Page 2836 - Week 09 - Wednesday, 17 August 2005
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legal principle, we should remember to be careful not to accept it on face value. I will come to the issue of privilege in just a second.
During estimates as well, in relation to the rule of law, the Chief Minister tried to claim the breach of the Human Rights Act was defending the law. That was an interesting take. He said that the previous government had breached the law because there were some international conventions, but it was pointed out to the Attorney-General at that time that an international convention has no effect in Australia until it is incorporated into domestic law. That is another example of where the Attorney-General has claimed to be hiding behind a legal principle or claimed to be following the rule of law and has got it wrong.
That brings me to client legal privilege, which is what Mr Stanhope is claiming now in relation to the release of documents. As I said on radio yesterday and again today, the Attorney-General said that he would not be releasing the advice because of privilege. Legal professional privilege, or client legal privilege as it is now known, applies to documents created for the dominant purpose of anticipated legislation. But the privilege, as the name would suggest, attaches to the client. I was speaking to my wife about that this morning and, just from watching Boston Legal and other programs, she realised that privilege attaches to the client. So the client in this case, being the ACT government, can release that advice at any time. No principle of legal privilege is preventing Mr Stanhope from tabling that advice today or from presenting it publicly so that we can all see what the advice says. He claims that he cannot as it is privileged. That is just wrong. The privilege attaches to the client. The Attorney-General on behalf of the government is the client and could release that at any time.
The attorney also said that no government tables its legal advice. I believe that is wrong as well. I am informed that Mr Humphries, as Attorney-General, released legal advice while in government. So that is another case of the Chief Minister saying something that is just not true. It is not true that he cannot release it because of privilege. He is the client and the privilege attaches to the client. The only convention here is that governments do not like to release documentation that might embarrass them. That is what is going on here. There is no legal principle. Mr Stanhope keeps saying he cannot do it because of privilege.
As we saw before with sub judice, as we have seen before with other areas of the law, he seeks to hide behind so-called conventions but the fact is—and I will be happy for Mr Stanhope to argue this point—the privilege attaches to the client. The client is the ACT government. The only reason for not releasing it is that it may be embarrassing to this government. Any attempts to spin it any other way, any other attempts to say we cannot do it because of privilege, are completely disingenuous and dishonest.
I seek to move my amendment now calling on the Attorney-General to table all of the legal advice in relation to this matter so that the people of Canberra and the ACT Assembly can see whether Mr Stanhope’s legal advice really backs him up. I call upon the Attorney-General to do that.
Mr Stanhope: I raise a point of order. This amendment is in the same terms as a motion that was moved and defeated yesterday.
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