Chapter 19 - Relations with the executive government

The Senate and public interest immunity: early cases

In the face of executive claims of public interest immunity the Senate has not conceded its right ultimately to determine such claims. On the other hand the Senate has usually not taken steps to enforce production of documents for which the executive has claimed immunity, other than exacting a political penalty. In some cases procedural penalties have been imposed and alternative methods of obtaining the required information, such as committee hearings, have been pursued.

In 1951 the government directed certain senior military officers and public servants not to appear before a Senate select committee inquiring into defence recruitment and comprising three opposition members. One official, however, did choose to attend and gave evidence. The committee reported that it took “a very grave view of the action of the Cabinet in flouting Parliamentary authority” and that “such action by the Cabinet is an interference with the freedom of prospective witnesses, and can only be construed as calculated to defeat, hamper and obstruct the purpose of the committee”. Both Houses were dissolved before debate on the report was concluded. (Reports of the Select Committee on National Service in the Defence Force (PP S.2 and S.3 of 1950-51).)

On 19 November 1953 the Prime Minister wrote to the Joint Committee of Public Accounts concerning evidence relating to security issues and claims for public interest immunity. He stated, inter alia:

The first thing to note about this is that it is not the privilege of the witness but of the Crown. If a witness attends to give evidence on any matter in which it appears that State secrets may be concerned, he should endeavour to obtain instructions from his Minister beforehand as to the questions, if any, which he should not answer. If a question arises unexpectedly in the course of an inquiry, the witness should request a postponement of the taking of his evidence to enable him to obtain the instructions of his Minister through his Permanent Head, and doubtless this postponement would be granted. In either event, if the Minister decides to claim privilege, he should furnish the witness with a certificate to that effect. It is possible that in some instances contractors to the Commonwealth might be asked questions on confidential matters. A similar course could be followed in these cases also, except that the witness should look for his instructions to the Permanent Head of the Department responsible for the particular contract.

Where a witness, particularly a witness who is not an officer of the Commonwealth or is a comparatively junior officer, does not raise any question of privilege although the matter obviously concerns State secrets, it is, in my opinion, the duty of the Chairman of the Committee himself to stop the evidence being given until the Minister has been given an opportunity to consider whether privilege should be claimed or whether a request should be made that the evidence be heard in private. Moreover, if a witness were to supply to the Committee a certificate from the appropriate Minister to the effect that he regarded it as being injurious to the public interest to divulge information concerning particular matters, the Committee should accept the certificate and not continue further to question a witness on these matters.

On 14 September 1956 the Solicitor-General gave the following advice concerning public interest immunity in a letter to the Regulations and Ordinances Committee:

The privilege claimed is, in fact, not the privilege of the witness but that of the Crown. Nowadays, however, the claim is made by the witness himself, and supported by the submission of a sworn statement from the responsible Minister, or, if the Minister is not available, the Permanent Head. A sworn statement of this kind, to the effect that the giving of the evidence concerned would, in the opinion of the Minister, be prejudicial to the public interest, is in practice accepted as conclusive by the civil courts [but see above]; and I conceive a similar rule would, and should, apply in a Standing Committee. . . .

The Lord Chancellor made an important announcement in the House of Lords on 6 June 1956, regarding the practice proposed to be followed by the British Government in making claims of privilege. The Lord Chancellor said that the law enabled privilege to be claimed by the Crown on alternative grounds, namely:

  1. when the production of the contents of the particular document would injure the public interest; and

  2. when, although there might be nothing in the contents of the particular document the production of which would injure the public interest, the document fell into a class which the public interest required to be withheld from production.

The latter grounds he called “class grounds” and the reasons for claiming privilege in these cases were given in the following instructive extracts:

The reason why the law sanctions the claiming of Crown privilege on the “class” ground is the need to secure freedom and candour of communication with and within the public service, so that Government decisions can be taken on the best advice and with the fullest information. In order to secure this it is necessary that the class of documents to which privilege applies should be clearly settled, so that the person giving advice or information should know that he is doing so in confidence. Any system whereby a document falling within the class might, as a result of a later decision, be required to be produced in evidence, would destroy that confidence and undermine the whole basis of “class” privilege, because there would be no certainty at the time of writing that the document would not be disclosed.

