Page 4005 - Week 15 - Wednesday, 16 December 1992
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I do not quite know how to proceed from there. I think I ought to remind the Minister again about the seriousness of this matter and perhaps give him another opportunity to refute the allegations that are being made against him. He did not seem to take them too seriously the first time around. I would much rather hear his justification, if he has one, before the Assembly votes on this matter, because it is indeed a very serious one.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (4.11): The Government is in a somewhat difficult position in arguing the defence here because there is an issue about a legal advice on which we took a point of legal professional privilege. Mr Humphries would be aware that that is a legitimate point for any government to take. There was a decision handed down in the Administrative Appeals Tribunal which was adverse to the Government's assertion there. An appeal has been lodged and is awaiting hearing in the Supreme Court. Mr Stevenson waxed lyrical about that and was suggesting that there were all sorts of conspiracies involved in that.
The simple fact of the matter is that the appeal was taken not on the basis of the merits or demerits of the particular document. Mr Kaine was suggesting again that there was some conspiracy shown by the fact that we were not releasing the document. The point is that we have appealed on grounds that the tribunal was wrong in law and that its basis, its test, for what legal professional privilege is, as applied to advice that an ACT department receives from the ACT Government Solicitor's Office, would significantly weaken the hand of any government of any political persuasion in the future. It would mean that the relationship between a government Minister and their legal adviser would be significantly different from the relationship between any member of this Assembly and their legal adviser.
If any members are inclined to take the view that there is something fundamentally evil about a government wishing to preserve confidentiality in the relationship between its agencies and their legal advisers and to keep their legal advice confidential, if they think that is a bad thing, I would ask them whether they would be happy if their relationships with their legal advisers were equally not subject to any form of privilege. I suspect that if they ask themselves that question they will be less inclined to see something conspiratorial in the fact that there is an appeal being run on the general grounds of the law in relation to legal professional privilege.
Our argument - I do not want to go further into it, because obviously it will be litigated - essentially is that the test that was set down by the ACT Administrative Appeals Tribunal in the Proudfoot matter sets a test of what is legal professional privilege that is fundamentally different from tests that have been put down by that tribunal in its Federal jurisdiction, and indeed by the courts. That matter will be resolved one way or the other by the Supreme Court.
Mr Stevenson's indictment is full of very flowery phrases about Ministers of the Crown and references to Annexure F and Annexure D, and it all sounds very impressive; but essentially it comes down to this issue that has been debated at length in the place, and that is, "What do you do about notification of HIV?". Mr Kaine said that it is an issue on which there has been a difference between the Government and the Opposition, and the Opposition is somewhat at odds with similar Liberal governments across the country. The facts of the matter are that
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