Relations with the executive government
In any system of government conducted by elected representatives of the people, the relationship between the representative assembly holding the legislative power and the holders of the executive power is of great significance. In a parliamentary system, in which the executive is formed out of the legislative assembly, the relationship is of greater significance. In such a system the executive, the ministry, is supposed to be scrutinised and controlled by the legislature. In practice, in most systems inherited from the United Kingdom, the ministry has come to control the lower house of the legislature through control of disciplined and hierarchical parties. In this situation, as has been observed in Chapter 1, the role of a second chamber like the Senate is crucial, and its relationship with the executive must, if it can, compensate for the usual ministerial dominance of the lower house.
This chapter examines relations between the Senate and the executive government and the accountability of the executive generally. The scrutiny of legislation and inquiries into government activities are examined in Chapters 12 and 13 on Legislation and Chapters 16 and 17 on Committees and Witnesses.
The Governor-General and the Senate
The Governor-General as the representative of the monarch is a part of the legislature, but does not normally attend or participate in the proceedings of either House, with two exceptions. The Governor-General at the opening of each session of Parliament delivers an opening speech in the Senate chamber. The Governor-General also usually attends personally to swear in new senators, when there is no President in office. This is usually after the terms of senators have begun, but may occur on other occasions. For example, when Senator Douglas McClelland resigned as President and as a senator during the summer adjournment in February 1987, the Governor-General attended the Senate on the first sitting day to report the resignation and the appointment by the Parliament of New South Wales of a person to fill the vacancy, and to hear the affirmation of the new senator. Apart from these occasions communications between the Governor-General and the Houses consist of formal addresses and messages, and announcements by ministers.
The principal constitutional powers and functions of the Governor-General as they directly affect the Senate include the appointment of times for the holding of sessions of Parliament and the proroguing of Parliament (s. 5), and the dissolution of both Houses simultaneously and the convening of a joint sitting (s. 57). The Governor-General may administer the oath or affirmation to senators or may commission deputies to do so (s. 42). The President's resignation is tendered to the Governor-General (s. 17), as are those of senators if there is no President or the President is absent from the Commonwealth (s. 19). In the event of a vacancy in the Senate when there is no President or the President is absent from the Commonwealth the Governor-General notifies the Governor of the relevant State (s. 21). When legislation has been passed by both Houses it is presented to the Governor-General for assent, and the Governor-General may also recommend amendments (s. 58). Section 128 of the Constitution provides that where the Houses cannot agree on a proposed law to alter the Constitution the Governor-General may submit the proposal to the electors.
The Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia state that “a person appointed to be Governor-General shall take the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the Presence of the Chief Justice or another Justice of the High Court of Australia”. The oath or affirmation of allegiance is as set out in the schedule to the Constitution and the form of the oath or affirmation of office is specified in paragraph V(b) of the Letters Patent. The venue for the swearing-in of a new Governor-General is determined by the Government. Traditionally it takes place in the Senate chamber, but is not part of proceedings of the Senate.
The Senate may formally communicate with the monarch or the Governor-General by way of an address, in accordance with provisions in standing orders 171 and 172. A motion for an address requires notice. Addresses may be presented on any topic on which a House wishes to express its view, including in relation to public affairs. In the early years of the Senate, there were some significant addresses presented.
Addresses to the monarch were formerly used for various occasions; they are now very rare. Apart from the presentation of an address-in-reply to the Governor-General's speech at the opening of each new session of Parliament (see Chapter 7), there have been no addresses presented to the Governor-General since 1931. In 2015, a proposed address seeking the revocation of letters patent to a royal commissioner on grounds of alleged bias was unsuccessful.
Should the Senate request access to documents in the control of the Governor-General, such as correspondence between the Governor-General and the Prime Minister on a request for a dissolution, an address to the Governor-General may be employed. In 2012, in correspondence to the Chair of the Finance and Public Administration Legislation Committee responding to matters raised at supplementary budget estimates hearings that year, the Leader of the Government in the Senate suggested that it would be more appropriate for information concerning the administration of the Australian honours system to be sought by means of an address to the Governor-General, since the honours system was established by royal prerogative.
Addresses of these types are distinct from joint addresses for the removal of judges under section 72 of the Constitution (see Chapter 20) or of other officers under their enabling statutes.
Except when the Governor-General attends the Senate in person, the usual form of communication to the Senate is by message.
Messages from the Governor-General are reported to the Senate as soon as practicable after receipt. A message may be presented by a minister at any time, but not during a debate, or so as to interrupt a senator speaking. The message may be at once taken into consideration, or ordered to be printed, or a future day may be fixed on motion for taking it into consideration.
