Page 796 - Week 02 - Thursday, 12 February 2009
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those on their merits and we make a judgement about whether or not those issues need to be addressed. The Greens, Mr Rattenbury in particular, and his office have raised a number of concerns with my office about the mechanisms proposed in the amendments that I have foreshadowed this morning and which Mrs Dunne has now tabled in this place and we agree with the concerns raised by Mr Rattenbury and others. I know that Mrs Dunne is unhappy about that, but there is nothing underhanded or wrong about taking into account new information and new views.
The government recognises that there would be a range of issues associated with including the mechanism that Mrs Dunne proposes, in particular the mechanism that provides for documents which may be found to be privileged being viewed by members of this place. Obviously, I am sure, members of the opposition would be very keen to view documents that had been found to be privileged whilst they were held by the clerk for the duration of the arbitration by the independent arbiter.
But I think the point is well made, and I imagine Mr Rattenbury will raise this in his comments later in the debate, that that does create some fairly obscure and unusual circumstances. It is recognised that if a document is claimed to attract some form of privilege and that privilege is waived, even in the most minor of circumstances, the privilege is waived in an ongoing manner. Once privilege is waived, privilege is waived. That is, I guess, the quandary that Mrs Dunne’s amendment presents to us, that the claim of privilege may be upheld, but it will have been waived to allow non-executive members to view the document for the period of time that that arbitration is occurring.
That is indeed an unusual circumstance. It is the circumstance in the New South Wales upper house, that is true, and that is why the government originally proposed the mechanism, consistent with the agreement between us and the Greens, to simply adopt the mechanism in the New South Wales upper house. But we do have to have regard to mechanisms that are suitable for this place and which members in this place are comfortable with. I agree that it does create some unusual circumstances. It was indeed the matter that the government had most concern over in our own deliberations. Given that that concern is now shared—and it is shared—by the Greens, it is appropriate that we respond to that accordingly.
So the government will not be supporting the amendment proposed by Mrs Dunne, for those reasons. I think it is important to reiterate that this amendment is not the most important part of the standing order. The most important part of the standing order is that there is an independent arbiter to determine whether or not a claim of executive privilege is valid and that the arbiter’s decision is binding on all parties in this place.
The most important part of this motion is that the Assembly can call for documents. If a claim of privilege, executive privilege is made in relation to those documents, that document must be referred to the independent arbiter and the independent arbiter decides whether or not the claim is valid. If the claim is not valid the document is tabled in this place. So the whole point of this standing order, which is to resolve that conflict between the legislature and the executive on documents that are claimed to attract privilege, is resolved through the adoption of this mechanism. That is the most important element. It is being put in place in the form of the motion that I propose in the notice paper. I think that needs to be recognised by members. The government will not be supporting Mrs Dunne’s amendment.
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