The Speaker of the ACT Legislative Assembly has called in retired Supreme Court Justice Richard Refshauge to assess Icon Water's public interest immunity claim over heavily redacted contracts governing a multi-million services deal with ActewAGL.
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Speaker Joy Burch on Friday confirmed she had referred Icon's immunity claim to Justice Refshauge to assess whether the ACT's monopoly water provider should be forced to reveal key commercial details about the deal.
Under the $27 million-a-year deal, ActewAGL provides Icon with a host of centralised services including IT support, human resources management, payroll, billing and economic advice, under an arrangement that has been in place for 12 years that is due to expire in 2023.
Opposition leader Alistair Coe has been pushing for months for the utility to reveal details of the deal, after Icon released only heavily redacted versions of the documents after Mr Coe's Freedom of Information requests and a previous motion by the Assembly last year.
Mr Coe has repeatedly raised his concerns about the deal, which was renewed without going to public tender when the ActewAGL joint venture was created - a corporation Icon, which is owned by the territory government, holds a 50 per cent stake in.
While the Assembly has no specific power to force Icon to reveal the details, in the September sittings, a government motion was passed ordering the utility to release the full documents, in a similar form to a Senate order for the production of documents.
That motion allowed Icon to claim public interest immunity from disclosing the key details, but if it did, an MLA was able to dispute it, at which point the Speaker would appoint an independent legal arbiter to assess Icon's claim.
Last week, Icon officially lodged its response, in which it again argued the details were commercial in confidence and could damage both Icon and ActewAGL's commercial position, as a public expression of interest is now underway to determine how the water utility should proceed, if it was to issue a public tender when the current contracts expire in 2023.
"Icon Water submits that public disclosure of the full terms of the services contracts would have a material effect on Icon Water's commercial interests in the marketplace, and would also have a material negative effect on the commercial interests of the ActewAGL partnerships in the marketplace," the immunity claim reads.
"The terms of the services contracts over which Icon Water claims public interest immunity includes the most commercially sensitive and confidential information in the services contracts, including the pricing (and precise scope) of services, the allocation of risk and liability, and the arrangements for transitioning out of the services contracts."
But the claim also urged the Speaker against immediately referring it to an independent legal arbiter if a Member disputed Icon's claim, instead asking that the utility be allowed to respond to the dispute before the Speaker appointed any arbiter.
After Icon Water lodged its claim for immunity, Mr Coe lodged a dispute, and despite Icon's call to allow it to respond to that, Speaker Burch on Friday appointed Justice Refshauge as independent legal arbiter.
Justice Refshauge is now assessing the full contents of the contracts - including those parts that have been redacted to date - to assess whether or not Icon's immunity claim should stand, after which a copy of his report will be sent to all MLAs Friday week.
