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Legislative Assembly for the ACT: 2003 Week 7 Hansard (26 June) . . Page.. 2618 ..



agreement relating to any potential briefings that they had received about legal matters in this place. I commend my amendment to members.


(Leader of the Opposition) (6.05): When Mr Corbell raised this issue concerning the signing of confidentiality agreements I asked the clerks if they could advise me whether there was a precedent for it or an inherent danger in it. For the information of members I do not believe that any members of the Liberal Party have agreed to the letter that was written earlier this year by the Chief Minister seeking their concurrence to the signing of confidentiality agreements, because it would limit what they as members of the Legislative Assembly do in the public interest. That is a dangerous precedent.

I wish to read from a document that has been provided to me by the clerks. The document, which is in the form of verbal advice from Mr Evans, Clerk of the Senate, states:

I am advised that Senate practice is to receive all documents presented by Ministers in public. Where Ministers wish to impose conditions on the provision of documents to Senators, e.g. that they be provided on a confidential basis, that is arranged between the Minister and Senators outside the auspices of the Senate.

The Clerk was not aware of any precedent for a legislative chamber receiving documents on condition that members could only view those documents after first signing a confidentiality agreement of some sort.

Mr Evans also directed my attention to the practice of the NSW Legislative Council, where an independent adjudicator may review documents for which a claim of confidentiality has been made, and if he supports that claim, provide them to members on a confidential basis. I understand the acting clerk is following this up with the Clerk of the Council.

As a general comment, I would counsel against entering into any written agreements or even giving oral undertakings not to reveal the contents of a document received by the Assembly under any circumstances. It bolsters what I would consider to be a bad practice in the Assembly-receiving documents in confidence. It also defeats the logic of providing the document. If the content of a document reveals information that there is a clear public interest in publishing then members should retain the right to do so.

Specifically with regard to legal professional privilege, note that the NSW court of Appeal, in Egan v Chadwick and others (1999) held that the "... [Legislative] Council's power extended to the production of documents (Cabinet document accepted) to which claims of legal professional privilege and public interest immunity could be made."

If the only way of getting access to the documents is to receive them in confidence then the motion before the Assembly could be amended to insert, in Ms Tucker's amendment, after "... members only", the words "... on a confidential basis".

I do not believe that is the way we should be going about this matter. Members might seek advice, or direct a minister to give them advice, and that advice might be provided on a confidential basis, after receipt of a signature, from the safe of the clerk of the house. What, then, if we find something in that information that is in the public interest?

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