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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 19 - Relations with the executive government

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Claims by the executive of public interest immunity

The Senate has the power to require the giving of evidence and the production of documents.[99] The executive government and ministers are frequently the subjects of the exercise of this power. On 16 July 1975 the Senate resolved:

  1. (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. (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. (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. (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.[100]

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.[101]

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,[102] in providing that witnesses may raise objections to the giving of evidence, implicitly acknowledge the right to make claims for public interest immunity.[103]

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. However, this position has been somewhat undermined by recent amendments to strengthen freedom of information legislation including by identifying factors favouring access. Testimony from the Treasury Secretary during additional estimates hearings of the Economics Legislation Committee on 24 February 2011 indicated that information refused to the Senate in accordance with "the way that our parliamentary procedures operate" had subsequently been released under FOI, highlighting the hollowness of many executive claims for confidentiality.

The Senate passed on 13 May 2009 an order setting out the process to be followed by public sector witnesses who believe that they have grounds for withholding information from Senate committees. In essence, the order requires that witnesses state recognised public interest grounds for withholding information and, at the request of a committee or any senator, refer the matter to the responsible minister, who is also required to state recognised public interest grounds for any claim to withhold the information.[104] The Procedure Committee reviewed the operation of the order, suggesting there was evidence of a lack of acquaintance with it during the 2009 Budget estimates hearings and indicating that further steps would be taken to bring it to the attention of departments and agencies.[105] A subsequent report indicated there was still a lack of understanding of the order.[106] On 16 November 2009, following the tabling of documents relating to the National Broadband Network and the withholding of many on various grounds of public interest immunity, the Senate referred to the Finance and Public Administration References Committee a process for determining such claims.[107] The committee's report did not at this time support the proposed process for third party arbitration. Subsequently, however, this mechanism received renewed support in the various agreements on parliamentary reform, entered into after the 2010 election, but is yet to be implemented.[108]

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".

Public interest immunity in the courts

While the Houses of the Parliament are not obliged to follow the criteria used by the courts in cases involving claims to public interest immunity, parliamentary thinking has been influenced by changing judicial practice.

For many years the view of the courts was that a certificate from a minister or an authorised senior public servant stating that certain information should not be disclosed to a court in the public interest was accepted as conclusive. Immunity could be claimed for a document either on the ground that it contained particular information (for example, secret defence or diplomatic material) whose disclosure would be against the public interest, or on the ground that it belonged to a specific class of documents, such as cabinet documents and advice from senior officials to ministers, which ought to be kept confidential irrespective of the contents of any one document within that class. This view was articulated in the judgment of Simon L.C. in the British case, Duncan v Cammell, Laird and Co Ltd [1942] AC 624, which included the following outline of the principles which should guide ministers in considering whether to claim privilege:

In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford to the Minister adequate justification for objecting to production. It is not a sufficient ground that the documents are "State documents" or "official" or are marked "confidential". It would not be a good ground that, if they were produced, the consequences might involve the department or the government in parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the Department open to claims for compensation. In a word, it is not enough that the Minister of the department does not want to have the documents produced. The Minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. When these conditions are satisfied and the Minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration. The present opinion is concerned only with the production of documents, but it seems to me that the same principle must also apply to the exclusion of oral evidence which, if given, would jeopardise the interest of the community.[109]

The attitude of the courts changed in 1968 when the House of Lords held, in Conway v Rimmer [1968] AC 910, that the minister's certification was not conclusive in all cases and that it was for the court to decide whether the immunity should be granted. The High Court of Australia took a similar view in Sankey v Whitlam (1978) 142 CLR 1, in which Stephen J. described crown privilege as involving:

two principles which are of quite general importance to our system of government and of justice. Such is the vigour and breadth of these principles that each, given its fullest extent of operation, will at its margins encounter and conflict with the other. ... These principles, stated in their broadest form, each reflect different aspect of the public weal. Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.[110]

