CHAPTER 3
An option for reform
3.1
During the inquiry, the committee was informed that in the 1990s the New
South Wales (NSW) Legislative Council had its powers in respect of orders for papers[1]
affirmed in the courts, and that this has resulted in that House having what
the Clerk of the Senate described as 'the most effective regime for the
production of documents of any Australian jurisdiction'.[2]
This chapter examines the model used by the NSW Legislative Council to resolve
disputed claims of privilege[3]
over papers.
The NSW Legislative Council model
3.2
In his submission to the inquiry, the Clerk of the NSW Legislative
Council, Mr David Blunt, explained that, unlike the Federal Parliament where
powers are constitutionally based, the authority of the NSW Legislative Council
to order the production of papers derives from the common law principle of 'reasonable
necessity'.[4]
The Council's power to order the production of papers, including documents in
respect of which a claim of privilege could be made, was upheld by the courts
in the 1990s in the Egan decisions:[5]
...in New South Wales as a result of the Egan cases,
particularly the decision in Egan v Chadwick, the executive government
is required at law to produce to the Legislative Council all documents despite
any claim of privilege, including a claim of public interest immunity, the only
exception being certain cabinet documents. Therefore, documents that are
subject to a claim of privilege are in fact produced to the Legislative
Council. The government has no choice; it has to do that. Standing order 52...then
sets out the procedure that the house has put in place to deal with returns to
order and to deal with privilege claims.[6]
3.3
Mr Blunt emphasised that as a result of the Egan v Chadwick decision
of the Court of Appeal, the executive government in NSW is required at law to
produce papers to the Legislative Council.[7]
It is this difference which perhaps explains why the
non-compliance with orders for the production of documents common to the Senate
occurs infrequently in NSW:
Because of the requirement at law under the Egan and Chadwick
decision, the government does not really have a choice. Once the order is
agreed to by the House and communicated to the Department of Premier and
Cabinet they are lawfully obliged to produce the documents.[8]
3.4
In his submission to the committee, Mr Blunt explained that when an
order for papers has been agreed to by the NSW Legislative Council, the
Director General of the Department of Premier and Cabinet, after coordinating
the retrieval of the documents, is required to lodge:
...the return comprising the documents with the Clerk of the
Parliaments. If the House is not sitting the Clerk receives the documents out
of session and announces receipt of the return on the next sitting day.[9]
3.5
Mr Blunt identified one instance, in 2013, where the Legislative Council
became aware of a situation where there had not been full compliance with an
order for the production of papers. He explained that non-compliance in that
instance 'was treated as a matter that needed to be investigated by the
privileges committee, and it was investigated quite seriously':[10]
Following its becoming evident about 12 months ago that a
2009 order for papers may not have been fully complied with, that matter was
referred to the Legislative Council's Privileges Committee for inquiry, and
over much of last year the Privileges Committee conducted a very robust and
quite intensive inquiry to get to the bottom of exactly why, who and when
things happened to mean that that particular order was not complied with. I
think that the way in which the committee undertook that inquiry, and the two
reports that it produced as a result, have sent a very powerful signal to the
public service in New South Wales that orders for papers by the Legislative
Council are very significant and need to be fully complied with.[11]
3.6
Mr Blunt further explained that although, in the 15 years since the Egan
cases, sanctions had not been needed:
...it is now routine that non-government members give a
contingent notice of motion so that, in the event of a minister failing to
table documents in accordance with a resolution of the House, they may move for
the suspension of standing orders immediately to allow a motion to be moved
forthwith judging the minister guilty of a contempt of the House.[12]
3.7
Having explained the requirement at law for the NSW executive to comply
with orders for the production of papers, Mr Blunt outlined the process
followed by the NSW Legislative Council in circumstances where privilege was
claimed:
Where a claim of privilege is made, documents are kept in the
custody of the Clerk and are available for inspection by members only. They are
not to be copied or made public, and I can say that in 15 years there has never
been a breach of that confidentiality; there has never been a leak in relation
to a document that has been lodged subject to a claim of privilege.
