Chapter 19 - Relations with the executive government

Claims by the executive of public interest immunity

The Senate has the power to require the giving of evidence and the production of documents. (See Chapter 2, Parliamentary Privilege and Chapter 17, Witnesses.) The executive government and ministers are frequently the subjects of the exercise of this power. On 16 July 1975 the Senate resolved:

  1. That the Senate affirms that it possesses the powers and privileges of the House of Commons as conferred by Section 49 of the Constitution and has the power to summon persons to answer questions and produce documents, files and papers.

  2. That, subject to the determination of all just and proper claims of privilege which may be made by persons summoned, it is the obligation of all such persons to answer questions and produce documents.

  3. That the fact that a person summoned is an officer of the Public Service, or that a question related to his departmental duties, or that a file is a departmental one does not, of itself, excuse or preclude an officer from answering the question or from producing the file or part of a file.

  4. That, upon a claim of privilege based on an established ground being made to any question or to the production of any documents, the Senate shall consider and determine each such claim. (16/7/1975, J.831)

While the Senate undoubtedly possesses this power, it is acknowledged that there is some information held by government which ought not to be disclosed. This principle is the basis of a postulated immunity from disclosure which was formerly known as crown privilege or executive privilege and is now usually known as public interest immunity. While the Senate has not conceded that claims of public interest immunity by the executive are anything more than claims, and not established prerogatives, it has usually not sought to enforce demands for evidence or documents against a ministerial refusal to provide them but has adopted other remedies.

In 1976 the Royal Commission on Australian Government Administration observed that:

Neither House of the Commonwealth Parliament has yet formally determined whether it accepts or does not accept that its investigatory authority is legally constrained by Crown privilege. It is apparent that they are at least prepared to entertain claims, and in some situations not to insist on answers being supplied, but this does not necessarily signify acquiescence in any limitation on the legal powers of the Houses. (Report of the Royal Commission on Australian Government Administration, 1976, PP 185/1976, p. 115.)

The Senate’s acknowledgment that a claim to public interest immunity may be advanced is implied in the words “subject to the determination of all just and proper claims of privilege” and “a claim of privilege based on an established ground” in paragraphs (2) and (4) of the resolution of 16 July 1975 quoted above.

The Senate’s resolutions on parliamentary privilege of 25 February 1988 (see Chapter 2, Parliamentary Privilege and Chapter 17, Witnesses), in providing that witnesses may raise objections to the giving of evidence (Resolution 1, paragraph (10)), implicitly acknowledge the right to make claims for public interest immunity.

Paragraph (4) of the resolution of 16 July 1975 makes it clear that while the Senate may permit claims for public interest immunity to be advanced it reserves the right to determine whether any particular claim will be accepted.

The existence of the claimed right of public interest immunity in respect of parliamentary proceedings has not been adjudicated by the courts and is not likely to be. Several Senate committees have considered the question but have not developed agreed procedures or criteria for determining whether a claim for public interest immunity should be granted. A common thread emerging from the deliberations of those committees is that the question is a political, and not a legal or procedural, one. There appears to be a consensus that the struggle between the two principles involved, the executive’s claim for confidentiality and the Parliament’s right to know, must be resolved politically. In practice this means that whether, in any particular case, a government will release information which it would rather keep confidential depends on its political judgment as to whether disclosure of the information will be politically more damaging than not disclosing it, the latter course perhaps involving difficulty in the Senate or public disapprobation.

(See Supplement)

A paper entitled Grounds for Public Interest Immunity Claims, listing potentially acceptable and unacceptable grounds for claims of public interest immunity, based on cases in the Senate (many of which are set out below), was circulated to senators during the May 2005 estimates hearings, and was published by the Employment, Workplace Relations and Education Legislation Committee. The paper indicated that the following grounds had attracted some measure of acceptance in the Senate, subject to the circumstances of particular cases and without acceptance of distorted or exaggerated versions of the grounds:

  • prejudice to legal proceedings

  • prejudice to law enforcement investigations

  • damage to commercial interests

  • unreasonable invasion of privacy

  • disclosure of Executive Council or cabinet deliberations

  • prejudice to national security or defence

  • prejudice to Australia's international relations

  • prejudice to relations between the Commonwealth and the states.

The paper listed the following grounds not accepted by the Senate:

  • a freedom of information request has been or could be refused

  • legal professional privilege

  • advice to government

  • secrecy provisions in statutes

  • working documents

  • “confusing the public debate” and “prejudicing policy consideration”.

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