Gibbs A.C.J. acknowledged that "it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public". He noted, however, that the object of such protection from disclosure "is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate or unfairly based".[111] He concluded: "It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld".[112] He further observed:

It is impossible to accept that the public interest requires that all state papers should be kept secret for ever, or until they are only of historical interest. In some cases the legitimate need for secrecy will have ceased to exist after a short time has elapsed.[113]

I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure forever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice.[114]

Justice Stephen observed that:

to accord privilege to such documents as a matter of course is to come close to conferring immunity from conviction upon those who might occupy or may have occupied high offices of State if proceeded against in relation to their conduct in those offices.[115]

If the defendants did engage in criminal conduct, and the documents are excluded, a rule of evidence designed to serve the public interest will instead have become a shield to protect wrongdoing by Ministers in the execution of their office.[116]

In 1984 the High Court ordered the production of Australian Security and Intelligence Organisation (ASIO) documents for its inspection in a criminal trial.[117] The Court held that:

The production to the court of documents recording cabinet deliberations should only be ordered in exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of such documents.

It is doubtful whether civil proceedings will ever warrant the production of documents recording cabinet deliberations upon a matter which remains current or controversial. In criminal proceedings exceptional circumstances may exist if withholding the documents would prevent a successful prosecution or impede the conduct of the defence.[118]

It had long been argued that one class of documents, those concerned with the policy-making process, should be absolutely protected from disclosure because without such protection public servants might not be willing to proffer advice fearlessly and candidly. In Commonwealth v Northern Land Council the Court made the following observations on this argument:

When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has "received an excessive dose of cold water".[119]

In INP Consortium and others v John Fairfax Holdings Ltd (Unreported, Federal Court of Australia, 18 July 1994) the Federal Court ordered documents for which public interest immunity had been claimed by the Foreign Investment Review Board to be made available to the legal representatives of one party to the proceedings. The judge held that the balance between the need to keep certain documents confidential in the public interest and the public interest in the due administration of justice:

can be properly accommodated by the not unusual course of ordering that the documents be kept confidential but made available on a limited basis for inspection by the applicants' legal representatives.

In Canwest v Treasurer (Cth) (Unreported, Federal Court of Australia, 14 July 1997) the Federal Court rejected a claim that advice to government should be immune from production, and scorned the notion that advice would not be given freely unless given in secret. This the court called "secrecy for its own sake".

The claim often loosely made that "cabinet documents" are immune from production in the courts is not supported by recent judgments. Only documents which record or reveal the deliberations of cabinet are immune.[120]

It is clear that, in recent times, the courts have been less willing to accept claims that the admission into evidence or disclosure of material would be detrimental to the public interest, and have been unwilling to allow the executive government to act as judge in its own cause by determining that question. Governments have had to adjust to this approach by the courts and to accept that claims of public interest immunity may not be sustained.

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.[121]

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.[122]

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. (a) when the production of the contents of the particular document would injure the public interest; and
  2. (b) 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 interdepartmental 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.[123]

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".[124] 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.[125]

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, the committee said that it did not disagree with the first qualification.[126] 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 interdepartmental 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 which outlined the Government's views on public interest immunity. [127] 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.

... 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 ... [128]

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.[129]

In 1973 a question arose as to the attendance of members of 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 ASIO 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.[130]

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.[131]

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 SolicitorGeneral 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.[132]

The Privileges Committee presented its report on 7 October 1975.[133] 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.[134]

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.[135]

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 (1978) 142 CLR 1 (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.[136]

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.[137] 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.[138]

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, 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.

