Page 3217 - Week 07 - Thursday, 1 July 2010
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There is mention of the issue in the dissenting report. Of course, there has been a recent decision of the Federal Court which also bears on this matter. To give the minister his due, he mentioned that when we had this debate earlier in the year. The decision in Sportsbet Pty Ltd v New South Wales of 16 June 2010 supported the race field fee legislation in New South Wales but did not support the way in which the legislation was being implemented, specifically the way in which the fee was imposed by discriminating between bookmakers. The significant outcome is that the principle of the race field fee has now been supported by the Federal Court. So provided the ACT’s legislation is consistent with that in New South Wales and we implement the fee properly, our race field fee should be secure, but we have asked the minister for an update and perhaps he will give it to us when he responds to this issue.
The second issue that came up, particularly during discussions in estimates when we had the commission before the estimates committee was, of course, the proposed sale of the Labor Club, concerns about the nature of the sale process, and the inquiry by the commission. We accept the outcome. We note concerns, particularly relating to documents that were protected by legal professional privilege, and we note that the commission was not empowered to seek information that might support action being taken by the Australian tax office or ASIC.
I would note a recent decision of the High Court in the matter of Osland v Secretary to the Department of Justice of 23 June 2010—yes, just last week—where the High Court found that certain documents were not protected by legal privilege. Rather, the public interest outweighed any privilege. I have not investigated the full facts of the case as to how they would relate to the commission’s recent inquiry, but I will be taking this up with the commission in due course. It is an interesting case. Quoting from paragraph 4 of the decision:
Mrs Osland … applied for access to all of the advices provided to the Attorney-General and associated departmental correspondence. On 2 January 2002, access was denied by an officer of the Department of Justice and again, on 8 February 2002, by an authorised delegate of the Secretary to the Department … Access was denied on the basis, inter alia, that the documents attracted legal professional privilege.
I will not read all of it. I will read the last paragraph as it is probably the best one to read:
Having regard to the basis upon which the Tribunal’s decision can be supported by reference to the contents of the documents in the circumstances of this case, there is little room left for the exercise of any discretion adversely to Mrs Osland.
The interesting thing, of course, is that 86 documents were withheld by the Labor Club, which created problems for the commission. The reference to them being held was “legal professional privilege”, so one cannot really be sure what is in there. There is now a case that says that if there is a public benefit to be made then legal professional privilege in this case does not apply. So it will be interesting to see how it is applied in future and, indeed, what the commission will do in due course. We had Mr Jones from the commission before us. He said things like:
We got a lot of documentation and we had many, many hours of interviews …
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