Chapter 19 - Relations with the executive government

Other jurisdictions

Other jurisdictions have not resolved the problem of determining executive government claims of public interest immunity so as to avoid the defect of the government being the judge in its own cause.

In most jurisdictions with “Westminster” systems of government, the executive government controls the lower house and the question arises only occasionally in second chambers not under government control, so that there has been no regular solution found.

In 1998 and 1999 the New South Wales Legislative Council succeeded in extracting information from the government by suspending the Treasurer, a member of the Council, from service in the Council, its power to do so having been upheld by the Court of Appeal: Egan v Willis and Cahill 1998 158 ALR 527; Egan v Chadwick and others 1999 46 NSWLR 563. Following this case the Council adopted the procedure of appointing an independent arbiter to assess any claims of public interest immunity arising from orders for documents. This procedure has worked successfully in several cases.

The Houses of the United States Congress, which operate independently of the executive, have not found a satisfactory remedy, although they are usually successful in practice in extracting evidence from reluctant administrations. As noted in Chapter 2, the US Houses possess inherent powers to require the attendance of witnesses, the giving of evidence and the production of documents, and to punish contempts. They have enacted a statutory criminal offence of refusal to give evidence. They may also seek to have their requirements enforced through the courts by civil process. In serious cases of conflict between the Houses and the administration over the production of documents, administration officers are “cited” for contempt, but these matters usually end in some compromise and with documents handed over. In some cases, presidents have successfully withheld documents from the Houses. The courts, while suggesting some constitutional basis for executive privilege, and accepting jurisdiction in particular cases, have not become involved in determining specific claims of executive privilege. (Senate Select Committee v Nixon 1974 498 F 2d 725; US v Nixon 1974 418 US 683; US v AT&T 1977 567 F 2d 121; US v House of Representatives 1983 556 F Supp. 150; In re Sealed Case 1997 121 F 3d 729; Committee on the Judiciary, US House of Representatives v Miers, 31/7/2008, not reported). Contests between Congress and administration are generally left to “the ebb and flow of political power” (Archibald Cox, quoted in report of Committee of Privileges, PP 215/1975, p. 47).

While the public interest and the rights of individuals may be harmed by the enforced disclosure of information, it may well be considered that, in a free state, the greater danger lies in the executive government acting as the judge in its own cause, and having the capacity to conceal its activities, and, potentially, misgovernment from public scrutiny. It may also be considered that a representative House of the Parliament is the best judge of the balance of public interests.

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