Page 2054 - Week 06 - Thursday, 7 May 2009
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As a society we entrust independent arbiters to assess the validity of the competing claims according to an established body of law, and there is a body of international, as well as Australian jurisprudence, that clearly establishes the role of courts and tribunals in assessing these types of claims. The person appointed as legal arbiter will be suitably well qualified to properly resolve disputes and provide defensible and impartial reasons for their decision. The Greens believe that this is the most appropriate way to resolve these disputes. It is not appropriate that these documents be viewed if they should legitimately be protected by privilege. If there is no valid claim of privilege members and the public will be able to view the documents. If there is a valid claim then it is appropriate that members do not see the documents.
Those were the words of Ms Hunter on 12 February this year when the Assembly agreed to the establishment of the independent arbiter process. I repeat:
… we entrust independent arbiters to assess the validity of the competing claims. There is a body of international, as well as Australian jurisprudence, that clearly establishes the role of courts and tribunals in assessing these types of claims … The Greens believe that this is the most appropriate way to resolve these disputes.
It is interesting, therefore, that when Mr Rattenbury is unhappy with the decision of the arbiter, he seeks to revisit the argument, he seeks to traduce the reasoning of Sir Laurence Street, the independent arbiter that he appointed. I think the most interesting comment that Mr Rattenbury made in his speech was that he deliberately confused the reasoning of the arbiter.
He did that by saying that what this decision meant was that the government could wheel any document into the cabinet, any document at all, and say it is cabinet-in-confidence, it is privileged and you are not allowed to have it, and that Sir Laurence Street’s decision basically says that is okay. No, it does not. Sir Laurence Street’s decision does not say that, Madam Deputy Speaker. In fact, he says:
That content—
that is, the content of the document—
will be decisive of whether or not the claim for privilege is valid and should be upheld.
So it is not just that a document is cabinet-in-confidence. That is not the reasoning of the arbiter. In fact, the arbiter says that the document must be central to the deliberations of cabinet. I repeat that he said it must be central to the deliberations of cabinet. That is effectively what he says. It is not that any old document can get wheeled into the cabinet room and all of a sudden has some magical status. That has not been the decision of courts on these matters. Indeed, many documents that have been claimed to be cabinet-in-confidence have been released as a result of contested processes. But what Sir Laurence Street says very clearly is that in the circumstances where a document is central to the deliberations of cabinet, and its release would compromise the confidentiality of the cabinet decision-making process—
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