Messages from the Governor-General are received by the Senate on the following subjects:
The monarch, Governor-General and governors of the states are protected by the procedures of the Senate against offence in debate. Standing order 193(2) provides that a senator shall not refer to them “disrespectfully in debate, or for the purpose of influencing the Senate in its deliberations”. It has been ruled that this order does not protect former Governors-General but may protect Governors-General designate. Any criticism of a Governor-General is only permitted by way of substantive motion.
Effect of prorogation and of the dissolution of the House of Representatives on the Senate
Each House of the Parliament is empowered by the Constitution (sections 49, 50) to regulate its own proceedings, including the times at which it meets during a session of Parliament. While the annual program of sittings is normally decided in consultation with the other House, each may independently determine the pattern of its meetings during a session, which commences, as noted in Chapter 7, with the opening of Parliament by the Governor-General. The days on which a House meets, the times of meeting on a sitting day, including any suspensions, and the time and duration of adjournments during a session are matters to be determined by that House alone.
The commencement and termination of sessions of Parliament, however, are matters determined not by the Houses themselves but by the executive branch of government. Parliament as a collective entity, consisting of the monarch, the Senate and the House of Representatives, comes into being when the Governor-General, under section 5 of the Constitution, appoints the time for a session to begin. Except when a session of Parliament ends as a result of the expiration of the three-year term of the House of Representatives, sessions are terminated by the Governor-General on the advice of the government. The following actions by the Governor-General under the Constitution bring a session to an end: the dissolution of the House of Representatives (s. 5), the simultaneous dissolution of both Houses (s. 57), or the prorogation of the Parliament (s. 5). The period between the end of a session of Parliament and its next meeting at the commencement of the subsequent session is termed a “recess”.
This power of prorogation is inherited from the unwritten British constitution, and is closely associated with the monarchy. The monarch determines when the Parliament meets and may terminate its meeting by prorogation, which puts it out of session until summoned again, and quashes all legislative business pending before it. The historical rationale behind the power is that Parliament is only an advisory council to the monarch and meets only when the monarch requires advice. Much used by Stuart kings to dispense with rebellious parliaments, the power is now normally exercised on the advice of the prime minister.
As with other royal powers it is generally accepted that there are circumstances in which advice could be refused. For example, if a prime minister were to lose a party majority in the lower house and were to advise a prorogation simply as a means of avoiding a no-confidence motion and of clinging to power, the sovereign would be entitled to decline to act on the advice.
Leaving aside such circumstances, prorogation provides the executive government, the ministry, with a useful weapon to use against troublesome upper houses. It is most commonly invoked where the cessation of parliamentary business is convenient for a government. In December 2010, for example, the NSW Parliament was prorogued ostensibly to prevent an inquiry by a Legislative Council committee inquiring into the privatisation of electricity assets. The inquiry proceeded, however, and strongly criticised for its actions, the government lost office at the subsequent election. On the initiative of the incoming government, electoral legislation was amended to prevent prorogation of the Houses before a fixed date preceding an election.
In unusual circumstances in 2016, prorogation was used to terminate a session of Parliament in order for the Governor-General to summon the Parliament for a new session. It was thus an element of the mechanism used to force the Senate to meet to consider disputed bills and allow the conditions for simultaneous dissolutions to be met before the window of opportunity closed (see Chapter 21, Relations with the House of Representatives, under Simultaneous dissolutions of 2016). Advice tendered to the Governor-General drew attention to numerous prorogations earlier in the Senate's history and to particular parallels with events preceding the first simultaneous dissolutions in 1914. There were also some parallels with the events leading to the simultaneous dissolutions in 1974 which were preceded by a new session opened by the Queen. Whatever precedents could be marshalled to justify it, the 2016 prorogation was nonetheless regarded as controversial.
The potential for misuse of the power of prorogation adds significance to the question whether prorogation prevents the Senate meeting, a question which has arisen from time to time but which has not been conclusively determined.
In its first decades the Parliament was invariably prorogued before a dissolution of the House of Representatives, and it was the usual practice for a Parliament to be prorogued one or more times during its term, thus dividing it into two or more sessions. The Parliament was prorogued before the dissolution of the House in 1925 but the practice was then discontinued until 1993. During the period 1928-1990 proclamations dissolving the House of Representatives included a phrase purporting to discharge senators from attendance. This phrase had no constitutional basis and arose from a misunderstanding of the procedures and previous proclamations. In 1990 the Clerk of the Senate drew this fact to the attention of the Official Secretary to the Governor-General. Papers relating to this matter, including an opinion by the Solicitor-General, were tabled in the Senate on 14 August 1991. On the next occasion on which the House was dissolved, 8 February 1993, the Governor-General first prorogued the Parliament by proclamation, and on the same day issued another proclamation dissolving the House of Representatives. The practice of proroguing the Parliament before dissolving the House was also followed in 1996, but the dissolution proclamation did not contain the paragraph discharging senators from attendance. In 1998 the prorogation and the dissolution were combined in one proclamation, and the proclamations of 2001, 2004, 2010 and 2013 followed this form. In 2007 separate instruments were signed, with the prorogation and the dissolution on different days.
