Later cases in the Senate
In more recent cases in the Senate, governments have exhibited a tendency to abandon reasoned claims of public interest immunity based on principles advanced in court proceedings, probably because the development of the law by the courts does not support large claims of executive secrecy. Instead ministers have sought to rely on more generalised claims of confidentiality. There has been a corresponding fall in the tolerance in the Senate of such claims.
In 1992 the government refused to produce a document in response to an order for the production of a note on a Treasury file. The government claimed that to produce the document would be contrary to the public interest in that it might damage Australia’s relationships with other countries. A letter of refusal was tabled and debated (9/12/1992, J.3262) but any further action by the Senate was forestalled by the 1993 prorogation and general election.
On 3 June 1992 the Senate requested the Procedure Committee to report on whether the exemption provisions of the Freedom of Information Act provide grounds for not producing documents to a House of Parliament. This followed remarks by the Leader of the Government in the Senate which appeared to suggest that the exemption provisions of the Freedom of Information Act provided grounds for refusal to provide documents to the Senate, a suggestion which the Senate by resolution repudiated (J.2404-5). On 15 October 1992 the committee reported that the Act does not apply as a matter of law to the production of documents to a House, and went on to observe that:
If a minister were to regard all of the exemption provisions of the Act as providing grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed by ministers; for example, the exemption provisions include reference to cabinet documents, Executive Council documents, internal working documents and documents relating to research, none of which has been regarded in the past as documents which may be withheld from Parliament by reason only that they fall into those categories.
The committee concluded that while a minister may use the provisions of the Freedom of Information Act as a checklist of grounds for non-disclosure, this practice:
does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination in the House.... Ministers will no doubt continue to take seriously their obligation to give account to the Houses of the conduct of government and to consider seriously the requests or requirements of a House for the production of documents. (Procedure Committee, Third Report of 1992, PP 510/1992, p. 6)
The committee noted that during the debate on the resolution referring this matter to it for consideration, reference was made to the resolutions of the Senate in 1982 which required the production of documents to a person appointed to act as the Senate’s agent to delete from the documents any material which should not be disclosed, particularly on the ground of risk of prejudice to legal proceedings (see above). The committee observed that these resolutions “may be regarded as indicating acceptance by the Senate of the principle that there are some grounds on which documents may be withheld, but there was at that time no general expression of the Senate’s view on the matter” (ibid., p. 4).
In late 1992 the Senate Select Committee on the Functions, Powers and Operation of the Australian Loan Council invited the Treasurer, the Hon J S Dawkins, to give evidence to the committee. The committee reported that it was disappointed that the Treasurer “had not appeared before the committee at its hearing on 15 December 1992, and was concerned at a statement made by Prime Minister Keating on 4 November 1992 that he would ‘forbid’ the Treasurer from appearing before it” (PP 78/1993, p. 58). The committee sought advice from the Clerk of the Senate who observed that:
If there were such an instruction by the Prime Minister to the Treasurer, it could be interpreted as an exercise of executive authority or a (premature) claim of executive privilege, or public interest immunity, in relation to a parliamentary inquiry (it would be premature in the sense that the committee presumably has made no demand for the Treasurer to give evidence). (Report, p. 91)
On the Clerk’s advice the committee wrote to the Prime Minister and the Treasurer asking each of them if the Prime Minister had issued any instruction to Mr Dawkins not to make a submission to, or appear before the committee, but no answer was forthcoming and the committee took no further action.
In February 1994 the Treasurer, the Hon. Ralph Willis, made a claim of public interest immunity in respect of certain classes of documents requested by the Senate Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media. The Treasurer also stated that he had instructed a number of official witnesses due to give evidence not to provide the committee with certain information or documents. In response to a request from the committee, the Clerk of the Senate advised that the existence of the claimed right to public interest immunity in respect of parliamentary proceedings has not been adjudicated by the courts, and observed:
The Senate has not conceded the existence of the claimed right, but, on the contrary, has asserted that it is for the Senate itself to determine whether any claim of privilege (i.e., a claim of immunity from a parliamentary demand) should be allowed (see the resolution of the Senate of 16 July 1975, no. 24 at page 122 of the standing orders volume).
