Page 2044 - Week 06 - Thursday, 7 May 2009
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now become apparent that the Liberal Party merely objected to the government’s claim for privilege but did not think to present any supporting evidence whatsoever to back up their claim.
I appreciate that it must have seemed obvious to them that the government’s claim was weak, but I am sure that the Leader of the Opposition has learnt from this, as we have, that he had to back up his assertions with something more than a comment or a brief letter if he is to have any chance of convincing the unconverted. Anyway, we will be revisiting the way in which the arbitration process operates to ensure that both sides of the arguments do get put in the future.
With the many months they had to prepare their case and the vast legal resources at the government’s disposal, it is, in retrospect, obvious that the playing field would have been tilted so dramatically in the government’s favour that even the weak argument they presented to the arbiter would have had a good chance of being accepted. The fact is that the government have approached the independent arbiter process as if it were party to an adversarial legal battle, but in this contest there was no opponent.
It has become apparent that, for the process to operate in its current form, it needs to be an inquisitorial process, and the arbiter must conduct his or her own inquiries and put the government’s claims to test. That has not happened. The arbiter was obviously expecting more of an adversarial process and, having only received one side of the argument, has accepted that argument.
We have said that we will accept and abide by the arbiter’s decision, and we will. But we are not happy, and we will make sure that such a defective process does not occur again. Might I add, I fully understand the government’s glee at having got away with it. The government’s case contained no discussion of the trend in advanced democratic systems towards narrowing or qualifying the extent of executive privilege, nor did it contain any judicial authorities which would support the case for release of the functional review. These glaring deficiencies highlight the need to reform the manner in which the Assembly satisfies itself that any document should not be produced, because our resolve is still strong. We still want to avoid the costly and lengthy legal battle, which is the alternative to some form of independent arbitration.
In the circumstances, it falls to me to put on the record now the weaknesses of the government’s argument in order that the general public and legal experts can see for themselves why we feel that the faulty process has led to an unfortunate outcome. I urge anyone who has a genuine interest in this matter to obtain a copy of both the government’s submission and the arbiter’s report and they will see why we are so disappointed at this outcome. It is not because we are disappointed with the results; our disappointment, rather, is that the process has failed. It could well be that the report is at law a document that should not be released. We will not know that until there is a change of heart, a change of government or the report is released from the archives in a few decades time.
While the government’s submission acknowledges that the power of the executive to withhold documents from the Assembly depends on the documents satisfying the tests
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