Questions arise as to whether the Senate or its committees may meet after a prorogation or a dissolution of the House of Representatives and before the Parliament is summoned to meet again.
The principal argument advanced against the Senate continuing to meet or exercise any of its powers after a prorogation or a dissolution of the House of Representatives is based on the concept that the Parliament is an organic whole which in some sense exists prior to its constituent parts. This view would have some validity if the Parliament was elected as a whole and then divided itself into two chambers (as was the case until 1991 in the Icelandic parliament and in the Norwegian parliament until 2009). In such a case the dissolution of the Parliament would necessarily entail that its subordinate parts cease to exist. Under the Australian Constitution, however, the three parts of the Parliament are constituted independently of each other by separate parts of the Constitution and a Parliament is formed from these basic constituents on the initiation of the Governor-General under section 5. In so far as prorogation prevents the Parliament as whole from operating it has the effect of temporarily suspending those powers and functions of the Parliament that require the coordinate actions of its constituent parts. A dissolution of the House of Representatives means that, for a period of time, one of the components of the Parliament ceases to exist and thus the Parliament cannot perform those functions for which all three parts are required, principally the enactment of legislation. There is no constitutional provision or doctrine, however, which would prevent the Senate from meeting for non-legislative purposes. Similarly, should an election for half the Senate be held when the House of Representatives is still in session there is no reason why the House could not meet. In the absence of one of the Houses, or of the Governor-General, the remaining parts of the Parliament may continue to exercise those powers and perform those functions which do not require the coordinate action of the other parts.
In support of this view, it is to be noted that it has been held that the Governor-General may exercise legislative powers after a prorogation. On 1 December 1910 the Governor-General assented to bills which had been passed prior to a prorogation on 29 November 1910. In opinion No. 3 of 1952, dated 23 May 1952, the Solicitor-General took the view that the royal assent may be given after prorogation. In an opinion dated 9 October 1984 (see below) the Solicitor-General stated:
I do incline to the view that the Constitution does not require that the Royal assent to Bills passed by both Houses be declared and given before the Parliament is prorogued, or the House of Representatives dissolved. Certainly this is not specifically required by section 58. Moreover, section 60, which provides for a proposed law reserved pursuant to section 58 for the Queen's pleasure, clearly embraces the situation that the Queen's assent may be furnished after the end of the session at which the proposed law is passed. The requirement that the Queen's assent be made known within two years is inconsistent with any inference that assent may be given only during a session of the Parliament. The decision of the New Zealand Court of Appeal in Simpson v Attorney-General (1955) N.Z.L.R. 271, 283, also is confirmatory of this view of the Crown function. It was held that section 56 of the New Zealand Constitution Act 1852 (which, together with section 59, is in analogous terms to sections 58 and 60 of our Constitution) enabled the Governor-General to assent to a Bill after the House of Representatives was dissolved; and there was no requirement for the House of Representatives to be in session at the time of the Royal assent.
Among the powers which the Senate may exercise and the functions which it may perform during recess or following a dissolution of the House are those of debating public affairs, inquiring (principally through its committees) into matters of concern, the presentation, publication and consideration of documents, and the disallowance of statutory instruments. In the absence of a House of Representatives to receive any bills initiated and passed by the Senate, the Senate could originate legislation for subsequent consideration and could consider and vote on legislation already passed by the House of Representatives.
An important argument in support of the Senate's powers in relation to meeting during recess and following a dissolution of the House of Representatives is that concerning the continuing nature of the Senate. The six-year terms of senators and the retirement of half the Senate every three years means that the Senate is a continuing body except on those occasions when it is dissolved simultaneously with the House of Representatives under section 57 of the Constitution. The continuing nature of the Senate is reflected in the standing orders and other orders of continuing effect.
Senate standing committees are appointed at the commencement of each Parliament and continue in existence until the eve of the opening of a new Parliament.
The Senate has not asserted its right to meet after a prorogation, but has regularly authorised its committees to do so and they have met accordingly. The Senate has asserted that it and its committees may meet after a dissolution of the House of Representatives.
