Monday, 17 September 2018
Great Barrier Reef Foundation
(1) That the Senate notes that:
(a) on 21 August 2018, the Senate agreed to an order for the production of documents directed at the Minister representing the Minister for the Environment and Energy for documents relating to the grant of $444 million to the Great Barrier Reef Foundation (the Foundation), including documents demonstrating due diligence was carried out on the Foundation;
(b) on 10 September 2018, the duty minister tabled the index to a due diligence report prepared by the Australian Government Solicitor but did not table the body of the report, making a public interest immunity claim of legal professional privilege;
(c) to the extent that the report fulfils a due diligence task, it cannot be characterised as legal advice and, therefore, cannot attract the privilege – it is noted the document comprised largely information that is available online free of charge or for a nominal fee, such as company details, insolvency notice search results, media searches, ASIC personal name search results, and AUSTLII case searches;
(d) the Senate does not accept legal professional privilege as a basis for a claim of public interest immunity unless it is established that there is some particular harm to be apprehended by the disclosure of the information;
(e) in Egan v Chadwick, Chief Justice Spigelman held that "in performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act...access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision. In my opinion, access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions"; and
(f) as a country that upholds the rule of law, the Government must not rely on conventions, no matter how longstanding, that are contrary to established principles in law.
(2) That the Senate does not accept the public interest immunity claim made by the then Minister representing the Minister for the Environment and Energy (Senator Birmingham) in relation to the due diligence report prepared by the Australian Government Solicitor, and requires the Minister representing the Minister for the Environment to table the due diligence report, in accordance with the order for the production of documents agreed to by the Senate on 21 August 2018, with any appropriate redactions where there is some particular harm to be apprehended, accompanied by a properly made out claim for public interest immunity identifying the harm.
The due diligence report constitutes legal advice. The government did not claim public interest immunity on the basis of legal professional privilege, but on that basis there is public interest in the government's legal advice remaining confidential. This is based on the longstanding practice of successive Australian governments. There is a significant public interest in government having access to confidential legal advice for the purposes of policy development and decision-making. The government sees no reason to depart from this principle in this case.