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Chapter 19 - Relations with the executive government
Claims by the
executive of public interest immunity
The Senate has the power to require
the giving of evidence and the production of documents. (See Chapter 2,
Parliamentary Privilege and Chapter 17, Witnesses.) The executive government
and ministers are frequently the subjects of the exercise of this power. On 16 July 1975 the Senate
resolved:
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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.
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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.
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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.
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That, upon a claim of privilege based on an
established ground being made to any question or to the production of any
documents, the Senate shall consider and determine each such claim. (16/7/1975, J.831)
While the Senate undoubtedly possesses this power, it is acknowledged
that there is some information held by government which ought not to be
disclosed. This principle is the basis of a postulated immunity from disclosure
which was formerly known as crown privilege or executive privilege and is now
usually known as public interest immunity. While the Senate has not conceded
that claims of public interest immunity by the executive are anything more than
claims, and not established prerogatives, it has usually not sought to enforce
demands for evidence or documents against a ministerial refusal to provide them
but has adopted other remedies.
In 1976 the Royal Commission on Australian Government Administration
observed that:
Neither House of the Commonwealth
Parliament has yet formally determined whether it accepts or does not accept
that its investigatory authority is legally constrained by Crown privilege. It
is apparent that they are at least prepared to entertain claims, and in some situations
not to insist on answers being supplied, but this does not necessarily signify
acquiescence in any limitation on the legal powers of the Houses. (Report of
the Royal Commission on Australian Government Administration,
1976, PP 185/1976, p. 115.)
The Senate’s acknowledgment that a claim to public interest immunity
may be advanced is implied in the words “subject to the determination of all
just and proper claims of privilege” and “a claim of privilege based on an
established ground” in paragraphs (2) and (4) of the resolution of 16 July 1975
quoted above.
The Senate’s
resolutions on parliamentary privilege of 25 February 1988 (see Chapter 2,
Parliamentary Privilege and Chapter 17, Witnesses), in providing that witnesses
may raise objections to the giving of evidence (Resolution 1, paragraph (10)),
implicitly acknowledge the right to make claims for public interest immunity.
Paragraph (4) of the resolution of 16 July 1975 makes it clear
that while the Senate may permit claims for public interest immunity to be
advanced it reserves the right to determine whether any particular claim will
be accepted.
The existence of the claimed right of public interest immunity in
respect of parliamentary proceedings has not been adjudicated by the courts and
is not likely to be. Several Senate committees have considered the question but
have not developed agreed procedures or criteria for determining whether a
claim for public interest immunity should be granted. A common thread
emerging from the deliberations of those committees is that the question is a
political, and not a legal or procedural, one. There appears to be a consensus
that the struggle between the two principles involved, the executive’s claim
for confidentiality and the Parliament’s right to know, must be resolved
politically. In practice this means that whether, in any particular case, a
government will release information which it would rather keep confidential
depends on its political judgment as to whether disclosure of the information
will be politically more damaging than not disclosing it, the latter course
perhaps involving difficulty in the Senate or public disapprobation.
(See Supplement)
A paper entitled Grounds for Public Interest Immunity Claims, listing
potentially acceptable and unacceptable grounds for claims of public interest
immunity, based on cases in the Senate (many of which are set out below), was
circulated to senators during the May 2005 estimates hearings, and was
published by the Employment, Workplace Relations and Education Legislation
Committee. The paper indicated that the following grounds had attracted some
measure of acceptance in the Senate, subject to the circumstances of particular
cases and without acceptance of distorted or exaggerated versions of the
grounds:
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prejudice
to legal proceedings
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prejudice
to law enforcement investigations
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damage
to commercial interests
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unreasonable
invasion of privacy
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disclosure
of Executive Council or cabinet deliberations
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prejudice
to national security or defence
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prejudice
to Australia's international
relations
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prejudice
to relations between the Commonwealth and the states.
The paper listed the following grounds not accepted by the Senate:
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a
freedom of information request has been or could be refused
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legal
professional privilege
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advice
to government
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secrecy
provisions in statutes
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working
documents
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“confusing
the public debate” and “prejudicing policy consideration”.
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