As mentioned in Chapter 7, the generally accepted view is that a prorogation, as well as terminating a session, prevents the Houses of Parliament meeting until they are summoned to meet by the Governor-General under section 5 of the Constitution, or they meet in accordance with the proclamation of prorogation. According to this view, orders and resolutions which are not of continuing effect cease to have force and all business on the Notice Paper lapses and must be recommenced in the new session. Standing order 136 provides that bills which have lapsed as result of a prorogation may be revived in the following session provided that a periodical election for the Senate or general election for either House has not taken place between the two sessions.
While the Senate has not met at any time during which the House of Representatives was dissolved nor in the recess following a prorogation, Senate committees have often done so. The standing orders empower most standing committees of the Senate to meet during recess and some of the relevant provisions refer explicitly to the period of a dissolution of the House of Representatives. It is usual for Senate select committees to be given power to meet during recess and following dissolution of the House.
The Senate has asserted since 1901 the right to empower committees to meet during the recess which follows a prorogation. On 6 June 1901 the standing orders of the South Australian House of Assembly were adopted by the Senate on a temporary basis until it had drafted its own. These standing orders contained no specific mention of this matter but it appears to have been the practice for sessional committees of the Assembly that “deal with matters which require attention during the Recess” to be “appointed to act during the Recess”. Accordingly, on 6 June 1901 the Senate resolved to appoint a Library and a House Committee with the “power to act in the recess”. The Senate's own standing orders, adopted in 1903, provided the Library, Standing Orders and House Committees with “power to act during Recess”. The standing orders continued to grant these committees, and certain others, power to act during recess. Upon its establishment in 1932 the Standing Committee on Regulations and Ordinances was also given this power.
The power of the Senate to authorise committees to meet during recess may be regarded as deriving from section 49 of the Constitution, which provides that the powers, privileges and immunities each House, its members and committees shall, until Parliament declares otherwise, be those of the House of Commons in 1901. In an opinion dated 9 October 1984 and tabled in the Senate on 19 October, the Solicitor-General concluded that the “House of Commons in 1901 was empowered to authorise its committees to sit during a period of its prorogation”. This and related opinions are further considered below. Procedural matters concerning committees fall within the scope of section 50(ii), which empowers each House to make rules and orders with respect to “The order and conduct of its business and proceedings either separately or jointly with the other House”. Opinion is divided as to whether this section also empowers the Senate to authorise committees to sit during recess. See, for example, the opinion by Professor Colin Howard, dated March 1973, and that of the Solicitor-General, dated 9 October 1984, referred to below.
In 1957 the Joint Committee on Constitutional Review, at the request of the Senate, was given power to sit during recess. The Leader of the House of Representatives, Mr Harold Holt, stated that the government had decided that:
... henceforth we shall have a session of the Parliament annually, and it being the desire, I think, of all members of the Parliament that committees such as the Constitutional Review Committee, which has a valuable public service to perform, should continue to function in any period of recess between the prorogation of one session of the Parliament and the formal opening of another, there is sound practical sense in the suggestion that these committees be enabled to continue during any such recess.
The minister observed that while committees of the House of Commons ceased to exist following prorogation, the situation in Australia required a different approach:
Although we follow quite regularly the rulings and practices of the House of Commons where they appear to accord with the needs of our situation in Australia, each Parliament, of course, has its own way to make and its own problems to resolve. ... We live in a practical and swiftly moving world, and although the prorogation may legally bring to an end a session of the Parliament, it is assumed that if we are to have a session annually the Parliament will go on and resume in a new session shortly after the New Year according to the kind of program that I outlined last week.
The House's accession to the Senate's request that the joint committee be granted power to meet during recess was in accordance with the spirit of the standing orders of the House of Representatives which provide certain standing committees of that House with such power.
The seven legislative and general purpose standing committees appointed by the Senate for the first time on 11 June 1970 were empowered by resolution “to meet and transact business in public or private session and notwithstanding any prorogation of the Parliament”. By then there was no doubt about the ability of the Senate to make such a provision. Senate committees have since then regularly met during prorogations, for private meetings and public hearings.
That certainty has also been reinforced by later House of Commons practice which demonstrates that the House does not regard prorogation as having any legal effect in a growing number of situations. While the traditional view was that prorogation brought all business to a halt, it was always the case that orders of the House of Commons had a life beyond the session if they so provided. For example, new committee standing orders agreed to on 1 December 1882 were to have effect until the end of the next session of Parliament; orders for the production of documents were also recognised as having a continuing character, whether explicitly or implicitly.
