Page 4009 - Week 15 - Wednesday, 16 December 1992
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MR HUMPHRIES: All right, only in coded form. The question is: Could he sustain that position when the law stood against him? Obviously, a Minister who is a lay person, or even a Minister who is a lawyer for that matter, cannot be expected to know all the law. We have a legal fiction that people know all the law, but the fact is that you cannot know all the law and you have to rely on advice. This is the crucial question, Madam Speaker. The question, it seems to me, is really one of what advice the Government, and particularly the Minister, received on this subject.
I would maintain the view that if the Minister received advice which was ambiguous, which indicated that there was no clear view on what the law said, he would be entitled to initiate action to clarify what the law said, but at least to pursue a policy which accorded with one of those two views of the law. He was entitled, in other words, if that was the case, to ignore the view that AIDS was notifiable in non-coded form and instead pursue a view that it was notifiable only in coded form. But it seems to me that in recent weeks later evidence received by the Government had contained no such ambiguity; that the evidence was overwhelmingly clear that AIDS/HIV was fully notifiable not in coded form but in the ordinary sense and that it has been so notifiable for at least 10 years.
Madam Speaker, the Minister has at his fingertips the power to indicate which of those two views is correct by making clear what his advice actually said. Mr Connolly has suggested that the advice cannot be produced because it is subject to legal professional privilege. Legal professional privilege is, as it were, a shield which is at the disposal of the client who commissions legal advice. A client, generally speaking, pays for advice from his solicitor or his legal adviser. He gets the advice, and that advice from the solicitor to the client is protected by legal professional privilege.
But the client - in this case the ACT Government - is fully at liberty, if it so chooses, to disclose that advice, because it has paid for it. It is its advice. There is no magical barrier which says that legal professional privilege prevents you from putting on the table legal advice you have obtained. If that were the case we would never have seen any legal advice obtained on behalf of this Government - and, of course, we have, on many occasions. So, the question is whether the Government wants to release the advice.
I accept a second point made by the Attorney, and that is that at the present time the Government is involved in legal proceedings in the ACT Supreme Court on appeal from the Administrative Appeals Tribunal and the question of legal professional privilege is actually at issue in those proceedings. I can see an argument there that if we were to publicly make available that legal advice we would prejudice our position in respect of that appeal. I can see an argument to that effect and I am prepared to acknowledge that.
But there is another way out of this matter. There is another way of the Minister or the Government showing us what actually happened, what his actual advice was, without threatening the Government's legal position in that appeal, and that is by giving that legal advice to at least some members of the Assembly on an in-confidence basis. I think we have shown ourselves to be responsible enough in this Assembly to handle that kind of confidentiality without any threat that we would dishonour that trust.
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