I come now to the category of departmental and inter‑departmental minutes and memoranda containing advice and comment, and recording decisions — the documents by which the administrative machine thinks and works. Here we consider that Crown privilege must be maintained. An important type of case in which documents of this kind may be relevant is where the vires or legality of a Minister’s decision is challenged and the plaintiff may seek to show that the Minister proceeded on wrong principles. In such a case, it is right that a Minister should be prepared to defend his decision, but if it became possible to challenge Government action, by reference to the opinions expressed by individual civil servants in the necessary process of discussion and advice prior to decision, the efficiency of Government administration would be gravely prejudiced.

It is clear that the government’s views prior to 1968 were heavily influenced by the approach taken by the courts to public interest immunity, particularly in the assertion that some documents should be immune from production simply by belonging to a class of documents.

The Royal Commission on Australian Government Administration (1976) noted that although the letters from the Prime Minister and the Solicitor-General cited above had not been formally endorsed by Parliament “they appear to have been used as guidelines” (Report, PP 185/1976, p. 115). The Royal Commission suggested that the government should:

prepare for the guidance of officials and for discussion, a statement of the principles and procedures it would wish to be followed when evidence from official witnesses is sought, and a set of instructions for the guidance of officials whose attendance before parliamentary committees might be requested or required. (p. 115)

The government’s response to this suggestion is dealt with below.

In June 1969 the Senate Select Committee on the Canberra Abattoir (comprising three Labor opposition senators) was advised by the Treasurer that he had directed the Treasury that it should not respond to questions that called for an expression of opinion on government decisions in relation to the abattoir, nor provide confidential information on the issue that had not been released by the Government to the public. In its report (PP 99/1969), the committee said that it did not disagree with the first qualification. However, in relation to the second restriction, the committee advised the Treasurer that it reserved its position. The committee indicated that, should any circumstance arise where a Treasury or other official witness refused information which the committee considered necessary for the purposes of its inquiry, and which did not appear to be contrary to the public interest to disclose, in either closed or open session, the committee would seek to arrange to discuss the matter with the appropriate minister. The only refusal to supply information reported by the committee concerned a report furnished to the government by an inter‑departmental committee on the future of the Canberra abattoir. The Minister for Health informed the committee that the report was prepared at the request of cabinet by senior officials for the purpose of assisting ministers in the formulation of government policy. He believed that to be an area in which the confidentiality of advice should be preserved.

In 1972 the Attorney-General, Senator Greenwood, and the Solicitor-General, Mr R.J. Ellicott, prepared a paper entitled Parliamentary Committees: Powers Over and Protection Afforded to Witnesses (PP 168/1972) which outlined the Government’s views on public interest immunity. The paper was tabled in the Senate (26/10/1972, J.1206) but as there was no move to have the Senate endorse it the document remained merely a statement of the executive’s views on this topic. The paper included the following observations:

Because the power of Parliament to require the production of documents and the giving of evidence is, for practical purposes, unlimited, the extent to which a House requires the giving or production of executive information will necessarily rest on convention. Clearly enough, there could be no justification for Parliament requiring an unlimited disclosure of information by the executive, even in camera. (p. 38)

... against the background of a system which is based on party Government and the responsibility of Ministers to Parliament, we think the preferable course is to continue the practice of treating the Minister’s certificate as conclusive. If a House thought that a minister was improperly exercising his power to grant a certificate it, could, of course, withdraw its confidence in him.

. . .