Given the limitations imposed by a joint resolution of 1704 on the creation by either House of the United Kingdom Parliament of new powers or privileges by “vote or declaration”, such relatively recent practices as the creation of select committees for the life of a Parliament by standing order, or the carrying over from one session to another of public bills by standing order can only be viewed as being within the scope of known powers and customs, given that there has been no legislative expansion of House of Commons powers in the meantime. Thus Blackmore's drafting of standing orders authorising committees to meet during recess following a prorogation, based on South Australian practice and necessity, was no mistake but a reflection of contemporary House of Commons thinking.
Dissolution of the House
As has already been noted, Senate standing committees are empowered to meet during recess, and this includes the period of a dissolution of the House of Representatives. The empowering provisions for some committees explicitly refer to the period of a dissolution of the House. This form of words was first adopted in 1973 in respect of the legislative and general purpose standing committees, to make it clear that “recess” includes a period of dissolution of the House. This positive assertion by the Senate of the right to have its committees meet during the period of a dissolution of the House reflected a need for the newly-expanded committee system of the Senate to continue to function in an election period.
In the 1970s the standing committees frequently held meetings, including public hearings, after the dissolution of the House of Representatives.
On 19 October 1984 Senator Tate, the Chairman of the Senate Select Committee on Allegations Concerning a Judge, tabled papers relating to the power of the Senate or its committees to meet after a dissolution of the House of Representatives or a prorogation of the Parliament, and the publication of a committee report when the Senate is not sitting. The circumstances were that the dissolution of the House of Representatives was scheduled for 26 October 1984 and the committee's report was not expected to be completed by that date. The papers tabled on 19 October 1984 were:
In the matter of the Power of the Senate or its Committees to sit after Dissolution or Prorogation — Opinion by the Solicitor-General, Dr G. Griffith, dated 9 October 1984.
The Power of the Senate or its Committees to meet after a Dissolution of the House of Representatives or a Prorogation of the Parliament, and the publication of a Committee Report when the Senate is not sitting — Paper by the Clerk-Assistant (Committees), Mr Harry Evans.
Attached to the documents was a brief summary of the opinions, which read:
SUMMARY OF PAPERS
1. Opinion dated 9 October 1984 of the Solicitor-General:
This opinion concludes that —
- the Senate may not meet after a prorogation, which has the effect of terminating a session and preventing Parliament, as an organic whole, from functioning;
- the Senate likewise may not meet after a dissolution of the House of Representatives, which also has the effect of preventing the Parliament from functioning;
but concludes that —
- the Senate has the power to authorise its committees to meet after a prorogation or dissolution of the House of Representatives, because this is one of the powers of the House of Commons adhering to the Senate by virtue of section 49 of the Constitution.
2. Paper dated 18 October 1984 by Mr Harry Evans, the Clerk-Assistant (Committees):
This paper concludes that —
- it is wrong to equate a dissolution of the House of Representatives with a prorogation, and the Senate and its committees may meet after a such dissolution;
- in any case, the Senate and its committees may meet after a prorogation;
- it is not tenable to maintain that the Senate committees may meet during a period during which it is claimed that the Senate may not meet: if Senate committees may meet after prorogation, the Senate also may meet; and
- the Senate may authorise, in advance of their receipt, the publication with absolute privilege of reports of its committees, because —
- this is in accordance with the Parliamentary Papers Act; and
- the power to authorise the publication of any document with absolute privilege is one of the powers of the House of Commons adhering to the Senate by virtue of section 49 of the Constitution.
Each of these documents supported the conclusion that the publication of the report of the Select Committee on Allegations Concerning a Judge in accordance with the resolution appointing the committee would be absolutely privileged. The report was subsequently published and there was no challenge of any sort to its absolutely privileged nature.
Following the tabling of the papers, Senator Georges requested the tabling by the President of any further opinions received on this matter, either by the President or by any other committee of the Senate. In response to the request, the President (Senator Douglas McClelland) tabled the following papers:
Senate and its Committees: — Powers to meet after prorogation or dissolution —
Letter from the Attorney-General (Senator Greenwood) to the President of the Senate (Senator Cormack), dated 24 October 1972. Opinion concludes that Senate committees cannot lawfully continue to meet and transact business during the period from a dissolution of the House of Representatives to the re-assembly of Parliament in the next session. Also clear, in the Attorney's view, that the Senate itself cannot sit during that period.
Opinion by Mr R.J. Ellicott, when Commonwealth Solicitor-General. Opinion concludes that, on dissolution by proclamation of the House of Representatives, neither the Senate nor its committees have power to meet until Parliament is called together following the general election.