If a member feels that a claim of privilege has been spread
over too many documents or is not sufficiently strong or not otherwise valid, the
member may initiate a process which leads to the appointment of an independent
legal arbiter to evaluate and report to the house on the claim of privilege. So
the role of the independent legal arbiter in the New South Wales Legislative
Council model, whilst very important, does not touch on whether the documents
will actually be produced. The documents have already been produced. Rather,
the role of the arbiter in our model is about whether or not the documents will
stay privileged or whether they will ultimately be made public.
The role of the arbiter in exercising that duty is to
consider and report to the house whether or not the claim of privilege made by
the executive government is valid and to recommend whether or not that claim
should be upheld. The report of the arbiter themselves does not change the
status of the document. It is merely a recommendation to the house. Ultimately,
it is up to the house itself to decide whether or not to act on the arbiter's
recommendation. Whilst in the overwhelming majority of instances the arbiter's
recommendations are followed and implemented, it does not always happen. It is
always up to the house; it is up to the member who has initiated the dispute to
garner majority support in the house to have the arbiter's recommendation
implemented.[13]
3.8
The procedure used by the Legislative Council in NSW has evolved over
time and was finally incorporated into its standing orders in 2004 (standing order
52).[14]
Mr Blunt stated:
Under standing order 52, orders for papers are initiated by
resolution of the House. On an order for papers being agreed to, the terms are
communicated by the Clerk to the Director General of the Department of Premier
and Cabinet, who liaises with the departments or ministerial offices named in
the resolution to coordinate the retrieval of the documents requested.
...Where a claim of privilege is made over documents, the
return must also include reasons for the claim of privilege. Documents returned...must
be accompanied by an indexed list of all documents tabled, showing the date of
creation of each document, a description of the document and the author of the
document. Where documents are subject to a claim of privilege, a separate index
of those documents is required to be provided.
Once the documents have been tabled in the House or received
out of session by the Clerk, they are deemed to have been published by
authority of the House, unless a claim of privilege has been made...Documents
over which a claim of privilege has been made are kept confidential to members
of the Legislative Council only in the Office of the Clerk and may not be
copied or published without an order of the House.[15]
When documents are produced, or returned, as we say, from the
executive government, if they are subject to a claim of privilege then the
documents themselves remain in my custody, remain confidential. The index to
those documents and the claim of privilege themselves are not privileged. So,
the index will be published on our tabled-papers database, as will the claim of
privilege. So, there is a degree of transparency there. Then, at the end of the
process, if an arbiter is appointed and they report on the matter, then, once
the report has been received, on the next sitting day the house will be advised
that there is an arbiter's report. It remains confidential, though, until a
member gives a notice of motion and moves a motion for the arbiter's report to
be tabled and made public.[16]
There is a register kept in relation to both public documents
returned to order and there is a separate register in relation to documents
subject to a claim of privilege. Any member coming to inspect those documents
signs in.[17]
3.9
Where a claim of privilege by the executive over some or all of the
documents returned is disputed by a member of the Legislative Council, the
Clerk is authorised to release the disputed document or documents 'to an
independent legal arbiter appointed by the President'.[18]
Mr Blunt informed the committee that '[t]he appointment of the arbiter has
never been a partisan matter. There has never been any disputation or disquiet
amongst members that I am aware of'.[19]
3.10
The committee sought to understand how the use of an independent arbiter
assisted with the resolution of contested claims of privilege over papers.
Mr Blunt explained:
In considering the validity of a claim of privilege, the
arbiter is not bound to merely consider whether or not a document is privileged
at law, including as declared in Egan v Chadwick, as a judge would do.