... 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.[139]

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.[140]

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 but any further action by the Senate was forestalled by the 1993 prorogation and general election.[141]

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.[142] 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.[143]

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".[144]

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".[145] 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).[146]

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.[147]

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:

  1. (a) 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:
  1. (i) the order of the Senate of 16 December 1993 concerning communications between ministers on woodchip export licences,
  2. (ii) requests by the Select Committee on the Australian Loan Council for evidence, and
  3. (iii) requests by the Select Committee on Foreign Ownership Decisions in Relation to the Print Media for documents and evidence;
  1. (b) 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;
  2. (c) the grounds for these claims have not been established, but merely asserted by the government;
  3. (d) the Senate has no remedy against these refusals to provide information and documents, except its power to impose penalties for contempt;
  4. (e) the Senate probably cannot impose such penalties on a minister who is a member of another House;
  5. (f) 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;
  6. (g) there is no mechanism for having claims of executive privilege or public interest immunity adjudicated and determined by an impartial tribunal ... [148]

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 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. [149] The committee considered that such claims should continue to be dealt with by the House concerned.[150]

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.[151] 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 v Treasurer Cth (Unreported, Federal Court of Australia, 14 July 1997) 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.[152]

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.[153]

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.[154] Advice by the Clerk of the Senate suggested that this apparent invocation of the sub judice convention was not well founded.[155] 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.[156]

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.[157] The Senate also adopted measures to penalise the government and to gain access to the content of the required document. Question time was extended, 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.[158] 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.[159]

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.[160]

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.[161]

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.[162]

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.[163] 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.[164] 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.[165]

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.[166] A claim by the government that the order was beyond the power of the Senate was rejected and later tacitly abandoned.[167]

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.[168] 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.[169]

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.[170]

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.[171]

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.[172]

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.[173]

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.[174]

The war in Iraq in 2003-04 produced several orders for documents and two government refusals to produce relevant documents.[175]

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 Australian Wheat Board 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).[176]

The persistence of ministers and officers in declining to answer questions or produce documents, at estimates hearings without properly raising recognised public interest grounds led to a resolution of the Senate of 13 May 2009 prescribing the process to be followed by public sector witnesses who believe they have grounds for withholding information.[177]

Observation of the resolution was not achieved at the subsequent estimates hearings, indicating a lack of understanding of the principle involved, that claims to withhold information from Senate committees require a statement of public interest grounds that can be considered by the committee and the Senate. The resolution now forms part of chairs' opening statements at all estimates hearings.

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.[178] The claim has not been consistently made.[179]

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.[180] These claims are contradicted by the occasions on which advice is voluntarily disclosed when it supports a government position.[181] 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.[182] The inconsistency inherent in the government's position was illustrated by the release of summary legal advice relating to the Water Act 2007, a refusal to release the full advice, but publication of a statement by the Australian Government Solicitor that the full advice was consistent with the summary advice![183] One reason sometimes advanced for not disclosing legal advice is that disclosure of the advice may prejudice the Commonwealth's position in future legal proceedings. Such a claim was made in respect of the legal advice relating to the Health Insurance Amendment (Revival of Table Items) Bill 2009 and its alleged unconstitutionality, apparently on the basis of its contravention of section 53.[184] As section 53 of the Constitution is not justiciable, the claim clearly had no foundation in this case as there cannot be any legal proceedings on the matter.[185]

The claim that documents could not be produced to a committee because they were not published, a vacuous claim, as committees would not be likely to seek information already published, was repudiated in a resolution passed in February 2009.[186]

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.[187] The courts have made this clear in relation to such claims in court proceedings (see above, under Public interest immunity in the courts).

In 2010, correspondence which had been "declassified" (by having the cabinet-in-confidence security marking ruled through) was tabled in the Senate in response to an order for documents relating to the problematic home insulation scheme. It was stated that the documents were being released because their contents were now largely in the public domain.[188]

Statutory authorities and public interest immunity

As noted in the Clerk's advice to the Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media in September 1994 (see above), it has not been settled whether the executive government may seek to make a claim of public interest immunity in respect of, or on behalf of, statutory authorities or statutory office-holders.