Opinion by Professor Colin Howard, University of Melbourne, dated March 1973. General conclusion that the Senate and its committees may sit and function during the period from a dissolution of the House of Representatives to the meeting of Parliament in the next session and during periods of prorogation of Parliament.
Opinion by Professor G Sawer, Australian National University, dated approximately 1969. Opinion contends that once the House of Representatives is dissolved under section 5 of the Constitution, the “Parliament” ceases to exist and so does the possibility of the Senate continuing to function as an independent and separate entity until a “Parliament” is again in session pursuant to the appointment of a time by the Governor-General under section 5.
On the next sitting day, 22 October 1984, the Deputy Leader of the Opposition in the Senate (Senator Durack) moved:
That the Senate declares that where the Senate, or a committee of the Senate which is empowered to do so, meets following a dissolution of the House of Representatives and prior to the next meeting of that House, the powers, privileges and immunities of the Senate, of its members and of its committees, as provided by section 49 of the Constitution, are in force in respect of such meeting and all proceedings thereof.
The motion was agreed to after debate, and without division. The Attorney-General (Senator Gareth Evans) argued that there were very strong legal doubts whether the Senate can in fact meet after a dissolution of the House of Representatives and continue, while so meeting, to enjoy the powers, privileges and protections normally available to it.
The Senate did not meet following the dissolution of the House of Representatives on 26 October 1984 but between that time and the opening of the next session of Parliament on 21 February 1985, there were private meetings and public hearings of several Senate committees.
Since that time the Senate has not met after a dissolution of the House, but Senate committees have regularly done so for the purposes of private meetings and public hearings.
The Senate and the ministry
Section 1 of the Constitution provides that the Parliament consists of the monarch, the Senate and the House of Representatives. The titular head of the executive government is therefore also part of the legislature and joins in the exercise of the legislative power. The monarch's powers and functions are in effect delegated to the Governor-General (s. 2) whom the monarch appoints, usually for a term of five years, on the advice of the government; in practice the appointment is controlled by the prime minister.
Section 61 of the Constitution vests the executive power of the Commonwealth in the Governor-General representing the monarch, but in practice that power is exercised by ministers appointed by the Governor-General, who are members of the Federal Executive Council, an advisory body to the Governor-General, and who are required to be members of the Senate or the House of Representatives (ss 62 to 64). This latter requirement is the only reference in the Constitution to the practice of responsible or cabinet government, under which the ministry holds office so long as it retains the confidence of the House of Representatives. In practice this means that the prime minister is the leader of the party or coalition of parties which holds a majority in that House, and the other ministers are members of that party or coalition nominated by the prime minister or selected by the party or coalition. Through its party majority, the ministry controls the House of Representatives.
The tenure of office of the ministry is therefore not directly affected by the composition or actions of the Senate, and the party forming the ministry has not normally had a majority in the Senate. Ministers individually and the ministry collectively, however, are required by the Senate to be accountable to the Senate for their policies and their conduct of the executive government. This accountability to the Senate is provided for in the procedures of the Senate, and is imposed through questioning of ministers, examination of government legislative proposals, and inquiries into government activities.
Ministers in the Senate
The Constitution vests the executive power of the Commonwealth in the Governor-General as the monarch's representative (s. 61). In practice the Governor General acts only on the advice of the government, which is formally tendered through the Executive Council, of which all ministers are members. Parliamentary secretaries (see below) are also appointed to the Council.
Ministers are appointed by the Governor-General on the advice of the Prime Minister. The Constitution requires that no minister “shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives” (s. 64). The number of ministers and the maximum amount of funds that can be appropriated to cover their salaries is prescribed, under sections 65 and 66 of the Constitution, by the Ministers of State Act 1952 as amended.
Traditionally the Prime Minister and the Treasurer are members of the House of Representatives. When Senator John Gorton became Prime Minister consequent upon his election to the position of leader of the Liberal Party on 10 January 1968 he sought to become a member of the House of Representatives as soon as practicable. He resigned from the Senate on 1 February 1968 and was elected as member of the House of Representatives on 24 February 1968.
Although there are no constitutional or statutory requirements that any ministers be members of the Senate, all governments since federation have appointed senators to the ministry. In recent decades senators have usually comprised approximately one quarter to one third of the ministry.
From time to time the proposition has been advanced that there should be no ministers in the Senate, the argument being that the Senate is not the House which determines the composition of the government, the Senate's role should be one of review and the presence of ministers inhibits that role. For example, on 22 February 1979 Senator Hamer moved:
- That, in the opinion of the Senate —
- Senators should no longer hold office as Ministers of State, with the exception of any Senator holding the office of Leader of the Government in the Senate, who, in order adequately to represent Government priorities to the Senate, should remain a member of the Cabinet; and
- Chairmen of the Senate's Legislative and General Purpose Standing Committees should be granted allowances, staffs and other entitlements similar to those currently granted to Ministers other than Ministers in the Cabinet. ...