Ultimately, the arbiters evaluating claims of privilege do so in a different
manner to a judge. They do, however, do it in a way which has developed
consistently over a number of years and in a way which the house has found to
be satisfactory. Put most simply, this has involved the arbiter ultimately
weighing two competing interests: on the one hand, the public interest in
accountability and transparency of the executive government, and, on the other
hand, the interest in confidentiality for the reasons articulated by the
government in the privilege claim.[20]
3.11
The independent arbiter must present a report to the NSW Legislative
Council with a recommendation whether or not a claim of privilege should be
upheld. Mr Blunt informed the committee that in most cases the member responsible
for disputing the government's claim of privilege, will, on receipt of the
arbiter's report, move that it be tabled and made public.[21]
He further explained that in circumstances where the arbiter's report is tabled
and the arbiter has recommended that the claim of privilege be denied, a member
will usually 'give notice of a motion requiring the Clerk to lay the documents
considered not to be privileged on the table of the House and to authorise them
to be published'.[22]
If the arbiter's report upholds the claim of privilege, the papers remain restricted
to members only.[23]
3.12
Mr Blunt emphasised, however, that the independent arbiter makes a
recommendation to the House and that the House is not bound to accept the
arbiter's recommendation:
...the House, as the final arbiter on any claim of privilege, may
vote to make the documents public at any time, notwithstanding the
recommendation of the arbiter.[24]
3.13
Whilst appearing before the committee, Dr Rosemary Laing, Clerk of the
Senate, described the NSW model as 'the best system around at the moment for
adjudicating these matters':
[NSW has] chosen a system of adjudication and the council has
a process whereby if there is a claim like a public interest immunity claim
made in response to an order for production of documents, the process
nonetheless involves the documents being handed into the custody of the Clerk
and if there is a contested subset of those documents then an independent
arbiter is appointed to assess the documents in light of the claim of public
interest immunity that is made and then to provide a report.[25]
3.14
The Clerk remarked that 'it is a system that...from this distance appears
to have worked well'.[26]
3.15
The Clerk explained that the use of an independent arbiter to resolve
disputes had been considered by the Senate in the past:
We should not ignore the fact that the Senate, although not
having a systematic process for arbitration, has also used this idea in the
past. In the early 1990s, for example, in the context of a disputed claim to
information about government leasing of commercial buildings in Melbourne and
claims of commercial-in-confidence, the Senate ordered the Auditor-General to
conduct an inquiry and the Auditor-General, using his powers, did conduct an
inquiry and present a report to the Senate which appeared to be satisfactory to
the Senate at the time[27]...It
is certainly a method that has been commended by the Senate's Privileges
Committee and the Privileges Committee itself has used an independent arbiter
in certain situations. It is something that the Finance and Public
Administration Committee looked into in 2009, early 2010 but it concluded that
it was not an appropriate mechanism at that stage. The next appearance of the
idea was in the agreements for parliamentary reform in the last parliament, but
again there was no outcome from those agreements in terms of a tangible
process.[28]
3.16
The Clerk expressed the view that the NSW Legislative Council's
appointment of retired Supreme Court judges as arbiters was a 'good idea' as:
It has the safeguards of having an independent person who is
used to making those kinds of balancing determinations between competing
claims.[29]
3.17
The Clerk suggested that the NSW Legislative Council's system of
adjudication 'seems to be preferable to persisting with a stand-off between two
potentially irreconcilable claims'.[30]
3.18
Mr Blunt explained that when the system was first implemented in the NSW
Legislative Council 15 years ago, there was 'a degree of nervousness in the
parliamentary community' but that from a parliamentary perspective, 'everyone
is delighted with the result'.[31]
He further advised the committee that in the NSW Legislative Council's 2013 Privileges
Committee inquiry, that committee had an opportunity to reflect on the independent
arbitration process and its effectiveness:
...they deliberated at great length. The report that they
produced suggested four improvements, but overall the result was, I think, a
very firm endorsement of the fundamentals of the system as it operates at the
moment.[32]
Committee view
3.19
As discussed in chapter 2, the Senate has a right to information and
documents, and considerable scope to exercise this right through its inquiry
powers. The Senate's committee system is one of 'inherent flexibility'[33]
and one mechanism by which the Senate exercises its powers to obtain
information. The committee notes that in the past, the ability of committees to
take evidence in camera or receive evidence in altered form has been
used to 'pursue the sought-after information'.[34]
On this occasion, however, this committee has been unable to garner further
information from the government relevant to documents ordered on 14 November
and 3 December 2013 and subject to a contested claim of public interest
immunity (see chapter 2).
