Page 3906 - Week 10 - Thursday, 20 September 2018
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(c) require that if Icon claims that the Agreements or any part of them are privileged or subject to public interest immunity, Icon must, within 14 days of this order, deliver to the Clerk of the Assembly a statement setting out the reasons for the claim of privilege or public interest immunity. A copy of the statement will be provided to each member of the Assembly and any member may within seven days dispute the claim for privilege or public interest immunity. Any notice disputing the claim may be accompanied by a statement setting out why it is disputed;
(d) require that if the claim for privilege or public interest immunity is not disputed then it is accepted;
(e) require that if the claim for privilege or public interest immunity is disputed then the Clerk will inform Icon and Icon must within seven days deliver the Agreements to the Clerk in a sealed envelope and the Clerk is authorised to release the Agreements and the statements to an independent legal arbiter for evaluation of the claim for privilege or public interest immunity and report within 14 days as to the validity of the claim;
(f) require that the Speaker appoint an independent legal arbiter who must be a retired Supreme Court, Federal Court or High Court Judge;
(g) require that the independent legal arbiter provide a report that is to be lodged with the Clerk and:
(i) made available only to Members of the Assembly and Icon; and
(ii) not published or copied without an order of the Assembly;
(h) require that if the independent legal arbiter upholds the claim of privilege or public interest immunity, the Clerk shall return the Agreements to Icon; and
(i) require that if the independent legal arbiter does not uphold the claim of privilege or public interest immunity, the Clerk will table the Agreements. In the event that the Assembly is not sitting, the Clerk is authorised to provide the Agreements to any Member upon request, however, the Agreements do not attract absolute privilege until tabled by the Clerk at the next sitting of the Assembly.
This motion arises from requests by members to obtain certain documents that belong to Icon Water that pertain to their commercial dealings with other private corporate entities. I understand that copies of these documents, albeit redacted, have been provided. However, some members remain unsatisfied with this level of disclosure.
This led to Mr Coe moving a motion under standing order 213A asking the executive, through the relevant shareholder ministers, to produce documents. In response to the Assembly’s motion, the executive made inquiries and sought advice, as is entirely appropriate. Based on this evidence, the Head of Service wrote to the Clerk of the Assembly.
The advice I have is that the executive cannot compel the production of the documents in question. The advice was also that it would be appropriate for the Assembly to follow the course set out in this motion. The motion is not dissimilar to
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