Clause 90.

The Hon. IAN GILFILLAN: I move:

Page 73, lines 6 to 35, page 74, lines 1 to 13—Leave out subclauses (2) and (3) and insert:

(2) A council or council committee may order that the public be excluded from attendance at so much of a meeting as is necessary to receive, discuss or consider in confidence any information or matter listed in subsection (3).

(3) The following information and matters are listed for the purposes of subsection (2):

(a)a personnel matter concerning a particular member of the staff of the council;

(b)the personal hardship of any resident or ratepayer;

(c)information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business, or prejudice the commercial position of the council;

(d)commercial information of a confidential nature that would, if disclosed—

(i)prejudice the commercial position of the person who supplied it; or

(ii)confer a commercial advantage on a third party; or

(iii)reveal a trade secret;

(e)matters affecting the security of the council, members or employees of the council, or council property;

(f)information that would, if disclosed, prejudice the maintenance of law;

(g)matters that must be considered in confidence in order to ensure that the council does not breach any law, order or direction of a court or tribunal constituted by law, any duty of confidence, or other legal obligation or duty;

(h)advice concerning litigation (or potential litigation), or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege;

(i) information that must be considered in confidence in order to provide protection to the environment;

(j) tenders for the supply of goods, the provision of services or the carrying out of works:

(k) information relating to the health or financial position of a person, or information relevant to the safety of a person;

(l) information relevant to the review of a determination of a council under the Freedom of Information Act 1991.

(3a) A council or council committee may also order that the public be excluded from attendance at so much of its meeting as is necessary to consider a motion to close another part of the meeting under subsection (2)¹.

In this case, the consideration of the motion must not include any consideration of the information or matter to be discussed in the other part of the meeting (other than consideration of whether the information or matter falls within the ambit of subsection (3)).

(3b) In considering whether an order should be made under subsection (2), it is irrelevant that discussion of a matter in public may—

(a) cause embarrassment to the council or council committee concerned, or to members or employees of the council; or

(b) cause a loss of confidence in the council or council committee.

(3c) Members of the public must be given a reasonable opportunity to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed.

It is interesting that the Government and the Democrats have come closer on this. The amendment deals with meetings to be held in public except in special circumstances and, as honourable members would know, this is a matter of great contention. The media, especially the Messenger press, often get very concerned with what they believe to be unreasonable closure of meetings. I think, generally speaking, there is this accusation, whether or not justified, that councils quite frequently take the easy option to close out the public to deal with their business. It is reasonable to acknowledge that, as a council acts as both a Cabinet and an open forum of Parliament, there will be times when it is reasonable for the public to be excluded and for the council to make its deliberations in camera.

But, it is also important for the public to be reassured that those occasions will be relatively rare and only under particular circumstances which are clearly spelled out in legislation, so that it will not be just on the whim of a council on the spur of the moment. In a way, imitation is the sincerest form of flattery. The fact that the Government has virtually adopted my amendment word for word I found gratifying, but it popped in a couple of extras which make it different and, therefore, it is important that the Committee see the surreptitious nature of the changes to the wording. I do not intend to go through it, but proposed new subclause (2) in my amendment provides:

A council or council committee may order that the public be excluded from attendance at so much of a meeting as is necessary to receive, discuss or consider in confidence any information or matter listed in subsection (3).

Proposed new subclause (3) contains a series of paragraphs such as:

(a) a personnel matter concerning a particular member of the staff. . . 

(b) the personal hardship of any resident or ratepayer;. . . 

(d) commercial information of a confidential nature. . . 

(h) advice concerning litigation. . . 

(j) tenders for the supply of goods. . . 

All of that has been recognised as being sensible and reasonable by the Government, but it has inserted its own version of proposed new paragraph (h), which provides:

legal advice or advice from a person employed or engaged by the council to provide specialist professional advice;

I would like the Committee to ponder on the phrase `specialist professional advice'. That can be extremely broad. It could be just professional plumbing advice, for example.

The Hon. T.G. Roberts interjecting:

The Hon. IAN GILFILLAN: I do not know; possibly some other plumbers. The Government's amendment also provides:

(j) information provided by public official or authority (not being an employee of the council or a person engaged by the council) with a request or direction by that public official or authority that it be treated as confidential;

Why? What public interest could be served in that? This is virtually leaving the council open to close its meeting on the request or direction of a public official or authority. Finally, proposed new paragraph (n) provides:

(n) information relating to a proposed amendment to a Development Plan under the Development Act 1993 before a Plan Amendment Report relating to the amendment is released for public consultation under that Act;

Again, I believe that to be far too broad. The argument which has been put up in support of that is the very few occasions when there is an environmental hazard, such as a control on clearing native vegetation or some measure which, if it got out that this was about to come in, would precipitate a lot of action which would frustrate the intention of the decision of the council. I point out that I do have a particular clause in mind which does cover that specifically. Proposed new paragraph (i) of my amendment provides:

information that must be considered in confidence in order to provide protection to the environment;

This deals with the only case that could be argued for proposed new paragraph (m) of the Government's amendment. The Government and the Democrats are very close in this matter but, unfortunately, the three that I have identified that the Government has slipped in will leave the council open again to the same accusation that it has used a convenient and a comfortable reason to close a meeting. For that reason, I argue that the amendments that I have just moved are more satisfactory, and they are based on what has been in the Local Government Act of New South Wales since 1997. I take the liberty of indicating that I have had some discussion with Messenger Newspapers to see what its consideration was of the matter.

