Page 232 - Week 01 - Wednesday, 10 December 2008
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who calls for documents to move a motion which, if adopted, calls for the production of certain documents. The executive then has two choices: one is to simply provide the documents and say, “There is no dispute about that; the documents will be provided,” or, alternatively, to say, “No, we believe these documents are protected documents, they are executive documents, and their release would be detrimental to cabinet government and the free and efficient operation of cabinet government and we do not believe they should be made available.”
In those instances, the documents themselves still need to be made available to the Clerk, in that case, of the New South Wales upper house. The documents then are held by the Clerk. They can be viewed by any member of the New South Wales upper house but they cannot be copied or published; and a dispute as to whether or not they should be published and made more broadly available, publicly available, is referred to an independent arbiter appointed by the presiding officer of the upper house.
The New South Wales upper house rules provide that that independent arbiter must be a retired judge or a QC or senior counsel. They determine whether or not there are grounds for the government’s claim of executive immunity for those documents. They provide a report to that effect to the presiding officer. That is made available to members and then it is up to members of the upper house in New South Wales to determine whether or not they want to continue to press their claim for the publication of those executive documents.
Remember: those documents will have been made available to members; they are able to be viewed; so members can make their own judgement as to whether or not the documents attract a claim of executive privilege or executive immunity. Members will have available to them the report of the independent arbiter on the government’s claim in that regard.
I think that is a good process. It will be a process that, I am sure, in some instances in the future, will make this government uncomfortable, as it will make any government uncomfortable. But the process is a good and fair one and it allows an independent arbiter to report to this place on whether or not the claim of executive privilege is warranted. That is the mechanism that the government and the Greens have agreed should be put in place to resolve disputes such as the dispute we have had running in this place for some time on the release of the functional review.
The Treasurer has gone into detail as to why the government believes the release of that particular document is not warranted. We are prepared to subject that document to the processes of that independent arbiter and to the mechanisms as proposed in the New South Wales upper house and outlined in the agreement between the ALP and the Greens.
I think in all of this debate it is worth reflecting that there are two sides to this debate and that each has legitimate claims. The challenge for us as legislators, as members of this place, is to agree on a mechanism that will allow these disputes to be arbitrated and go forward, rather than point scoring, rather than quick, political opportunism to try to draw points away from one party and towards another. Let us agree on a process. And we have an agreement to do that. We will do that.
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