This motion was debated but not resolved. Notice of a similar motion was given by Senator Rae. It remained on the Notice Paper until 16 December 1982 but it was not moved and not debated. Such a change might well strengthen the Senate's role as the house of legislation and review, as distinct from the electoral college role of the House of Representatives of determining the party composition of the government. Unless the major parties agree not to appoint ministers in the Senate, which is unlikely, the change could come about only by a constitutional amendment.
On the other hand, the presence of ministers in the Senate provides a direct line of accountability by the executive to the Senate.
In the chamber, ministers occupy front seats on the right of the President.
Procedural rights of ministers
The Senate's procedures give ministers certain exclusive powers, most of which are concerned with the management of government business. The standing orders provide that ministers may:
- arrange the order of their notices of motion and orders of the day on the Notice Paper as they think fit
- move a motion connected with the conduct of the business of the Senate at any time without notice
- move that a bill be declared urgent and, if the motion is agreed to, move further motions concerning the time allocated for consideration of the bill
- move at any time that the Senate adjourn
- move for the adjournment of a debate after having spoken in that debate
- move that the question be now put on more than one occasion, and after having spoken in the debate
- present documents
- present a message from the Governor-General at any time, but not during a debate or so as to interrupt a senator speaking.
Ministers may authorise senators who are not ministers to exercise these powers on their behalf.
Ministers may be asked questions relating to public affairs at question time. Committees examining the estimates may ask ministers for explanations concerning items of proposed expenditure.
A document relating to public affairs quoted by a minister may not be ordered to be laid on the table, if the minister states that the document is of a confidential nature or should more properly be obtained by address.
Ministers in the Senate represent one or more ministers who are members of the House of Representatives for the purposes of answering questions without notice, tabling documents and taking charge of bills. Conversely, Senate ministers are represented in the House of Representatives by a minister who is a member of that House. These representational arrangements are determined by the government.
Parliamentary secretaries or assistant ministers
Some members of the Senate are appointed by the government to assist ministers in their work. Designated by statute as parliamentary secretaries, persons who perform similar functions have been known by a variety of designations, including parliamentary under-secretary and assistant minister.
Parliamentary secretaries are now appointed under an amendment made in 2000 to the Ministers of State Act 1952, which prescribes the number of ministers under section 65 of the Constitution. The statutory provision provides for them to be appointed as ministers, but without that title or status. The purpose of this paradoxical provision is to allow them to be paid salary for the office without incurring disqualification under section 44(iv.) of the Constitution, which prevents members of either House holding an office of profit under the Crown, excepting only ministers.
Before the 2000 provision, parliamentary secretaries were appointed under the Parliamentary Secretaries Act 1980, and were not paid any remuneration of office but were reimbursed for expenses.
Since 1990, when the practice of appointing parliamentary secretaries was resumed, at least one senator has always been included in their number.
In September 2015, the title of assistant minister was revived under a new Prime Minister, although those holding the office were sworn in as parliamentary secretaries under the Ministers of State Act.
The first assistant minister to be appointed in the Senate was Senator E J Russell, who held that office during 1914-16. As assistant minister, Senator Russell answered questions (without notice and upon notice), laid papers on the table, initiated and controlled the passage through the Senate of legislation, moved other motions, and generally did all those things which a minister representing another minister in the other House does in the Senate. No special resolution or changes in the standing orders were made to enable Senator Russell to discharge the functions of a minister.
The legal status of parliamentary secretaries and the extent of their powers was the subject of debate on a number of occasions in the past; for further details see the report of the Senate's Standing Committee on Constitutional and Legal Affairs on The Constitutional Qualifications of Members of Parliament.
A continuing order of the Senate authorises parliamentary secretaries to exercise the powers and perform the functions conferred upon ministers by the procedures of the Senate, but they may not be asked or answer questions which may be put to ministers under standing order 72(1), or represent a Senate minister in respect of that minister's responsibilities before a committee examining the estimates.
The history of this order is as follows. The Parliamentary Secretaries Act 1980 did not define the powers or duties of a parliamentary secretary and thus did not settle the question of the extent to which senators appointed to such offices could exercise the powers and functions conferred upon ministers by the procedures of the Senate. In a statement to the Senate on this matter in June 1991, President Sibraa gave consideration to the question of whether secretaries could answer questions without notice on behalf of ministers and whether they could represent ministers at estimates committees. On 3 September 1991 the Senate adopted the following sessional order:
That any Senator appointed a parliamentary secretary under the Parliamentary Secretaries Act 1980 may exercise the powers and perform the functions conferred upon ministers by the procedures of the Senate, but may not be asked or answer questions which may be put to ministers under standing order 72(1).
