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Friday, November 14, 2014

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:

Commercial in confidence
"In his report, Mr Mason did not accept commercial confidentiality as a valid basis for a claim of privilege, at least in this instance. Mr Mason also more generally indicated that ‘[b]y itself, “commercial-in-confidence” does not establish a relevant privilege....

Quoting from a ruling by former arbiter the late Sir Laurence Street:
"It is not open to an administrative public authority to shield documents from Parliamentary disclosure merely by inserting a commercial in confidence clause in them. In every such case the House will assess for itself ... whether it is in the public interest that the documents be disclosed."

"..the committee does not believe that commercial confidentiality supports non-disclosure of potentially sensitive but nevertheless settled matters. While not ruling out other successful claims of commercial confidentiality, the committee notes that in the past, claims of commercial sensitivity have been more likely to succeed where the information would directly affect current contractual negotiations being undertaken by the government."

Statutory secrecy no bar to parliament

"Mr Mason rejected statutory secrecy, and specifically section 17 of the Gaming and Liquor Administration Act 2007......the law of parliamentary privilege is not affected by a statutory provision unless the provision alters that law by express words.... statutory secrecy provisions have no application to the conduct of committee inquiries, despite assertions from time to time by Governments to the contrary."

Public interest immunity

"In its ‘Submission in support of claim for privilege by the Department of Premier and Cabinet’, DPC stated that:... the redacted clauses from the Agreement are privileged and should not be made public on the grounds of public interest immunity because the public interest in their disclosure is outweighed by a competing public interest in their suppression.

DPC further elucidated this claim of public interest immunity by citing concerns that the release of information obtained confidentially by a New South Wales regulatory agency may prejudice the regime for sharing of intelligence amongst regulators, may prejudice third parties from cooperating with such regulators in the future, could inappropriately and unfairly lead to adverse public imputation against particular third parties, and could ‘prejudice current or future contractual or other relationships between Government and the private sector’.

2.21 In his report, Mr Mason did not accept these propositions, at least in the general form in which they were put. He observed: "In any public interest calculus one needs to address and weigh the reasons said to indicate a risk of harm to the public interest, before addressing and weighing the factors supporting openness. I fail to detect any legitimate basis for suppressing the existence and broad subject-matter of these clauses and of the two Schedules. Nor do I understand how it could be  in the interest of good government in New South Wales for there to be suppression of the fact that these matters have been addressed in the Agreement at the behest of the Authority and with the approval of the Minister. [Emphasis added].

On the matter of public interest immunity, as noted, the committee is not in a position to cite
in detail arguments raised in submissions to this inquiry. However, as a general observation,
the committee notes that issues of corruption and crime prevention are ongoing issues for all jurisdictions worldwide that host casinos. Protecting the integrity of casino operations is the role of casino regulators, in both Australia and elsewhere. As such, there is a public interest in knowing that casinos are regulated effectively, and that in this particular instance, the Independent Liquor and Gaming Authority is essentially doing its job.
[Emphasis added].

2.43 The committee accepts that meaningful parliamentary debate on this matter would be enhanced if the terms of Schedule 1 in particular were in the public domain. The release of such information may reassure the Parliament and the public that the Independent Liquor and Gaming Authority is discharging its responsibilities as it is required to do. [Emphasis added].

2.44 Arguments speculating that in the future third parties will be unwilling to share information with regulators and the government are not persuasive, as parties unwilling to provide such information to regulators and the government in the future will necessarily exclude themselves from such future contractual arrangements."
[Emphasis added].

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