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Monday, October 16, 2006

NSW Crown Solicitor claims "government crisis" over disclosure

Was it something in the air, the alignment of the planets, or perhaps a full moon that prompted the NSW Crown Solicitor Ian Knight, in his speech to the Lawyers Conference, to open fire on the High Court, Parliament and the media? While it wasn’t of the same earth shaking significance, it was the same day (12 September) that the Pope, speaking in Regensburg, quoted a 14th century Byzantine emperor as saying Islam was evil and irrational and had been spread by the sword. Oh dear.

Knight’s speech needs to be read in full to appreciate the enormity of the “crisis” facing the NSW Government, and the urgent task for government lawyers to defend the Executive and the rule of law.

Perhaps you didn’t know before this that both are under attack: some court decisions have got it wrong when it comes to understanding government, the NSW Legislative Council doesn’t understand its proper role, the administration of justice requires a broad and accommodating approach to legal professional privilege.

The speech is full of alarm and concern about the Legislative Council exercising powers to require documents to be produced, distorting our system of government, and the Government’s ability to govern; and the media, driven by a “lust” for government information, and perpetrating the “myth” that it acts in the public interest.

Things are so bad on this front that the very fabric of society may be imperilled: “…no one really knows whether a free press can, by the way it chooses to report, so damage democratic institutions as to put them at risk”.

I’ll leave it to others to put Knight on track about Parliament consisting of two houses, each with a role to play in passing laws, holding government to account by scrutinising its actions, and contributing to policy debate and ideas; and the media, (Matthew Moore has made a start already) can explain the importance of a free press, and the contribution it makes to public debate on matters of community significance.

However a couple of things need to be said about Knight’s comments concerning record keeping, legal professional privilege, and the public interest.

Knight says that the requirement to produce documents to the Legislative Council may be leading to “a distortion in the State’s written records. It would be a concern if historians looking back discern from 1998 (the date of the High Court decision referred to) a dip in the making of records”.

This seems to be a wink and nod suggestion to his audience that we all know what’s going on these days – things aren’t being recorded that should be recorded, and it’s all the fault of the Legislative Council, and the High Court, both of whom should know better.

The NSW State Records Act requires every agency chief executive to ensure that full and accurate records are maintained in the course of carrying out public functions. Guidance is provided in a standard issued under the Act, stipulating that records should be created and retained concerning advice, meetings and conversations in the course of official functions. Here is the short version - Recordkeeping Reminders

Knight and others in government should be concerned with any failure to record important steps in government decision making as required by the State Records Act. He and his public service colleagues have a duty to insist on full compliance.

On legal professional privilege, Knight sees problems in some recent decisions, including a Federal Court judgment that led to AWB being forced to release a draft PR statement to the Royal Commission, and dismisses critics of an unsuccessful attempt before the NSW Administrative Decisions Tribunal to claim an exemption on the grounds of privilege under the FOI Act for some routine documents held in his office relevant to a conveyancing transaction.

Knight says media critics of the Attorney General’s Department over this latter matter misunderstand the nature of legal professional privilege – they should appreciate that communications made in particular circumstances need to be protected, even if documents don’t contain sensitive information.

Knight shows the lawyer’s preoccupation with technical legal issues that are a bane to the proper administration of FOI laws. He suggests that lawyers and their clients should manage communications carefully to ensure privilege is protected. Knight seems to miss the point that legal professional privilege is for the client, not the legal adviser to assert. In any event, government agencies have a discretion to release any document, even one that technically could be subject to a privilege claim.

At the risk of giving the Crown Solicitor new grounds for apoplexy, someone should refer him to the NSW Ombudsman’s Fact sheet 12 on Legal Advice - t0IVL1UD.PD , and the Ombudsman’s views about circumstances in which a government agency should consider the release of advice to members of the public.

Perhaps time didn’t permit Knight to add a few cautionary words about legal professional privilege. For example, don’t claim privilege unless you can demonstrate that a lawyer-client relationship exists. NSW WorkCover Authority spent a large amount of public money going all the way to the NSW Court of Appeal to argue unsuccessfully that a report from a cost consultant was subject to legal professional privilege.

A quick glance at the annual reports of the NSW Ombudsman would also alert him to some other claims for privilege that would not stand up to scrutiny. Best of all was the one a few years ago when an agency claimed that a lawyer’s business card attracted legal professional privilege. The agency had been emboldened to make the claim by advice from their lawyers (not the Crown Solicitor’s Office in this case) to this effect.

Knight correctly tells us that the Executive “must and is best placed to act in the public interest” but shows not the slightest glimmer of recognition of the oft perceived problem that government is seen to act to protect and promote its own interests, rather than those of the broader community. The NSW Court of Appeal in the WorkCover case referred to above has made it clear that broad, theoretical claims about reasons to refuse access to documents on public interest grounds of the kind put forward in that case should be rejected in the absence of clear, credible evidence.

It will be interesting to see what others make of his controversial views, and his advocacy for an association to be formed to “comment and educate in an authoritative, non personal manner” in the defence of all three arms of government and the rule of law.

The Crown Solicitor sent a strong message to lawyers throughout the public service about their dealings with Parliament, the media and the public. “Tone at the top” as set by public service leaders has a pervasive effect.

Perhaps the Premier or the Attorney General might have some thoughts about the message sent on 12 September.

1 comment:

  1. It is disturbing that as the Crown Solicitor of NSW, Mr Knight believes, as part of the Executive, that he and his peers have the right to undermine the administration of legislation, the will of the parliament, which is supposed to reflect the will of the people.

    Surely, the Crown Solicitor's role is to ensure that, as far as possible, the objects of the FOI Act are implemented, i.e. access to government records and the amendment of those records where they are incorrect, misleading, etc.

    Instead, his office has set about intervening on behalf of the bureaucracy in ever-increasing numbers of FOI applications under review in the ADT.

    Given his voiced disdain with the failure of some government agencies to appeal to higher courts on decisions he disliked, is it that he has increased his officers' involvement in FOI reviews in order to see them through appeals to higher courts until he gets a decision that dilutes FOI legislation and sets a precedent for future applications.

    If this is so, then he is surely on the road to success as very few FOI applicants have the resources to stand their ground and defend a decision in a lower court or tribunal. Representing oneself in a higher court is doomed to failure.

    Alternatively, and cynically, is it that Mr Knight's increased interest and intervention in FOI reviews will serve to demonstrate to the Attorney General and the Government generally, his need for increased funding and resources? It naturally follows that increased funding and resources leads to increased power.

    Vigilance is a necessity.