The question of the existence of executive privilege in relation to parliamentary inquiries has not been settled. Unless it is adjudicated by the courts, which is unlikely, it will continue to be dealt with case by case as a matter of political dispute and contest between the Senate and a government.
Your letter asks whether members and former members of the Foreign Investment Review Board may be compelled to give evidence before the committee. Undoubtedly such persons, if in the jurisdiction, are subject to the parliamentary power to compel witnesses. The question implicitly raised by your letter and the correspondence attached to it is whether persons who are not officers of the executive government, but who are statutory office-holders or advisers to the executive government, are subject to direction by the executive government in relation to their response to a parliamentary demand, or may be covered, as it were, by a claim of executive privilege in relation to parliamentary inquiries.
During the “overseas loans case”, which was the occasion of the passage of the resolution of the Senate to which I have referred, the then Solicitor-General, who is a statutory office-holder and legal adviser to the executive government, in effect informed the Senate that, while he was not subject to direction by the executive government and not bound by a claim of executive privilege, he had a duty, in his view, to have regard to such a claim and not to act in such a way as to undermine it. On that basis he declined to answer questions. The Senate took no action against him, nor against the public service officers who were directed by the Prime Minister not to answer questions, but passed the resolution to which I have referred and pursued the matter as a political contest with the ministry of the day.
This question is therefore also not settled, and also has not been adjudicated by the courts.
The Clerk advised that in the first instance a person who is the subject of a parliamentary demand determines whether to have regard to or conform with an executive government direction to refuse a parliamentary demand.
If such a person decides to have regard to or conform with such a direction, it is for the committee or the House concerned to determine whether action should be taken against the person by way of proceedings for contempt or against the individual minister concerned or the ministry collectively as a political matter.
A committee met with a refusal by a person to comply with an order to attend, give evidence or produce documents cannot take any action against the person, but can only report the matter to the relevant House, which may then proceed against the person for contempt.
It is for a committee to which the power has been delegated to determine whether it should in a particular case make a formal demand (i.e., issue a summons) for a witness to attend, give evidence or produce documents. In my view a Senate committee should not make a formal demand unless the committee intends, in case of refusal, to ask the Senate to enforce the demand, and has some grounds to believe that the Senate will support the demand.
The committee also sought opinions from senior legal counsel concerning the constitutional aspects of public interest immunity claims, legal precedents and court practice. The advice of the Clerk and the opinions of counsel are included as appendices to the committee’s first report (PP 114/1994).
In response to these developments, Senator Kernot (Leader of the Australian Democrats, Queensland), on 23 March 1994, presented a bill to amend significantly the law of parliamentary privilege. On 12 May 1994 Senator Kernot successfully moved that the bill, the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994, be referred to the Committee of Privileges for examination. The preamble to the motion of referral noted that:
on several recent occasions the government has failed to comply with orders and requests of the Senate and its committees for documents and information, in particular:
the order of the Senate of 16 December 1993 concerning communications between ministers on woodchip export licences,
requests by the Select Committee on the Australian Loan Council for evidence, and
requests by the Select Committee on Foreign Ownership Decisions in Relation to the Print Media for documents and evidence;
the government has, explicitly or implicitly, claimed executive privilege or public interest immunity in not providing the information and documents sought by the Senate and its committees;
the grounds for these claims have not been established, but merely asserted by the government;
the Senate has no remedy against these refusals to provide information and documents, except its power to impose penalties for contempt;
the Senate probably cannot impose such penalties on a minister who is a member of another House;
it would be unjust for the Senate to impose a penalty on a public servant who, in declining to provide information or documents, acts on the directions of a minister;
there is no mechanism for having claims of executive privilege or public interest immunity adjudicated and determined by an impartial tribunal ... (J.1683-4)
The bill provided that failure to comply with a lawful order of either House or a committee would be a criminal offence prosecuted in the Federal Court. If an offence were proved, the Court would make orders to ensure future compliance with the lawful order of the House or committee; in the case in question the order would be for the production of the documents. If a public servant committed an offence as a result of an instruction by a minister, the Court would make the necessary orders but not impose a penalty. It would be a defence to a prosecution that compliance with an order to give evidence or produce documents would involve substantial prejudice to the public interest not outweighed by the public interest in the free conduct of parliamentary inquiries. In order to determine whether the defence was established, the Court would examine the disputed evidence or documents in camera. By this provision the Court would be empowered to determine any government claim of executive privilege. A House would not be able to use its power to punish contempts in respect of an offence for which it had initiated a prosecution, and only the Houses would be able to commence prosecutions.