(SEE SUPPLEMENT)

On several occasions the Senate has, by resolution, asserted the principle that, while statutory authorities may not be subject to direction or control by the executive government in their day-to-day operations, they are accountable to the Senate for their expenditure of public funds and have no discretion to withhold from the Senate information concerning their activities.[189]

Officers of statutory authorities, therefore, so far as the Senate is concerned, are in the same position as other witnesses, and have no particular immunity in respect of giving evidence before the Senate and its committees.

(SEE SUPPLEMENT)

Remedies against executive refusal of information

As has been noted in the analysis above, the principal remedy which the Senate may seek against an executive refusal to provide information or documents in response to a requirement of the Senate or a committee is to use its power to impose a penalty of imprisonment or a fine for contempt, in accordance with the Parliamentary Privileges Act 1987.[190] As has also been noted, there are practical difficulties involved in the use of this power, particularly the probable inability of the Senate to punish a minister who is a member of the House of Representatives, and the unfairness of imposing a penalty on a public servant who acts on the directions of a minister. A penalty imposed for contempt may be contested in the courts under the Parliamentary Privileges Act.[191] It is possible, but unlikely, that the courts in such a challenge could determine a claim of public interest immunity.[192]

The Senate may impose a range of procedural penalties on a government for a refusal to provide information or documents, ranging from a motion to censure a minister (see above) to a refusal to pass government legislation. The Senate has, however, usually been reluctant to resort to the more drastic of these kinds of measures.

In some cases procedural penalties have been imposed and alternative methods of obtaining the required information, such as committee hearings, have been pursued.

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 initially not produced and the bills were not passed until documents were subsequently tabled.[193]

A remedy against government refusal was included in an order for documents made on 1 November 2000. It provided that, should the required documents not be produced, the responsible Senate minister would be obliged to make a statement and a debate could then take place. Documents were produced in response to the order.[194]

On 13 May 2009 government legislation to establish the National Broadband Network was postponed until the government produced information required by an order of the Senate.[195] The bill was subsequently discharged from the Notice Paper but a second bill was introduced and also postponed in accordance with the same order.[196]

A resolution passed by the Senate on 17 June 2009 set out the history of attempts by the Select Committee on Fuel and Energy, supported by orders for documents passed by the Senate, to extract from the government information on computer modelling on climate change.[197] A further resolution on 25 June 2009 declared the government contemptuous for failing to produce this information.[198] This action coincided with the postponement of the government's carbon pollution reduction scheme legislation.

As has also been noted above, the Senate may seek to impose a political penalty on a government for refusing to cooperate with a Senate inquiry. This, in effect, is what happened in relation to the overseas loans affair in 1975 and the taxation avoidance affair in 1982: the government's refusal to cooperate with inquiries was made the subject of unrelenting political attack. In both cases, the perception that the governments were concealing their own mistakes and misdeeds probably significantly contributed to their defeat at subsequent general elections. As was suggested in evidence before the Privileges Committee, however, an electoral remedy is uncertain of application, depending as it does on the relative electoral strengths of parties at the time.

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 (1998) 195 CLR 424; Egan v Chadwick (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 and has also been adopted by the Victorian Legislative Council.[199] Early in 2012, a member of the Victorian Legislative council initiated an action in the Supreme Court for a declaration that the Council had the power to order documents. This was in response to a government claim to the contrary and its repeated refusal to produce a report on a transport ticketing system.

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.[200] Contests between Congress and administration are generally left to "the ebb and flow of political power".[201]

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.