3.20
This committee's experience is symptomatic of an entrenched and ongoing
challenge facing the Senate in obtaining information and documents which the
executive does not wish to disclose. As noted in chapter 2, there may be valid
reasons why certain information should not be publicly released and the
committee is sensitive to such claims for public interest immunity where they
are made on valid grounds. However, there may also be occasions where a
government does not wish to release information on account of it being
politically embarrassing or of contestable legality. Withholding such
information does not accord with principles of good governance, and prevents
the Senate from fulfilling its scrutiny and accountability functions.
3.21
The committee takes the view that this inquiry has clearly demonstrated
the shortcomings in the Senate's current procedures for obtaining documents
subject to a contested claim of public interest immunity and subsequently
resolving those disputed claims.
3.22
To date, the Senate has not developed procedures or criteria for
determining whether a claim for public interest immunity should be granted. The
committee believes that the status quo is unsatisfactory and will only ensure
that the Senate continues to be frustrated by such disputed claims into the
future. In addition to the requirements outlined in the Senate's resolution of
13 May 2009, a clear process is needed to resolve disputed claims of public
interest immunity.
3.23
The committee sees merit in the independent arbitration model used by
the NSW Legislative Council and acknowledges the high regard in which this
process is held. In the committee's view, such a process, or some version of
it, may well be adapted to the Senate. Indeed, the committee is aware that the
Committee of Privileges has previously supported a process for independent
arbitration.[35]
3.24
The committee therefore proposes that the Senate Procedure Committee
consider in detail:
-
the process for independent arbitration in the NSW Legislative
Council, including that House's standing order 52;
-
the applicability of the NSW Legislative Council's model of
independent arbitration to the Senate;
-
any adaptations or amendments needed to the NSW Legislative
Council's model in order to implement a similar model of independent
arbitration in the Senate;
-
any amendments to Senate practice and procedure required to
implement a model of independent arbitration; and
-
suitable candidates for and / or qualifications required of an
independent arbiter.
3.25
One of the strengths of the NSW Legislative Council model is the legal requirement
of the executive to provide documents to that House, as a result of the Egan
decisions. This differs from the situation that is the subject of this inquiry,
where the dispute comprises both a failure to fully comply with orders for the
production of documents and a related claim of public interest immunity. It is
clear to the committee that without the ability to inspect documents, it is
impossible to conduct any meaningful process of determining whether a claim of
public interest immunity over them is valid.
3.26
Given federal governments have a persistent record of non-compliance
with Senate orders for the production of documents where these are considered
sensitive in nature, the committee considers it unlikely that agreement could
be reached allowing such documents to be provided in a way that enables
senators to inspect them, as is the case in the NSW Legislative Council. For
this reason, the committee draws attention to the proposal in the 52nd
Report of the Committee of Privileges that disputed documents are provided
directly to an independent arbiter for evaluation. The committee suggests that
the Procedure Committee, in respect of accessing and inspecting documents
subject to a disputed claim for public interest immunity, has particular regard
to this proposal in the 52nd Report of the Committee of Privileges.
Recommendation 2
3.27
The committee recommends that the Senate refer the following matter to
the Procedure Committee for inquiry and report, as a matter of urgency:
-
the process for independent arbitration in the NSW Legislative
Council, including that House's standing order 52;
-
the applicability of the NSW Legislative Council's model of
independent arbitration to the Senate;
-
any adaptations or amendments needed to the NSW Legislative
Council's model in order to implement a similar model of independent
arbitration in the Senate;
-
any amendments to Senate practice and procedure required to
implement a model of independent arbitration;
-
suitable candidates for and / or qualifications required of an
independent arbiter;
-
in respect of accessing and inspecting documents subject to a
disputed claim for public interest immunity, the proposal in the 52nd Report of
the Committee of Privileges whereby disputed documents are provided directly to
an independent arbiter for evaluation; and
in respect of any
such inquiry, the Procedure Committee have power to send for persons and
documents, to move from place to place, and to meet and transact business in
public or private session.
Senator
Penny Wright
Chair
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