Page 799 - Week 02 - Thursday, 12 February 2009
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To rely on the government or the cabinet to make such a decision that manifestly affects them is simply not appropriate. A determination on the facts of the particular case is required and it is appropriate that an independent arbiter and not the government make the determination.
In this case we have created an effective and efficient mechanism for resolving such disputes. The turnaround time provided for by the standing order allows the Assembly to conduct its business in an efficient and effective manner. Balancing and evaluating what is in the public interest is a difficult task. The public interest in knowing the particular facts must be evaluated against the public interest in facilitating an effective and efficient government by allowing certain communications and information to remain in confidence.
As discussed in yesterday’s debate on the amendments to the FOI act, there are times when it is in the public interest to know. Mr Rattenbury spoke of the UK Information Commission decision in respect of the release of cabinet documents concerning the Iraq war. There are many other examples from a number of jurisdictions. The United States Supreme Court found in the case United States v Nixon that executive privilege did not prevent the publication of certain documents. The Canadian Supreme Court in Carey v Ontario considered the Nixon case and found that:
While there are important differences between the governmental structure of the United States and that of this country, the underlying values concerned are much the same. Consistent with the law in this country, the court observed that, while it would accord great deference to presidential views, the judiciary, not the President, was the final arbiter of a claim of privilege. In doing this, a court was bound to weigh the conflicting interests.
In the case the Supreme Court of Canada expressly found that the mere fact that documents were of a particular class was not sufficient to claim an absolute privilege against disclosure. The Greens very much believe that should be that case here too. It is appropriate and in the interests of our democracy to have an independent arbiter assessing the competing claims and weighing up the arguments and making an independent finding. It is in the interests of all Canberrans and the good government of the ACT that such a process exists and the Greens are proud to have been the driving force behind this initiative.
The Greens will not be supporting Mrs Dunne’s amendment. The original motion offers a sensible and reasonable mechanism for assessing claims of privilege. Our system of democracy relies on the fundamental principle of judicial review. We are governed by the rule of law. All actions of the government and the executive must be according to law. We entrust the judicial arm of government with the responsibility of determining disputes according to the law. Their independence is one of the fundamental underpinnings of our constitutional system of government and a notion that the High Court has gone to great lengths to defend.
The Greens recognise that certain privileges are in the public interest and that it is important that they be maintained. Whilst we would argue that this privilege only applies to a very limited class of documents, that does not mean that it should not be properly protected. We accept that there are documents where it is appropriate that confidentiality is maintained. It is not appropriate that those with a vested interest in
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