NSW Parliament sorts crown privilege and public interest immunity claims

And in some respects it's a win for the public right to know that government is discharging its responsibilities to safeguard our interests as it is required to do.
 
See here for background but in brief, the issue arose following an order by the NSW Legislative Council to produce the Crown Casino VIP Gaming Management Agreement for the James Packer casino to be built at Barangaroo. 

The Department of Premier and Cabinet supported by Crown claimed privilege for parts of the agreement citing commercial confidentiality, statutory secrecy and public interest immunity and arguing they should not be tabled and available for public inspection. (See Correspondence.)

The Independent Arbiter (former Crown Solicitor and President of the Court of Appeal) Keith Mason QC examined the agreement, accepted some of the claims but rejected others. 

The Greens Dr John Kaye moved the matter be referred to the Privileges Committee to assess the Arbiter's decision. DPC and Crown continued (in confidential submissions) to argue their case.

The Privileges Committee recommended that the Council order tabling of the agreement in accordance with the decision of the Arbiter.

Dr Kaye decided not to push for more. The version of the agreement redacted in accordance with the ruling of the Arbiter was tabled on 13 November.

The exercise provides another example for parliaments elsewhere around the country that have no mechanism to resolve disputed claims that the NSW system is an excellent model. 

The Privileges Committee report reveals that since 1999, the Legislative Council has made over 300 orders for production of papers."In almost 50 instances, the services of an independent legal arbiter have been employed. In the committee’s view, the process is robust and effective."

Sean Nicholls in The Sydney Morning Herald highlights the bits that the government unsuccessfully argued to the Arbiter and the Privileges Committee should not be publicly disclosed, in particular Schedule 1 of the Agreement. The schedule includes measures that the government required in the agreement to ensure Hong Kong/Macau gambling magnate Stanley Ho or his associates had no involvement in or connection with Crown's activities here or overseas, ever.

There are differences between the issues and those that arise under public access to government information law, but the following points from the Privileges Committee report are of interest and some relevance:

Little cause for celebration from preliminary Victorian ruling relating to executive privilege

Victorian Greens MLC Greg Barber claimed a Round One victory following the Supreme Court decision this week rejecting the government's bid to summarily dismiss his application for a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet or prepared by an independent contractor and considered by Cabinet. Justice Emerton said [34]:

"I could not be satisfied that the proceeding had no real prospect of success, or that it disclosed no cause of action or constituted an abuse of process based simply on the principle of comity and deference, or on the proposition that the courts may only determine the existence of a privilege as an incident of a controversy arising under general law."

But I'd hold the bubbly. The best that can be said is it isn't over..yet.

Justice Emerton [36-44] went on to list the significant obstacles that Mr Barber will have to overcome if he is to succeed on the substantive issues.

36. In my view, the principal difficulty faced by Mr Barber is that, on the facts presently before the Court, there appears to be no dispute between the Legislative Council and the Treasurer about whether the Treasurer was entitled to withhold the Deloitte report from the Council. The Legislative Council has passed a motion calling for the production of documents fitting the description of the Deloitte report; the Treasurer has responded to the Legislative Council by confirming the existence of the Deloitte report but asserting that on grounds of privilege, he is not bound to produce it to the Council as requested; the Legislative Council has taken no action to require the Treasurer to substantiate the claim for privilege or to compel the production of the Deloitte report. It might be inferred that the Legislative Council has accepted the claim for privilege and agreed to let the matter lie.

Justice Emerton decided [45] that although Mr Barber’s prospects of success appear to be poor on what has been presented to date, he couldn't rule he had ‘no real prospect of success’, let alone that the application for a declaration ‘would necessarily fail’.  With Mr Barber taking some comfort from this final observation:

"Nor am I persuaded at this stage that the proceeding discloses no cause of action or constitutes an abuse of process. It is appropriate that the issues be fully ventilated. Given the complexity of the issues of jurisdiction and justiciability and the limited context in which they were argued, even if I were satisfied that the proceeding had no real prospect of success, it would not be in the interests of justice to dismiss the proceeding summarily."

Barber says cut it, Ted.

Victorian Greens MP Greg Barber takes on the State of Victoria tomorrow in the Supreme Court concerning the failure to table in parliament documents on the Myki ticketing system. See this earlier post on some of the issues.
(Update- the Herald Sun reports the  decision was reserved on an application to dismiss.)

Treasurer Wells a long way from time in the stocks

Majorly

President Obama's resort to executive privilege in support of the refusal by Attorney General Holder to release documents to a congressional committee, a first for his administration, didn't protect Holder from a subsequent contempt motion. Closer to home, we have our own argument over parliament's powers to order production of documents.

Victorian Treasurer Kim Wells refused last year to comply with a Legislative Council motion requiring the tabling of a review report by consultants Deloitte of Myki, the controversial public transport smart card system. The Treasurer responded by advising that the report was prepared for consideration by a cabinet committee, that the council did not have power to require its production, and that the government had decided not to provide it.

Nothing happened in parliament thereafter but the matter is now in court. Greens MLC Greg Barber initiated action in the Supreme Court in March seeking a declaration that the council has power to order production of documents prepared outside cabinet and considered by cabinet. Not surprisingly all sorts of issues arise before the court gets to that point.

In a submission lodged last week the Solicitor General seeks an order that the proceeding be dismissed or stayed, or judgment be given for the Defendant on the grounds that the claim has no real prospect of success or is an abuse of process, based on legal principles concerning the order sought, the nature of privilege in Victoria, and the separation of powers. In essence:

• there is no justiciable dispute to which determination of the existence of parliamentary privilege is a necessary incident;

• the Legislative Council has not yet considered whether to assert any power to compel production, and the Court should not intrude into the workings of parliament unless compelled to do so;

• the relief sought is merely hypothetical or advisory  and should not be entertained in the abstract and apart from a justiciable controversy.

The case is listed for 14 August. The Solicitor General has also given notice that the proceeding involves a matter arising under the Constitution. As s 78B of the Judiciary Act requires notification to the Attorneys-General of the Commonwealth and the States, some  may choose to join in.

So It will also take quite a while, if ever, to get to the underlying issue of access to the report prepared by consultants which the government claims was prepared for consideration by cabinet or a cabinet committee. If it was a freedom of information issue, which it isn't, the relevant exemption (s 28) turns on whether the report was prepared by or for the Minister or by an agency for the purpose of submission for consideration by the Cabinet.

NSW is the only Australian parliament that has a system for dealing with disputes concerning parliamentary orders requiring production of documents. An independent arbiter determines whether a claim for privilege has merit.  Some in federal parliament were keen to address the issue at one point but passed the opportunity in February 2010. 

In 2007 Victoria had a system of sorts (Sessional Order 21-Submission by Legislative Council: Inquiry into Independent Arbitration of Public Interest pdf) but apparently the current parliament has never got around to addressing what to do in circumstances where a minister says no, according to Mr Barber's Affidavit.

The general issue of parliament v the executive over access to documents will get an airing at a forum at the Castan Centre for Human Rights Law, Monash University on 9 August featuring Mr Barber and Clerk of the Senate Dr Rosemary Laing.