Since May 2019 the Legislative Council has made 26 orders for government documents. That’s a lot of orders in such a short period of time. With this high volume of orders, disputes about claims of privilege will likely arise. But what does this all mean??
Orders for papers explained:
The Legislative Council has the power to order documents held by the government. This is commonly referred to as an ‘order for papers’ and gives the Council the ability to carry out its function of scrutinising the government and holding it to account.
The Legislative Council has received papers relating to a broad range of issues including the construction of the Cross City and Lane Cove Tunnels, greyhound racing, refurbishment of Sydney Stadiums and relocation of the Powerhouse Museum.
Many documents returned are public and can be viewed by anyone with an interest.
In providing documents, the government can claim that certain papers are “privileged” and should remain confidential. Only Legislative Council members may read privileged papers, but they are not allowed to talk about their contents except to other Legislative Council members. However, members can challenge this claim of confidentiality to ensure documents make it to the public domain. The process for ordering documents and disputing claims of privilege is set out in the rules of the Council.
What is a privileged document?
There are various reasons why a claim of privilege might be made over certain documents. For example, because they reveal important commercially sensitive information, or they contain communications between legal practitioners and their clients, or private information about individuals.
What happens when a member disputes the government claim of privilege?
An Independent Legal Arbiter is appointed by the President to evaluate the validity of such claims. The arbiter must be either a retired Supreme Court Judge, Queen’s Counsel or Senior Counsel.
The documents are released to the arbiter who recommends in a report whether the government’s claim of privilege should be upheld.
The Clerk informs the House once the arbiter’s report has been received. However this report remains confidential and cannot be published or copied without the agreement of the House.
Members consider the arbiter’s report and decide whether or not to publish it, as well as the disputed documents.
Current session of Parliament
The House has already considered two disputes this Parliament: one relating to a 2014 order for papers; the other, an ongoing dispute.
VIP Gaming Management Agreement: This order for papers is almost five years old. It is the second time the VIP Gaming Management Agreement relating to the Barangaroo Crown Casino has been disputed, with another portion of the document made public in 2014 following a recommendation by the arbiter Mr Keith Mason AC QC. In 2019, Independent member Justin Field disputed a claim of privilege over Schedule 2 of the agreement. The arbiter considered that the schedule should be made public with the House resolving to publish it on Thursday 8 August.
Landcom: In late August the Leader of the Opposition, Adam Searle, disputed a claim of privilege over certain documents returned as part of an order for papers relating to the statutory authority, Landcom. Mr Keith Mason AC QC has again been appointed Independent Legal Arbiter to evaluate and report on the validity of the claim of privilege. The documents have been released to Mr Mason. Stay tuned for further updates.