Page 791 - Week 02 - Thursday, 12 February 2009
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forward a proposed new temporary standing order 213A. And this is the troublesome area. The Liberal opposition takes it as read that there will be a new temporary standing order 213A and our job is to make it as good as it possibly can be.
So I was alarmed this morning when I really had time to attend to the matter to note what the attorney said back on 10 December about this mechanism. Remember that on 10 December the Liberal opposition tried to obtain the tabling of the functional review, the Costello report. The attorney spoke at length about why we should not do it then; we should wait for this process and use this process. He spoke at great length about how this was a good system and he extolled the virtues of the model for this system, which is the model in the New South Wales upper house. He said:
I think it is probably worth outlining to members how that mechanism would work. In general, the mechanism in the New South Wales upper house provides for a member who calls for documents to move a motion which, if adopted, calls for the production of certain documents. The executive … has two choices: one is to simply provide the documents and say, “There is no dispute … ” or, alternatively, to say, “No, we believe these documents are protected documents …”
In those instances, the documents themselves still need to be made available to the Clerk, in that case, of the New South Wales upper house. The documents then are held by the Clerk. They can be viewed by any member of the New South Wales upper house but they cannot be copied or published; and a dispute as to whether or not they should be published and made more broadly available, publicly available, is referred to an independent arbiter appointed by the presiding officer of the upper house.
He goes on to say what sort of person that is. He said:
Remember: those documents will have been made available to members; they are able to be viewed; so members can make their own judgement as to whether or not the documents attract a claim of executive privilege or executive immunity. Members will have available to them the report of the independent arbiter on the government’s claim in that regard.
The minister went on to say:
I think that is a good process. It will be a process that, I am sure, in some instances in the future, will make this government uncomfortable …
The minister went on to say why this is a good process. So imagine my surprise when I looked at the motion on the notice paper and found that the crucial part of this, the bit that says, “If the document is disputed, the document is lodged with the Clerk and members may observe the document; they cannot publish it; they cannot talk about it; but they can see the document; and they can make their own judgements about the document,” was not there.
Imagine further my surprise when the attorney, the manager of government business, stood up in this place and spoke to his proposed new standing order, saying to us that that is what his new standing order would do, when it was not the case. I can see the Clerk looking surprised because the Clerk had briefed me, given me his views, this morning on how this would apply.
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