Page 722 - Week 02 - Thursday, 12 February 2009
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The other part, which is more complex, deals with those documents where claims of executive privilege are made. Where a document is considered by the Chief Minister to be privileged, a return is to be prepared and provided to the Clerk showing the date of creation of the document, a description of the document, the author of the document and the reason for the claim of privilege. That information, having been communicated to the Clerk and made available to members, may then be disputed by any member in this place. A member may dispute the validity of the claim of privilege and, on receipt of that communication, the Clerk will advise the Chief Minister’s Department, who will then be required to provide to the Clerk within seven days copies of the disputed document or documents.
The standing order then proposes that the Clerk is authorised to release the disputed document or documents to an independent legal arbiter for evaluation and report within seven calendar days as to the validity of the claim. It is proposed that the independent legal arbiter be a Queen’s counsel, a senior counsel or a retired Supreme Court justice. That legal arbiter will be empowered to make a decision as to whether or not the claim of executive or, as is often known, Crown privilege is a legitimate one.
If the independent arbiter determines that the claim by the government, by the Chief Minister, of privilege is legitimate then the document is required to be returned to the Chief Minister’s Department and the matter is effectively resolved. If the arbiter determines that the claim of privilege is not a legitimate one then the document is required to be tabled in the Assembly by the Clerk.
There is a nuance in this process that members should be aware of. Where a member disputes the claim of privilege and communicates that to the Clerk and the Clerk then receives the document that is in dispute, it is possible for members of the Assembly to view that document. The document, however, cannot be published; it cannot be laid on the table of the Assembly; and it cannot be copied by a member without an order of the Assembly.
So there is this interesting mechanism whereby, whilst the dispute about executive privilege is being arbitrated, there is the ability for members themselves to view the document in confidence and that is designed to provide—
Mrs Dunne: It is not in the standing orders, Simon.
MR CORBELL: It is in the standing orders. And it is designed to provide them with the opportunity to view the document. It is important to highlight this in the changes. That is the way the government envisages this mechanism working. Members will be able to view the document whilst it is in dispute and it is only when the document is determined to be privileged that the document is returned to the Chief Minister’s Department or, indeed, if it is not privileged, laid on the table in the Assembly and able to be published and able to be made public.
We think this is an important reform, one that the government is supportive of, and I commend the motion to members.
Debate (on motion by Mr Doszpot) adjourned to a later hour.
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