Build a tunnel then turn on the light

The Cross City tunnel is complete, but it seems there is more dirt to dig to reveal exactly what deal was struck between the private Cross City Motorway consortium and the NSW Government.

Greens MPs, with the support of a majority of Upper House members, forced the government to release hundreds of secret documents that struck at the heart of this deal. The papers reveal some howlers. One is that the Cross City tunnel operators will be compensated if future public transport initiatives steal potential tunnel customers away.

It is hard to believe that voters would have been happy swallowing this arrangement if they knew about it beforehand, but the public’s views were irrelevant to this government.

This was a secret deal, stitched up by a government confident it could draw a big, black curtain around negotiations, hiding behind a plethora of legal defences.

To an extent this is true. There are still two boxes of papers that go to the heart of the deal, including the contractual and financial arrangements, which have been stamped “privileged” and therefore kept under wraps. By keeping the lid on these boxes the public is kept in the dark on critical arrangements. As an Member of Parliament I can read them but I am not permitted to divulge them publicly.

I do know that the public was poorly represented when the Cross City tunnel negotiations were underway.

The public has a right to know what licence the consortium has to demand further road closures if the number of cars using the tunnel remain below expectations.

It should also know whether the tunnel operator has been handed the right to extend the 30-year period during which it is now authorised to seek concessions, if it hasn’t managed to recoup its investment.

It could be that our grandchildren will still be forking out for this project long after we are gone.

Upper House MPs, sometimes at the request of community groups, often call on the government to release papers that should be subject to public scrutiny. Five times since 2004 the government has failed to disclose all documents requested by the Greens through this parliamentary process.

We have sought papers that shine the light on important matters, like deals with the private sector to build public schools and roads, plans for Callan Park and the state of decrepit NSW rural branch lines. Too often ministers stonewall our requests.

A generous interpretation is that government agencies are sloppy or read the request for papers too strictly.

A less generous one is that departments are being directed to keep papers under wraps or are ducking behind legal defences, such as commercial-in-confidence and cabinet-in-confidence, that are later found to be unjustifiable or invalid. Only through persistence have many papers been ultimately released.

For example, last year we sought to make public the contract between the government and the private consortium selected to build nine new public schools. The government initially hid behind privilege.

Advice was sought from retired Supreme Court Judge Sir Lawrence Street who said the grounds for claiming privilege “must be balanced against the public interest in transparency and government accountability in relation to the building, operating and financing of part of the fabric of the public education system in NSW”.

As a result, most of the contract was subsequently released, including the formula used to work out the profits to be made by the consortium.

Transparency and accountability are critical to a healthy democracy. During 10 years of power, the NSW Government has white-anted these twin pillars. A fine example is its recent legislation that effectively dismantles 25 years of hard- won environmental and planning protections. A minister can now decree any major project a “significant development”, further robbing the community of its right to be consulted about, and participate in, the planning process.

The government’s refusal to perform the badly needed job of reviewing our extremely outdated freedom of information laws, despite 10 years of urging by the ombudsman, is another symptom of its distain for openness.

Significant projects like the Cross City tunnel and the private construction of public schools have major ramifications for the community. If the NSW Government decides to give monopoly rights to the private sector, the deals should be open for scrutiny.

Greens MPs are now pursuing the release of the two boxes of papers that will reveal exactly what the government gave away to get a tunnel dug under Sydney. A healthy government would not fear this kind of public scrutiny that is a cornerstone of democracy.