11): I move: (1) That this House notes that on 10 March 2021 the New South Wales Coroner delivered its report from the inquest into the shocking and tragic death of Baby Z, conducted by Deputy State Coroner Magistrate Harriet Grahame. (2) That this House further notes that: (a) Baby Z was just two years, seven months and six days old when he died at Wollongong Hospital in August 2012 from a traumatic head injury; (b) the inquest into Baby Z's death attempted to understand the broader systemic failures that contributed to his death; (c) Magistrate Grahame found that despite multiple reports that Baby Z was at risk of significant harm, he did not receive a face-to-face assessment by child protection caseworkers prior to his death; (d) Magistrate Grahame stated that it is "both shocking and completely unacceptable" that around 70 per cent of children who are the subject of a Risk of Significant Harm report do not attract a statutory response; and (e) Magistrate Grahame also stated that the responsibility for protecting children and young people "cannot be shifted by creating a culture where overworked or under-skilled staff can close reports, claiming a lack of resources or competing priorities". (3) That this House expresses its alarm regarding the tragic death of Baby Z and the Deputy State Coroner's findings regarding the New South Wales child protection system. Motion agreed to. Documents NORTH WILTON Production of Documents: Order The Hon. ADAM SEARLE (10:12): I seek leave to amend private members' business item No. 1111 outside the order of precedence for today of which I have given notice by as follows: (1) Omit paragraph (c) and insert istead: Wednesday, 12 May 2021 Legislative Council- PROOF Page 3 (c) all declarations of conflicts or perceived conflicts of interest, relating to or from Mr John Brogden, relating to North Wilton or Mr Peter Brennan, CEO of Bradcorp, created since 1 January 2015; (2) Omit paragraph (d) and insert instead: (d) all financial and valuation documents created since 1 January 2017 relating to the acquisition of North Wilton; Leave granted. The Hon. ADAM SEARLE: Accordingly, I move: That, under Standing Order 52, there be laid upon the table of the House within 21 days of the date of passing of this resolution the following documents in the possession, custody or control of the Minister for Planning and Public Spaces; Department of Planning, Industry and Environment; the Premier; Department of Premier and Cabinet; the Treasurer; Treasury; the Minister for Finance and Small Business; Department of Finance, Services and Innovation; UrbanGrowth NSW Development Corporation; Greater Sydney Commission; or Landcom relating to North Wilton: (a) all documents created since 1 January 2015 relating to the analysis and designation of Wilton as a Priority Growth Area, including any reference to North Wilton; (b) all UrbanGrowth or Landcom board papers created since 1 January 2015 relating to North Wilton; (c) all declarations of conflicts or perceived conflicts of interest, relating to or from Mr John Brogden, relating to North Wilton or Mr Peter Brennan, CEO of Bradcorp, created since 1 January 2015; (d) all financial and valuation documents created since 1 January 2017 relating to the acquisition of North Wilton; (e) all correspondence and communications, including to and from mobile phone devices using SMS or any messaging application since 1 July 2018 between the Mr John Brogden and Mr Peter Brennan; and (f) any legal or other advice regarding the scope or validity of this order of the House created as a result of this order of the House.
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