In its 49th report presented on 19 September 1994 (PP 171/1994) the Privileges Committee recommended that the bill not be proceeded with, citing evidence by virtually all its witnesses that it would be unwise for the Parliament to allow the courts to adjudicate claims of executive privilege or public interest immunity in relation to a House or its committees. The committee considered that such claims should continue to be dealt with by the House concerned. (See also 52nd report of the committee, PP 21/1995.)
The committee acknowledged, as did all witnesses, that while there is some information held by the executive which should not be disclosed, “There was general agreement among witnesses that, in the words of the Leader of the Government in the Senate, Senator Evans, a claim of executive privilege or public interest immunity was ‘ultimately one for the house of parliament to determine’”. The committee noted, however:
... that the exercise of the power of one House to enforce an order against a member of another House, particularly a minister who claims executive privilege, is circumscribed by parliamentary rules. It was therefore well understood that any attempt by a House of the Parliament to impose the extreme penalties of either gaol or a fine upon a public servant who obeyed a ministerial instruction not to comply with an order of that House or a committee, while the minister concerned was immune from its contempt powers, was untenable. As Senator Kernot’s second reading speech noted, the powers of a House of Parliament under these circumstances ‘while extensive, are widely seen as inappropriate for use in such a situation’.
The committee acknowledged that “it is open to the Senate to take such action within its powers as it considers necessary to force a government to comply with an order, recognising that it would be only in extreme circumstances that such measures would be considered and even then may not universally be regarded as justifiable”.
Following presentation of the committee’s report, Senator Kernot gave notice of a motion to establish another mechanism for dealing with the claim of public interest immunity in relation to the documents not provided to the Select Committee on Foreign Ownership Decisions in Relation to the Print Media (19/9/1994, J.2160-5). The motion would have established a committee of party leaders to examine the documents in camera and determine whether the publication of the documents would be sufficiently prejudicial to the public interest as to outweigh the public interest in the free and effective conduct of Senate inquiries. A preamble to the motion referred to evidence to the Privileges Committee by the Leader of the Government in the Senate, Senator Gareth Evans, conceding that the Senate has the power to order the production of documents. This motion was not considered.
During the hearing of the Privileges Committee, the Leader of the Government in the Senate acknowledged the power of the Senate to require the production of documents and to punish defaults, and indicated that the government would think carefully before making a decision to refuse information or documents in response to a parliamentary requirement. Responses by ministers to Senate orders for the production of documents immediately subsequent to the report of the Privileges Committee indicated that ministers were perhaps not as ready to resort to claims of confidentiality or public interest immunity as they had been in the recent past. To that extent, Senator Kernot’s bill and the inquiry by the Privileges Committee may have had a salutary effect.
In Canwest and others v Treasurer of the Commonwealth (14/7/1997, not reported) the Federal Court rejected the argument that advice to government by the Foreign Investment Review Board should remain secret.
In its 52nd report in 1995 the Privileges Committee recommended the procedure of the appointment of a neutral third party to examine material claimed to be confidential and to report to the Senate on the content of such material. The committee pointed out that this, in effect, was what was done with the matter examined in that report, when the Senate asked the Auditor-General to report on material claimed by the government to be subject to commercial confidentiality (PP 21/1995).
The Finance and Public Administration References Committee, in a report in May 1998 on contracting out of government services, referred to the increasing resort to commercial confidentiality as a ground for withholding information, and observed that genuine commercially confidential matters are likely to be limited in scope and the onus is on the person claiming confidentiality to argue the case for it. The committee also recommended the use of an independent arbiter such as the Auditor-General to examine material on behalf of the Senate (PP 52/1998, p. 71).