99. See Chapter 2, Parliamentary Privilege and Chapter 17, Witnesses.
100. 16/7/1975, J.831.
101. Report of the Royal Commission on Australian Government Administration, 1976, PP 185/1976, p. 115.
102. See Chapter 2, Parliamentary Privilege and Chapter 17, Witnesses.
103. Resolution 1, paragraph (10).
104. 13/5/2009, J.1941-2.
105. Procedure Committee, Third report of 2009, PP No. 168/2009.
106. Procedure Committee, Fourth report of 2009, PP No. 320/2009.
107. 16/11/2009, J.2709-10.
108. See Chapter 18, under Orders for production of documents for an account of orders directed to the Australian Information Commissioner (the arbiter proposed in the 2010 parliamentary reform agreements).
109. Duncan v Cammell, Laird and Co Ltd [1942] AC 624 at 642-3.
110. Sankey v Whitlam (1978) 142 CLR 1 at 48-9.
111. ibid., at 40.
112. ibid., at 38.
113. ibid., at 41-2.
114. ibid., at 43.
115. ibid., at 56.
116. ibid., at 47.
117. Alister v The Queen (1984) 154 CLR 404. In Commonwealth v Northern Land Council (1993) 176 CLR 604 the High Court held that the Commonwealth should not have been ordered to produce notebooks containing records of cabinet deliberations to legal representatives of the Northern Land Council.
118. Commonwealth v Northern Land Council (1993) 176 CLR 604 at 605.
119. ibid., at 615.
120. Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31; National Tertiary Education Industry Union v Commonwealth (Unreported, Federal Court of Australia, 19 April 2001); see also Secretary, Department of Infrastructure v Asher [2007] 19 VR 17.
121. Reports of the Select Committee on National Service in the Defence Force, PP S.2 and S.3 of 1950-51.
122. For the full text of the letter see ASP, 6th ed., pp. 830-3.
123. For the full text of the letter see ASP, 6th ed., pp. 834-44.
124. Report, PP 185/1976, p. 115.
125. ibid., p. 115.
126. PP 99/1969.
127. PP 168/1972; tabled 26/10/1972, J.1206.
128. PP 168/1972, pp. 38, 39.
129. See also Chapter 18, Documents.
130. For the full text of the letters see SD, 15/7/1975, pp. 2729-30.
131. For the full text of the letter see SD, 16/7/1975, p. 2762.
132. 17/7/1975, J.836-7.
133. PP 215/1975.
134. SD, 17/2/1977, p. 175-9.
135. For texts of the guidelines, see SD, 23/8/1984, pp. 309-14; SD, 30/11/1989, pp. 3693-702. Inadequacies of the guidelines were the subject of a report of the Foreign Affairs, Defence and Trade References Committee in 2010 (PP 69/2010), an issue subsequently referred to the Privileges Committee which is examining a revised version of the guidelines: 23/6/2010, J.3687, 21/3/2011, J.700; and, see the committee's website for a draft of the revised guidelines.
136. SD, 22/11/1978, p. 2358.
137. 23/9/1982, J.1105-7; 14/10/1982, J.1125; 25/11/1982, J.1258-9.
138. SD, 15/12/1982, p. 3581.
139. PP 219/1984, pp. 153,154.
140. ibid., p. 154.
141. 9/12/1992, J.3262.
142. J.2404-5.
143. Procedure Committee, Third Report of 1992, PP 510/1992, p. 6. Major amendment of the Freedom of Information Act in 2010 to encourage disclosure has not inhibited claims of confidentiality based on increasingly generalised grounds. See testimony by Treasury secretary referred to above.
144. ibid., p. 4.
145. PP 78/1993, p. 58.
146. Report, p. 91.
147. PP 114/1994.
148. J.1683-4.
149. PP 171/1994.
150. See also 52nd report of the committee, PP 21/1995.
151. 19/9/1994, J.2160-5.
152. PP 21/1995.
153. PP 52/1998, p. 71. A later committee, however, drew back from endorsing the use of an independent arbiter, see PP 6/2010.
154. SD, 28/5/1998, p. 3378-9.
155. Economics Legislation Committee, estimates hearing Hansard, 2/6/1998, pp. E124-8.
156. 24/3/1999, J.612-13.
157. 13/10/1999, J.1845-6.
158. 19/10/1999, J.1931-2; 21/10/1999, J.1966.
