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Legislative Assembly for the ACT: 2009 Week 06 Hansard (Thursday, 7 May 2009) . . Page.. 2043 ..


(1) the report of the Independent Legal Arbiter appointed in relation to the call for the release of the Strategic and Functional Review of the ACT Public Sector and Services be authorised for publication; and

(2) the paper be noted.

Ordered that the question be divided.

Paragraph (1) agreed to.

MADAM DEPUTY SPEAKER: For the information of members, I present the following report:

Disputed Claim of Privilege—Review of ACT Public Sector and Services—Report of Independent Legal Arbiter, dated 7 April 2009.

The question now is that the paper be noted.

MR RATTENBURY (Molonglo) (10.23): I would like to rise this morning to take the opportunity to speak about the process of the Independent Legal Arbiter, which I think has been both a very valuable process and one which now warrants some discussion and some analysis of how the process rolled out. The functional review is a document which falls into the category of being a state paper. It should be beyond dispute that the legislature has the power to call on such papers in order to fulfil its primary responsibility of holding the executive to account. The Assembly is entrusted with the duty to secure executive accountability by questioning and challenging the competence and judgement of the government as a whole, individual ministers and even senior departmental officers.

In the case of Lange v the ABC, the High Court stated that the system of responsible government established by the Australian constitution necessarily implies a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government. With all due respect, I cannot agree with the government or the independent arbiter that the Assembly has no power to call on the functional review. There is considerable judicial authority for the proposition that the Assembly has the power to call on any and every document in the government’s possession. It is then for the government to make out a case for withholding the document if they consider that, as a matter of law, it should not be provided to the Assembly.

Unfortunately, we on the crossbenches assumed that the independent arbiter process would be an inquisitorial one and that the arbiter would make whatever investigations were necessary to satisfy himself or herself that the government’s case stood up to rigorous scrutiny and that it was a compelling one. We now realise that in the couple of days available to us after the government lodged their claim of privilege that we should have engaged legal counsel to put a strong case for the release of the report to the Assembly. As it was, the Assembly presented no case at all to the arbiter. It has

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