In response to an order for production of documents relating to the waterfront dispute in 1998, the government refused to produce the documents on the ground that the documents were relevant to actions pending in the Federal Court between the parties to the dispute (SD, 28/5/1998, p. 3378-9). Advice by the Clerk of the Senate suggested that this apparent invocation of the sub judice convention was not well founded (Economics Legislation Committee, estimates hearing Hansard, 2/6/1998, pp E124-8). In this case there appeared to be a claim of public interest immunity (although not made explicitly) loosely based on an asserted danger to legal proceedings.
In 1999-2001 there were indications that the government had abandoned a policy of restraint in making public interest immunity claims, and was resorting more readily to such claims in attempts to keep information secret.
The Leader of the Government in the Senate, Senator Hill, was censured by the Senate for not responding properly to an order for documents relating to the Jabiluka uranium mine. The minister had tabled some documents and listed others which were withheld on stated grounds, but subsequently stated that only “key documents” had been produced. (24/3/1999, J.612-13)
The Minister for Family and Community Services, Senator Newman, refused to produce in response to a Senate order a draft document on changes to the welfare system which she had earlier said she would release at a Press Club address. Instead she produced substitute documents, including, eventually, the stated final version of the required document. Among the grounds for refusal to produce the required document were that its disclosure would “confuse the public debate” and “prejudice policy consideration”. Advice from the Clerk of the Senate suggested that these were novel grounds of unclear meaning. The minister was censured by the Senate (13/10/1999, J.1845-6). The Senate also adopted measures to penalise the government and to gain access to the content of the required document. Question time was extended (19/10/1999, J.1931-2), the Community Affairs References Committee was ordered to hold a hearing on the matter, and officers of the relevant department were ordered to give evidence before the committee (21/10/1999, J.1966). Officers duly appeared and gave evidence, although under an instruction from the minister not to answer some kinds of questions. When the committee reported the Senate carried a resolution rejecting the minister’s claim of public interest immunity and the grounds on which it was based (Report of the committee, including Clerk’s advices, PP 364/1999; 22/11/1999, J.2007, 25/11/1999, J.2077).
The government refused to produce documents relating to higher education funding, the stated grounds being commercial confidentiality, cabinet confidentiality and possibly confidentiality of advice. An advice from the Clerk of the Senate suggested that these grounds were over-extended and confused in the claim. Questions about the matter were, however, answered at an estimates hearing. (20/10/1999, J.1953-4; 21/10/1999, J.1988; Employment, Workplace Relations, Small Business and Education Legislation Committee, estimates Hansard, 2/12/1999, pp 74-5)
The government also refused to produce documents relating to purchases of magnetic resonance imaging machines. The principal grounds were risk of prejudice to administrative inquiries and the confidentiality of the government’s relationship with the medical profession. Advices from the Clerk of the Senate suggested that these grounds were novel and lacking in cogency. The matter was extensively explored at an estimates hearing, and the advices were released. Subsequently, a report by the Health Insurance Commission was produced, with an indication that cases had been referred to the Director of Public Prosecutions. The Senate directed a further committee hearing on the matter, at which officers were closely questioned. An Auditor-General’s report was obtained. Both the Senate committee and the Auditor-General found evidence of serious administrative deficiencies. Finally, a large volume of documents was tabled. (21/10/1999, J.1967; 29/11/1999, J.2123; Community Affairs Legislation Committee, estimates Hansard, 1/12/1999, pp 51-3; 15/2/2000, J.2280; 10/4/2000, J.2582-3, 2585; 10/5/2000, J.2682, 2689)
The government did not produce a draft report of the Bureau of Air Safety on an air safety trial. The order for the document was made in the context of suggestions that the report had been unduly delayed and interfered with. The government relied principally on the inappropriateness of producing a draft report. The final report was soon produced, probably prompted by the Senate’s order. (21/10/1999, J.1968; 22/11/1999, J.2008; 23/11/1999, J.2013)
The government’s new tax system, introduced in 1999-2000, gave rise to several demands for information by the Senate and relevant committees, most of which were met. In response to an order of 29 June 2000, however, the government declined to provide details of an economic model used to predict movements in petrol prices, on the ground that it was a working document, a ground in the Freedom of Information Act but not accepted by the Senate. (27/6/2000, J.2908; 29/6/2000, J.2992) Similarly, a refusal to produce documents relating to tax minimisation schemes was based on the protection of investigations, although the documents had apparently been offered in response to a freedom of information request upon the payment of a large fee (4/10/2000, J.3298-9; 6/2/2001, J.3840; 5/3/2001, J.4016; 7/3/2001, J.4046). In this case a recognition in the Senate’s order that there might be grounds for withholding some documents led to a government claim that the grounds applied to all of the documents.