159. Report of the committee, including Clerk's advices, PP 364/1999; 22/11/1999, J.2007, 25/11/1999, J.2077.
160. 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.
161. 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.
162. 21/10/1999, J.1968; 22/11/1999, J.2008; 23/11/1999, J.2013.
163. 27/6/2000, J.2908; 29/6/2000, J.2992.
164. 4/10/2000, J.3298-9; 6/2/2001, J.3840; 5/3/2001, J.4016; 7/3/2001, J.4046.
165. 23/5/2001, J.4264-5; 24/5/2001, J.4289.
166. 20/6/2001, J.4358-9.
167. 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.
168. 30/10/2003, J.2654.
169. 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.
170. 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.
171. 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.
172. 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.
173. 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.
174. 24/3/2004, J.3216; 30/3/2004, J.3276-7.
175. 22/6/2004, J.3613; 23/6/2004, J.3658, SD, 23/6/2004, pp. 24779-80; 24/6/2004, pp. 24952-6.
176. 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.
177. 13/5/2009, J.1941-2. See Claims by the executive of public interest immunity above.
178. 18/9/1980, J.1563.
179. 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.
180. See, for example, report by the Finance and Public Administration References Committee, PP 228/2005, pp. xxii-xxiv.
181. For example, 4/9/2006, J.2553.
182. 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. For an example of questions in a committee about the content of legal advice, and answers provided, see Environment, Communications and the Arts Committee, estimates hearing, 23/2/2009, transcript, pp. 149-53.
183. 10/2/2011, J.582.
184. See Chapter 15, Delegated legislation and disallowance under Disallowance of a repealing instrument.
185. 18/11/2009, J.2768; SD, pp. 8255-60.
186. 4/2/2009, J.1541-2.
187. For a claim that disclosure of documents relating to the processing and resettlement of asylum seekers aboard the Oceanic Viking would compromise the confidentiality of cabinet, see 3/2/2010, J.3119. Questions on this matter were subsequently asked at estimates hearings, Legal and Constitutional Affairs Legislation Committee, 9/2/2010.
188. 15/6/2011, J.3535.
189. 9/12/1971, J.846; 23/10/1974, J.283, 18/9/1980, J.1563; 4/6/1984, J.902; 19/11/1986, J.1424; 29/5/1997, J.2042; see also report of the Standing Committee on Finance and Government Operations on ABC Employment Contracts and their Confidentiality, PP 432/1986, and the government's response, SD, 17/11/1987, pp. 1840-4; Privileges Committee, 64th report, PP 40/1997, 29/5/1997, J.2042.
190. See Chapter 2, Parliamentary Privilege.
191. See Chapter 2, Parliamentary Privilege.
192. See Egan v Chadwick (1999) 46 NSWLR 563.
193. 12/8/2003, J.2089-90; 1/4/2004, J.3324-5.
194. 1/11/2000, J.3462; 2/11/2000, J.3479; 27/11/2000, J.3586.
195. 13/5/2009, J.1934; 25/6/2009, J.2194.
196. 15/9/2009, J.2486; 2490-1.
197. J.2090-2.
198. J.2189.
199. For information about the operation of these procedures, see evidence by the Clerks of those Houses to the Finance and Public Administration References Committee in its inquiry on an independent arbiter, PP 6/2010.
200. Senate Select Committee on Presidential Campaign Activities v Nixon, 498 F 2d 725 (DC Cir, 1974); United States v Nixon 418 US 683 (1974); United States v American Telephone & Telegraph Company 567 F 2d 121 (DC Cir, 1977); United States v US House of Representatives 556 F Supp. 150 (D DC, 1983); Re Sealed Case, 121 F 3d 729 (DC Cir, 1997); Committee on the Judiciary, US House of Representatives v Miers (D DC, Civ No 08-0409, 31 July 2008).
201. Archibald Cox, quoted in report of Committee of Privileges, PP 215/1975, p. 47.