The Hon. DIANA LAIDLAW: I move:

Page 73, lines 6 to 35 and page 74, lines 1 to 13—Leave out subclauses (2) and (3) and insert:

(a) a personnel matter concerning a particular member of the staff of the council;

(b) the personal hardship of any resident or ratepayer;

(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business, or prejudice the commercial position of the council;

(d) commercial information of a confidential nature that would, if disclosed—

(i) prejudice the commercial position of the person who supplied it; or

(ii) confer a commercial advantage on a third party; or

(e) matters affecting the security of the council, members or employees of the council, or council property;

(f) information that would, if disclosed, prejudice the maintenance of law;

(g) matters that must be considered in confidence in order to ensure that the council does not breach any law, order or direction of a court or tribunal constituted by law, any duty of confidence, or other legal obligation or duty;

(h) legal advice, or advice from a person employed or engaged by the council to provide specialist professional advice;

(i) information relating to actual or possible litigation involving the council or an employee of the council;

(j) information provided by a public official or authority (not being an employee of the council, or a person engaged by the council) with a request or direction by that public official or authority that it be treated as confidential;

(k) tenders for the supply of goods, the provision of services or the carrying out of works;

(l) information relating to the health or financial position of a person, or information relevant to the safety of a person;

(m) information relating to a proposed amendment to a Development Plan under the Development Act 1993 before a Plan Amendment Report relating to the amendment is released for public consultation under that Act;

(n) information relevant to the review of a determination of a council under the Freedom of Information Act 1991.

¹In this case, the consideration of the motion must not include any consideration of the information or matter to be discussed in the other part of the meeting (other than consideration of whether the information or matter falls within the ambit of subsection (3)).

(a) cause embarrassment to the council or council committee concerned, or to members or employees of the council; or

(b) cause a loss of confidence in the council or council committee.

I would like Mr Cameron to listen to me very closely on this matter. I want to explain this because the Hon. Mr Gilfillan said that the Government had been surreptitious and had sneaked in three provisions. The three provisions were inserted into the Act only two years ago, and the same three provisions are incorporated in the Bill before us. There has been nothing sneaky and nothing surreptitious, and I want to make that very clear. The Hon. Mr Gilfillan has introduced a simplified version of what is in the current Act and in the Bill, and we have accepted that simplified version in the amendments that we have introduced. However, we believe that the provisions that this Parliament passed two years ago, with the support of the LGA—a big tick, I think—are in the Bill. There is nothing surreptitious.

We are simply carrying on what we introduced as a Parliament two years ago and now have in the Bill before us. These measures have been the subject of a lot of discussion, and we have included those same points in the amendments which we have on file and which have been embraced within the simplified form of amendments that the Hon. Mr Gilfillan has introduced. I cannot explain it any better than that, and I hope that I have convinced members of the Committee.

The Hon. T.G. ROBERTS: The Labor Party will support the Government's amendments, but not on the basis that we do not like the simplified version, because I think that the simplified package was explained well and will be easy to follow by those who read the Bill. However, there are some matters in the Democrats' amendments and in the Government's amendments that leave it open for councils to close their meetings for any omnibus reason.

The real problem is that, for every reason that is written into the Bill, the first time a meeting is closed and the reason is tested and read against the Bill, there will be a reason that is not put down and prescribed, and that is where the arguments lie. It is not what is written down that worries me but rather what is not written, because the argument will continue. There will always be a provision to hang the reason on. The Government's amendments are more prescriptive than the Democrats', but I am sure that, on the Democrats' list of reasons for closing, someone somewhere will be able to hang a hat.

The Hon. T.G. CAMERON: SA First will support the Labor Party's support of the Government's position on this issue. I know from long experience how difficult the Hon. Terry Roberts is to convince on some things. If the Minister's explanation is good enough for him, it is good enough for me.

Xenophon, N. Zollo, C.

Majority of 13 for the Noes.

The Hon. Mr Gilfillan's amendment thus negatived; the Hon. Diana Laidlaw's amendment carried.

The Hon. DIANA LAIDLAW: I move:

Page 74, line—14 After `subsection (2)' insert:

or (3a)

This amendment is consequential on earlier amendments.

Amendment carried; clause as amended passed.

Progress reported; Committee to sit again.

See Ian Gilfillan's News Release on this issue:  26 July 1999

On 4 August, the House of Assembly voted to remove proposed sub-clause (3a)  which would have enabled a meeting to be closed, while Council debated whether to close the meeting.

This further change was agreed to by the Legislative Council, without discussion, on 5 August

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