An order for documents relating to the collapse of the HIH Insurance company, which was met by a government refusal, was not pursued largely on the basis that a royal commission into the matter was appointed (23/5/2001, J.4264-5; 24/5/2001, J.4289).
Frequent claims of commercial confidentiality in relation to government contracts led to a continuing order of the Senate for lists of contracts to the value of $100 000 or more to be published on the Internet with statements of reasons for any confidentiality clauses or claims (20/6/2001, J.4358-9). A claim by the government that the order was beyond the power of the Senate was rejected and later tacitly abandoned (26/9/2001, J.4976; 27/9/2001, J.4994-5; report of the Finance and Public Administration References Committee on accountability to the Senate in relation to government contracts, PP 212/2001, and advice from the Clerk of the Senate in that report, opinion by the Australian Government Solicitor’s Office and comments by the Clerk on that opinion, published by the committee; report by the Auditor-General, 18/9/2002, PP 367/2002; further report by the Finance and Public Administration References Committee, 12/12/2002, PP 610/2002; reports by Auditor-General, 5/3/2003, PP 23/2003; 11/9/2003, PP 183/2003, and subsequent reports; order amended 18/6/2003, J.1881-2; 26/6/2003, J.2011-13; 4/12/2003, J.2851).
A resolution of 30 October 2003 declared that the Senate and its committees would not entertain claims of commercial confidentiality unless made by a minister and accompanied by a ministerial statement of the basis of the claim, including a statement of the commercial harm which might result from the disclosure of the information (30/10/2003, J.2654). If a committee is satisfied that a statutory authority has such a degree of independence from ministerial direction that it would be inappropriate to have a minister make the claim, the committee may receive the claim from officers of the authority. For a ministerial claim in accordance with the resolution, see Legal and Constitutional Legislation Committee, estimates hearings 3/11/2003, additional information, vol. 2, p. 1.
The collapse of Ansett Australia led to two orders for documents on 19 and 20 September 2001 relating to the government’s approval of the takeover of Ansett by Air New Zealand. The government refused to produce the documents on 24 September 2001 on various grounds, including confidentiality of advice and a claim that producing the documents would distract departmental officers from the task of attempting to save Ansett, but it was indicated that the orders would be attended to later. The mover of the motions, Senator O’Brien, indicated that the matter would be pursued by way of hearings of the Rural and Regional Affairs and Transport References Committee, which was given a reference on the Ansett collapse on 19 September 2001. In accordance with an authorisation of the Senate, the committee held hearings accordingly on 27 September 2001. Departmental officers were then questioned, without the government attempting to prevent the hearing (19/9/2001, J.4875, 4879; 20/9/2001, J.4896; 24/9/2001, J.4922; 25/9/2001, J.4943; 27/9/2001, J.4996).
An order on 21 August 2002 relating to information on the financial situations of higher education institutions was met with a claim of commercial confidentiality and a statement that revealing the information would undermine confidence in the higher education sector. It was pointed out that the latter excuse is virtually an admission that the information would disclose serious difficulties which have been kept secret. The mover of the motion, Senator Carr, responded on 28 August with a notice of motion for an extensive committee inquiry into the subject. The notice was expressed to be contingent on the information not being provided before the motion was moved. Another government statement on 16 September gave some ground by indicating that the vice chancellors of various institutions would be asked for their permission to release information gathered from them. This concession did not satisfy the majority of the Senate, and the motion for the committee inquiry into the matter was passed on 18 September. The committee reported that universities had raised no objections to the disclosure of the information, and that it had obtained some of the information through its inquiry. (21/8/2002, J.626-7; 26/8/2002, J.652; 28/8/2002, J.688; 16/9/2002, J.723; 18/9/2002, J.760; 15/10/2003, J.2573)
On 12 August 2003 the Senate deferred consideration of two customs and excise tariff bills to give effect to an ethanol subsidy scheme until the government produced documents required by various Senate orders relating to the scheme. The documents were not produced and the bills were not passed. (12/8/2003, J.2089-90) (These bills were subsequently brought on and passed as a result of an agreement between the government and some senators as to amendments of other legislation and the tabling of some documents: 1/4/2004, J.3324.)