If, as we recommend, the matter remains with a Minister the decision he makes should, of course, be related to the two aspects of public interest involved, that is to say, the public interest in withholding certain information and the public interest in Parliament and its Houses being adequately informed in order to perform their legislative and advisory functions ... (p. 39)

The paper drew some support from the provision now in standing order 168(1) whereby a minister may resist a motion for the tabling of a document quoted by the minister on grounds of confidentiality. This provision, however, does not constitute a concession by the Senate to executive privilege, as it relates only to the particular circumstance of a motion moved without notice during debate in relation to a quoted document. The provision in the Senate’s procedures for orders for the production of documents, standing order 164, does not allow for such a ministerial claim (see also Chapter 18, Documents).

In 1973 a question arose as to the attendance of members of the Australian Security Intelligence Organisation (ASIO) as witnesses before the Senate Select Committee on Civil Rights of Migrant Australians. The government agreed to the giving of evidence by the Director‑General of ASIO but not to the committee’s request that the Director‑General be accompanied by other officers of ASIO. The committee was advised that, taking into account the provisions of the Australian Security Intelligence Organisation Act, and the previous rulings of prime ministers, the Director‑General would not be accompanied by any other ASIO officer, and that the Director‑General would observe the practice that questions seeking information, whether positive or negative, as to the affairs of the Organisation would not be answered. The Director‑General attended the committee and gave evidence, but the committee did not pursue its request for the attendance of other officers of ASIO.

Public interest immunity was claimed by the Prime Minister, Mr Whitlam, and certain ministers in 1975 in connection with the summoning of public servants to the bar of the Senate to answer questions and produce documents relating to the government’s overseas loan negotiations. Formal summonses were served on the witnesses to appear before the Senate on 15 July 1975. When the Senate met on 15 July 1975, President O’Byrne reported that he had received a letter from the Prime Minister in which he stated:

I wish to inform you, however, that each officer will be instructed by his Minister to claim privilege in respect of answers to all questions upon the matters contained in the Resolution of the Senate and in respect of the production of all documents, files and papers relevant to those matters.

The three ministers involved, the Minister for Minerals and Energy, the Treasurer, and the Attorney‑General, wrote letters to the President of the Senate which stated:

In accordance with long‑established principles, I have directed officers of my Department who have been summoned to appear before the Senate to claim privilege in respect of answers to all questions upon the matters contained in the Resolution of the Senate and in respect of the production of all documents, files and papers relevant to those matters.

I certify that the answering of any questions upon the matters contained in the Resolution of the Senate and the production of any documents, files or papers relevant to those matters by officers of my Department would be detrimental to the proper functioning of the Public Service and its relationship to government and would be injurious to the public interest.

The Solicitor‑General (Mr Byers), who was among those summoned, wrote to the President claiming public interest immunity:

The Crown has claimed its privilege. As one of its Law Officers, I may not consistently with my constitutional duty intentionally act in opposition to its claim.

For the full text of the letters see SD, 15/7/1975, pp 2729-30.

On the following day, 16 July, the Senate responded to these claims for immunity with a resolution which affirmed that it had the power to require persons to answer questions and produce documents and that if privilege was claimed the matter was to be determined by the Senate. The text of the substantive part of the resolution is quoted above.

On 16 July, the three ministers wrote again to the President advising that they had further instructed their officers as follows:

In case there should be any misunderstanding of the position that I have directed you to take as a witness before the Senate, I direct that, if the Senate rejects the general claim of privilege made by you, you are to decline to answer any questions addressed to you upon the matters contained in the Resolution of the Senate and to decline to produce any documents, files or papers relevant to those matters.

For the full text of the letter see SD, 16/7/1975, p. 2762.

On 16 July the witnesses were, in turn, called before the Senate, when on ministerial direction they declined to answer questions, other than of a formal nature. The Solicitor‑General responded to questions relating to his reasons for declining to answer questions concerning the matters under inquiry by the Senate. The witnesses were discharged from further attendance on Thursday, 17 July 1975. The Senate then resolved, on the motion of the Leader of the Opposition (Senator Withers), to refer the matter to the Committee of Privileges (17/7/1975, J.836-7).

