Dispute over tabling NBN document a harbinger of things to come

The stand off between the Government and the Senate (and one narrowly avoided in the House of Representatives) over the tabling of the NBN business case isn't the first and won't be the last where claims of public interest immunity arise in this parliament. In this case the Opposition has had an easy run in making the refusal to date sound hollow, given the drip feed approach to disclosure of detail since the proposal was announced many moons ago, and disputes since. However a refusal to table a document prepared for submission to cabinet is a well established public interest ground for refusal, in contrast to broad, claims that lack specificity concerning the public interest involved. While the need for proper cabinet consideration has been thrown around as the reason for refusal this week, it remains to be seen whether the Government responds along that line or resorts to the much less precise "highly sensitive and commercial in confidence" claim by the NBN CEO.

If the Government claims public interest immunity, regardless of the grounds that's the end of it under existing arrangements unless the Senate itself takes action to deal with a contempt by a senator/minister.

The prospects of a scheme to deal with a refusal to table documents in response to an order of the Senate, or to deal with disputed claims, by reference to an independent arbiter were dashed in February when the Government and the Opposition voted against. Back in those pre "new paradigm" days Senators Xenophon and Ludlam were left to champion the cause in a dissenting report, to little effect.They have more clout these days, even more in the next Senate from 1 July next year.The issue didn't get a mention in the post election Government-Greens agreement or the agreement with the House independents.(Correction: clause 3(e) of the agreement with The Greens states:"Refer issues of public interest disclosure, where the Senate or House votes on the floor against the decision of a Minister, to the Information Commissioner who will arbitrate on the release of relevant documents and report to both Houses.) It was raised in the Senate this week where Senator Ludlam said: "We will be moving very, very shortly to make sure that that agreement is put into effect.."

This is an extract from the dissenting report. The Commonwealth Ombudsman who put the idea to the Committee at the time, Professor John McMillan, is now himself the Australian Information Commissioner.

"The majority report gives little consideration to the very constructive and sensible suggestion by the Commonwealth Ombudsman of using the proposed Information Commissioner to act as an independent adviser to the President of Senate on public interest immunity matters. The proposed Information Commissioner might usefully advise the Senate in a similar way to the way the Auditor-General currently advises the Senate with respect to the Murray Motion (Senate order for departmental and agency contracts). The Commissioner could examine the documents over which the government has claimed public interest immunity and refused to produce to the Senate and comment on the veracity of those claims. This proposal has numerous benefits, including:

• avoiding any delegation of the Senate's power; and
• only requiring government to produce documents over which privilege is claimed to the Information Commissioner (which, if the Information Commissioner Bill 2009 and amendments to the Freedom of Information Act 1982  are passed, it would have to anyway).

The Information Commissioner could then prepare an annual report to the President of the Senate outlining the government's compliance with the Senate's various orders for production of documents."

This scheme would fall well short of a NSW scheme for dealing with these situations-outlined as follows in the February report:

Since 1999 the NSW Legislative Council has had an independent arbitration process for disputes about the validity of public interest immunity claims, initially through resolution and subsequently in a standing order adopted in May 2004.

2.51 Under Standing Order 52 (at Appendix 3), the NSW Legislative Council may order documents to be tabled by the Clerk. The Clerk communicates the order to the Department of Premier and Cabinet, and the department must provide the Clerk with the documents, and an indexed list of all the documents being provided in response to the order. Once tabled, the documents and the list become public documents.

2.52 If the NSW government makes a privilege claim with respect to a document, the document is made available, through the Clerk's office, to members of the Legislative Council only, and may not be copied or published without an order of the Council.

2.53 Any member of the Legislative Council may dispute the validity of a claim of privilege in writing to the Clerk. On receipt of such a dispute, the Clerk is authorised to release the disputed documents to an independent arbiter for evaluation of the validity of the privilege claim. Within seven days, the arbiter lodges a report assessing the validity of the privilege claim. The report is available only to members of the Legislative Council and cannot be published or copied without an order of the Council.

2.54 The arbiter's report is advisory, not determinative. The determination of whether or not documents are made public remains the responsibility of the Legislative Council.

2.55 The standing order specifies that the arbiter must be a Queen's Counsel, Senior Counsel or retired Supreme Court Judge, and is appointed by the President of the Legislative Council.

2.56 Since 1999, the NSW Legislative Council has agreed to over 220 orders, of which 45 have been subject to independent arbitration. In most instances, Sir Laurence Street, former Chief Justice of the NSW Supreme Court has been appointed as the arbiter in NSW,however Mr Terrence Cole QC and the Hon Matthew Clarke QC have also arbitrated disputes.

Given what lies ahead in both houses of parliament a system to deal with disputes of this kind is sure to be back on the agenda, and to have plenty of work if it gets up.