“In a last-ditch attempt to ensure that the residents of Canberra be kept in the dark about the cost of light rail, Barr claimed executive privilege over the relevant documents.” JON STANHOPE & KHALID AHMED track the difficult politics of discovering the tram costs.

Finally, Canberrans have available to them some detail on the cost of a project that will burden them – and coming generations – with a mountain of debt.

In a March column we called on the Prime Minister Albanese and Chief Minister Barr to stop treating the Canberra community with contempt and release the light rail business case. 

Unsurprisingly, they ignored our plea. It took a Liberal Party motion in the Legislative Assembly, along with a review by an independent legal arbiter on the basis of the refusal to release the business case, that finally led to its publication.

Reading through the business case documents, we can understand the potential embarrassment and hence the secrecy by the Labor-Greens government. We will provide a detailed analysis and comments on the business case in the coming weeks.

The motion in the Legislative Assembly was moved by Opposition Leader Leanne Castley and supported by the crossbench and the Greens. The ALP, outnumbered on the floor, threw in the towel after refusing for years to release the business case, and supported the motion. 

It would have been nice to have been able to believe, as reflected in the mainstream media, that the members of the Legislative Assembly came together to agree on the release of the documents, with some technical matters relating to executive privilege and commercial confidentiality also being addressed.

Castley’s path was not all smooth

In reality, the path Castley was forced to tread to gain the support of the Legislative Assembly for her motion on the documents related to light rail was not at all smooth. 

In fact, in preceding debates her attempt to seek basic information on the business case for the project and related documents was vigorously resisted by the government with extraordinary and bizarre arguments. 

For example, Andrew Barr argued that the standing order under which Castley was seeking the documents was never intended for that purpose; that she was abusing the standing orders; and that other avenues such as Questions on Notice, questions during committee hearings and freedom of information (FOI) requests should firstly have been pursued.

We have sought information through FOI requests, and can attest to unexplained delays, obfuscation, claims of exemption under executive privilege or commercial confidentiality, large parts of relevant documents being blacked out, and being forced to go through appeal processes. However, surely Barr is not suggesting that members of the Legislative Assembly have to rely on executive processes to access basic information?

Highlighting the depth of the ALP resistance

On March 18 Castley was forced, in light of the continuing refusal of the ACT and federal governments to release basic information about the light rail project, to move the following motion that in its wording highlighted the depth of the resistance of the ALP to its release.

That this Assembly resolves that:

(1) orders for the production of documents are an inherent power of any Westminster Parliament, including the ACT Legislative Assembly, and an essential tool by which the legislature ensures the transparency and accountability of the executive;

(2) the ACT Legislative Assembly may order the executive to produce a document and, where a document does not exist, such an order compels the executive to create and produce a document containing the information sought by the order; and

(3) there is no obligation on members to first seek information through questions without notice, questions on notice, freedom of information, or other mechanisms before seeking an order in the Assembly.

In response, Barr observed that there had been more use of Standing Order 213A in the preceding four sittings than over the last 15 years, and while acknowledging that the opposition is entitled to it, complained about the change in approach.

He reiterated that the said standing order was not intended to be a substitute for FOI, and that “there is not an army of ACT public servants sitting by, doing nothing, ready to respond to 213A requests. This will, of course, divert resources away from other activities.”

Castley’s motion was eventually passed with amendments from the government, which among other things, provided “that under standing order 213A where a document or documents is considered by the chief minister to be privileged, a claim of privilege can be made”.

We acknowledge the Greens’ commitment, albeit new-found, to transparency and open government, for without it, the motion was doomed to fail.

Greens were party to key information

However, it begs the question, why over the three terms from 2012 to 2024 when they were in government and holding key ministries, the Greens were party to key information, such as the cost and benefits of light rail, being withheld from Canberrans?

For example, Canberrans remain unaware of why, in 2012, the Greens deemed a public private partnership (PPP) to be the most beneficial form of procurement and demanded its inclusion in the Parliamentary Agreement. 

However, there has been no disclosure of the interest costs on the borrowings for Stage 1 of the light rail project and whether they were less, or more, or the same as the rate at which the government with its AAA credit rating could have borrowed.

There has, so far as we are aware, been no post-implementation assessment of costs and benefits or the extent to which they have been incurred and realised, respectively.

In the debate, the Greens made a fair contribution to public confusion and the creation of red herrings.

They claimed, for example, that the light rail project had received more financial scrutiny than some road projects and repeated the government’s concocted concern about costs and the public service resources required to respond to the motion’s requirements.

In the end, their hand may have been forced, noting that they have claimed credit for the existence of the very standing order under which the opposition sought the documents, and as such, would presumably have found it difficult to deny a reasonable request for documents under that standing order.

Barr’s last-ditch attempt to hide the numbers

In a last-ditch attempt to ensure that the residents of Canberra be kept in the dark about the cost of light rail, Barr claimed executive privilege over the relevant documents, which necessitated the appointment of an independent legal arbiter, the Keith Mason AC KC, to evaluate the validity of the claims by the chief minister.

He concluded, unsurprisingly, that the documents are not privileged, and that: “Each business case contains detailed estimates of the financial, environmental and social aspects and risks of a major capital project anticipated to span several years. 

“Very significant sums of money are involved, placing the information at the heart of that which is of primary interest to a Legislature tasked with fiscal oversight and the appropriation of money. Nothing has been advanced to suggest any risk to the future tendering strategy.”

Interestingly, Barr had argued that FOI is a far more effective mechanism than the Assembly process adopted by the Liberals, which requires the Assembly to pay for a retired judge to make determinations on matters. We think it fanciful to suggest that an FOI process conducted by public servants would deliver the same outcome. 

In a bizarre twist, Barr reportedly justified his opposition to the release of the light rail business case on the basis that he was required under the standing order to claim executive privilege – a provision he introduced himself. 

In other words, Barr apparently believes that a standing order which he introduced and under which the Liberals were seeking to access documents that disclosed the expenditure of public monies on light rail requires him to deny access to those documents to both members of the Legislative Assembly and the Canberra community more broadly. Bizarre, indeed.

Jon Stanhope is a former chief minister of the ACT and Dr Khalid Ahmed a former senior ACT Treasury official.