The Privileges Committee presented its report (PP 215/1975) on 7 October 1975. The committee divided on party lines. The four government members of the committee were of the opinion that the ministerial directions were valid and lawful. In a dissenting report, the three opposition members of the committee reported that a minister’s certificate of privilege for evidence, oral or documentary, sought from public servants has evidentiary value but is not conclusive; they found that the ultimate decision as to whether a question must be answered or a document produced is for the Senate and not for the executive. On 17 February 1977, Senator R.C. Wright moved that the Senate endorse the opinions expressed in certain paragraphs of the dissenting report, but the motion lapsed on prorogation (SD, 17/2/1977, p. 175-9).

As mentioned above, the report of the Royal Commission on Australian Government Administration recommended that the government develop a set of guidelines concerning the giving of evidence by public servants to parliamentary committees. On 28 September 1978 the government tabled a paper ‘Proposed guidelines for official witnesses appearing before Parliamentary committees’. Revised versions of the guidelines were tabled in 1984 and 1989. The guidelines list the categories of information which could form the basis of a claim of public interest immunity (many of these are similar to the exemptions under the Freedom of Information Act) and specify that such claims should be made only by ministers. The guidelines remain a statement of the executive’s views on this topic and have not been endorsed by either House. For texts of the guidelines, see SD, 23/8/1984, pp 309-14; SD, 30/11/1989, pp 3693-702.

On 22 November 1978 President Laucke made a statement in response to a question from Senator Tate concerning any impact the judgment of the High Court in the Case of Sankey v Whitlam and others (see above) might have on the procedures of the Senate and its committees. The President stated that:

the questions involve matters which are ultimately for the Senate to decide in the regulation of its own proceedings. I go no further than to express the view that the Senate would no doubt take the recent High Court judgment into consideration in reaching any decisions. (SD, 22/11/1978, p. 2358.)

In 1982 the Senate passed three resolutions ordering that certain documents relating to tax evasion schemes be tabled after being edited by an independent party to exclude material which might prejudice the conduct of legal proceedings against those involved in tax evasion and avoidance schemes (23/9/1982, J.1105-7; 14/10/1982, J.1125; 25/11/1982, J.1258-9). The government maintained its position that the disclosure of the documents would be harmful to the administration of justice and stated that:

In the event that a Senate majority seeks to enforce the directions contained in the resolution of 25 November 1982, the Government intends to put the basic legal and constitutional questions in relation to the Senate’s powers before the High Court of Australia. (SD, 15/12/1982, pp 3581)

Before the matter could be resolved both Houses were dissolved on 4 February 1983 and the subsequent election resulted in a change of government. The matter was not further pursued in the next Parliament by the Senate or by the new government.

The final report of the Joint Select Committee on Parliamentary Privilege presented in October 1984 (PP 219/1984), observed that, since Sankey v Whitlam:

it is evident that the trend has been away from ready recognition of claims for Crown privilege and towards examining these claims closely and carefully weighing competing “public interest” considerations. It seems at least possible that an analogous evolution in thinking may develop in Parliament to help resolve cases where disputes arise between committees requesting information and Executives resisting their requests. But we cannot presume this will happen. We are faced with two options. Firstly, to allow matters to stand as they are; secondly, to propose means for the resolution of future clashes. (p. 153)

... But we do not think ... any procedures involving concessions to Executive authority should be adopted. Such a course would amount to a concession the Commonwealth Parliament has never made — namely, that any authority other than the Houses ought to be the ultimate judge of whether or not a document should be produced or information given. (p. 154)

The committee commented that the development of guidelines might prove helpful, but concluded that, ultimately, claims of public interest immunity can only be solved politically:

However ingenious, guidelines can only reduce the areas of contention: they can never be eliminated. This follows from the different functions, the inherent characteristics, and the differing interests of Parliament and the Executive. In the nature of things it is impossible to devise any means of eliminating contention between the two without one making major and unacceptable concessions to the other. It is theoretically possible that some third body could be appointed to adjudicate between the two. But the political reality is that neither would find this acceptable. We therefore think that the wiser course is to leave to Parliament and the Executive the resolution of clashes in this quintessentially political field. (p.154)

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