http://www.smh.com.au/business/erg-disputes-tcard-sensitivity-201...

http://www.smh.com.au/business/erg-disputes-tcard-sensitivity-20101214-18wue.html?skin=text-only


Date: December 15 2010


Elisabeth Sexton


THE NSW government was attempting to ''elevate'' cabinet discussions about a commercial contract to ''matters of high financial sensitivity'' to justify withholding documents in a court dispute, the company behind Sydney's abandoned transport smartcard told the NSW Court of Appeal yesterday.

The barrister for the former listed technology company ERG Ltd, Wayne Muddle, SC, read to the court from a 1995 decision by Justice Susan Kiefel, then of the Federal Court, about a claim for public interest immunity over cabinet documents by the Queensland government in a property development dispute.

Justice Kiefel said evidence produced by the government ''attempts to elevate discussions and considerations as to the use of some land, and having a commercial element, to matters of high financial sensitivity but provides no basis for such a conclusion''.

Yesterday Mr Muddle said this was ''a particularly apt description of what's happening in this case''.

The $300 million dispute over the termination of the so-called T-card contract did not involve any current controversy, nor did it relate to ''high policy'', he said.

The government's barrister, Richard Lancaster, SC, said secrecy was warranted because ''the protection of cabinet decisions is based on the principle that members of cabinet don't need to be, and should not be, put in a position where they effectively look over their shoulders on commercial decisions ? that might be raked over in legal proceedings down the track''.

The law on public interest immunity safeguarded ''frank and free exchange'' both in cabinet discussions and in advice to individual ministers, Mr Lancaster said.

ERG won most of the first round of the debate over cabinet secrecy in June when Justice Clifford Einstein granted access to most, but not all, government documents. He said that only documents marked ''Cabinet-in-Confidence'' could be withheld.

Yesterday Justices James Allsop, David Hodgson and Ronald Sackville reserved their decision on the government's appeal.

The main case is expected to be heard over three months next year.



This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited.