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Legislative Assembly for the ACT: 2003 Week 6 Hansard (19 June) . . Page.. 2152 ..
MR STEFANIAK (continuing):
It goes on to say that the issue of privilege is very much a fundamental issue for the Assembly. That is a very important point.
Accordingly, the government has sought to delete a number of subsections from the bill, namely 3A, subsections (c) to (e), to overcome this problem. I think that would probably achieve their wish.
There may well be, however, some further problems with that. I think it's important we actually do what is best in terms of finalising this piece of important legislation.
Clayton Utz decided there were other options available for the protection of the document. I think it's probably important to just see what they state in a couple of paragraphs in their particular advice, because this is important and has obviously generated what's occurred today.
In paragraphs 37 through to 40, they actually state:
There are several other options for protection of the report of the inquiry.
That is something we all want to see. They continue:
On the one hand, there are alternative statutory protections. That is, there are other ways that the protection provided by the Bushfire Inquiry Act or the amendments proposed by the Bushfire Inquiry Amendment Bill might be formulated. While we have not made exhaustive searches on this point, we draw your attention to the approaches of the following 2 NSW Acts:
Special Commissions Of Inquiry Act 1983
(see, especially, sections 7, 8, 9, 10 and 17); andRail Safety Act 2002
(see, especially, sections 66, 67, 75, 76 and 78).They attach copies of those provisions. They go on to say:
In the interests of time, we do not offer any detailed analysis of the provisions in question. If you require such further analysis, please let us know. We draw your attention, however, to subsection 9(5) of the Special Commissions of Inquiry Act 1983 which, on its face, excludes the operation of parliamentary privilege in relation to determining the admissibility of certain evidence. The attraction of this sort of provision is that it demonstrates that the legislature has turned its mind to the potential operation of privilege and also indicates, expressly, that privilege is not to apply.
They then go on to say-and I think this is most pertinent:
The attraction of the Rail Safety Act 2002 example is that protection is provided without any reference to the legislature. The protection afforded by section 78 of that Act operates on the publication of the report by the Director-General, not on its presentation to a minister or the legislature. In so doing, there is no suggestion that parliamentary privilege is attached.
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