In February 2004 the government refused to comply with an order of 29 October 2003 for the production of statements giving details of government advertising contracts, the major ground of the refusal being that the information could be obtained by other means. The information was subsequently pursued in estimates hearings (29/10/2003, J.2641; SD, 12/2/2004, pp 20168-9; Finance and Public Administration Legislation Committee transcript, 16/2/2004, p. 154ff; Finance and Public Administration Committee, report on annual reports 2008, PP 231/2008: this report recommended compliance with the order).
An order in March 2004 relating to the alleged pressure exerted upon the Commissioner of the Australian Federal Police, Mr Keelty, to change his statements on terrorism and the war in Iraq, was met with a refusal to produce the required documents. The Leader of the Government in the Senate, Senator Hill, was censured after lengthy debate for failing to produce the documents. (24/3/2004, J.3216; 30/3/2004, J.3276-7)
The war in Iraq in 2003-04 produced several orders for documents and two government refusals to produce relevant documents (22/6/2004, J.3613; 23/6/2004, J.3658, SD, 23/6/2004, pp 24779-80; 24/6/2004, pp 24952-6).
In 2006 the government instructed some officers not to answer questions in estimates hearings on matters which were before the commission of inquiry (the Cole commission) into the AWB Iraq wheat bribery affair. Some questions about the matter were answered. There was no claim of public interest immunity. Because the then government had a party majority of one in the Senate, no remedial action was taken in this matter, except that senators kept asking questions, with some success. This was one of several unsupported government refusals to provide information during that period (July 2005-2007).
For debates on the then government’s record in responding to orders for documents, see SD, 19/11/2002, pp 6755-7, 2/12/2002, pp 6853-4, 26/3/2003, pp 10227-30, 16/6/2003, pp 11394-5, 17/6/2003, pp 11562-3. For a senator’s letter to the Leader of the Government on the matter, see letter tabled 14/5/2003, J.1803; debate on the letter: 22/6/2005, J.787. For a refusal by a minister to answer a question without stating any ground, see the reservation attached to the report of the Foreign Affairs, Defence and Trade Legislation Committee on the additional estimates 2004-05, PP 64/2005, pp 149-50; SD, 14/3/2005, pp 65-70.
Although governments have generally abandoned claims that documents should not be produced simply because they belong to a class of documents, this claim has continued in residual forms.
At various times governments have claimed that they should not be obliged to disclose legal fees paid or levied by the Commonwealth, on grounds of commercial confidentiality, client confidentiality or privacy. The Senate, however, has asserted its right to inquire into such fees (18/9/1980, J.1563). The claim has not been consistently made. (For a consideration of this question, see Legal and Constitutional Legislation Committee, Report on Budget Estimates 2002-2003, PP 328/2002, pp 3-5. For an inquiry by the Senate specifically into Commonwealth legal fees, see the report by the Legal and Constitutional Affairs Committee on fees paid by the Aboriginal Development Commission, PP 451/1991.)
Governments have also claimed that there is a long-established practice of not disclosing their advice, or of not doing so except in exceptional circumstances; see, eg., report by the Finance and Public Administration References Committee, PP 228/2005, pp xxii-xxiv. These claims are refuted by the occasions on which advice is voluntarily disclosed when it supports a government position; eg., 4/9/2006, J.2553. The actual position was stated in a letter produced in 2008 by the Secretary of the Department of Prime Minister and Cabinet: the government discloses its legal advice when it chooses to do so (see advices attached to the report of the Legal and Constitutional Affairs Committee on additional estimates for 2007-08, PP 230/2008; report on budget estimates 2008-09, PP 309/2008). (See Supplement) (See Supplement)
Similarly, immunity is often claimed for documents on the basis that they are cabinet documents. The cabinet confidentiality ground, however, is properly claimed only for documents which would reveal the deliberations of cabinet. The courts have made this clear in relation to such claims in court proceedings (see above, under Public interest immunity in the courts). (See Supplement)
Previous page | Contents | Next page
Back to top