During his term as Parliamentary Secretary to the Treasurer, 4 April 1990 to 24 March 1993, Senator McMullan appeared before estimates committees in place of the Treasurer and the Minister for Finance. On 6 May 1993 the Senate adopted a sessional order which contained, in addition to the provisions included in the order quoted above, a prohibition on parliamentary secretaries representing ministers before committees considering estimates. The order was made permanent on 11 November 1998. This prohibition was subsequently relaxed to allow parliamentary secretaries to represent ministers other than Senate ministers in relation to the latter's own responsibilities.
As the order applies to any sentor appointed a parliamentary secretary under the Ministers of State Act, it therefore applies to those parliamentary secretaries appointed as such from September 2015 but known by the alternative title of assistant minister.
Questions to ministers
At the time specified in the routine of business, questions without notice may be put to ministers relating to public affairs. Provision is also made for questions on notice, that is, questions put and answered in writing. Although questions may also be put to the President of the Senate, they are mainly used to obtain information from the ministry, and are therefore dealt with in this chapter. Questions to chairs of committees and other senators who are not ministers were abolished in 2009.
Questions without notice: question time
Question time for questions without notice occurs at 2 pm on each sitting day.
Time limits are imposed on questions and answers at question time. Standing order 72(3) provides that:
- The asking of each primary question shall not exceed one minute and the answers to them shall not exceed two minutes;
- Two supplementary questions shall be allowed to each questioner, each supplementary question shall be limited to thirty seconds and the answers to them shall be limited to one minute each.
- Answers shall be directly relevant to each question.
The current procedures were first adopted as temporary orders in November 2008, as subsequently modified, and re-adopted on several occasions before becoming permanent in 2014.
While standing orders give senators the right to ask questions of ministers there is no corresponding obligation on those questioned to give an answer. President Baker ruled on 26 August 1902 that there was “no obligation on a minister or other member to answer a question”, and in 1905 he ruled: “It is a matter of policy whether the Government will answer a question or not. There are no standing orders which can force a minister or other senator to answer a question”. Other presidents have stated that answers are “optional” or “discretionary” and that, “There is no obligation on a minister to answer: he does so merely as a matter of courtesy”. These rulings relate to the conduct of question time and do not preclude the Senate taking some separate action to obtain the required information.
The standing orders prescribe no limit to the duration of questions without notice. In practice, about one hour is usually occupied by questions without notice, at the expiration of which time the Leader of the Government in the Senate or the minister at the table asks senators to put any further questions on the Notice Paper. As ministers are not obliged to answer questions without notice (see above), this effectively terminates question time for that day.
Before current practices were settled, senators occasionally suspended standing orders to move that question time be extended until a certain number of questions were answered. Senators still have on the Notice Paper contingent notices for the suspension of standing orders to that effect, but the advent of time-limited questions and answers has reduced the likelihood of stonewalling tactics to prevent sufficient numbers of questions being asked.
Although the government can end question time by asking that further questions be placed on notice, question time is an item in the Senate's routine of business, and, as such, cannot be dispensed with except by a decision of the Senate to alter the routine of business which explicitly or implicitly has that effect.
For the effect of censure motions on the duration of question time, see below, under Ministerial accountability and censure motions.
The chair seeks to call senators to ask questions so as to achieve an appropriate allocation of questions among parties and independent senators. By custom the chair observes an order for the allocation of questions agreed to by senators. In its second report of 1995 and again in its first report of 2014, the Procedure Committee endorsed the principle of proportionality, that is, that the allocation of questions between the various parties, groups and independent senators should be as nearly as practicable in proportion to their numbers in the Senate. The allocation of questions, however, is not governed by any rule of the Senate.
The Leader of the Opposition, when seeking to ask a question, is accorded priority over all other non-government senators. The call is given to senators who have not asked questions before calling any senator for a second time.
Supplementary questions were introduced in the Senate on the initiative of the chair. In 1973 President Cormack decided that, within reasonable limits, he would allow supplementary questions to elucidate an answer already given.
Supplementary questions must relate to or arise from the answer. It is not in order to ask a supplementary question to another minister. A supplementary question must be directed to the minister initially answering the question and when a minister has asked that a question be put on notice a supplementary question may not be asked.
In 1980 the Standing Orders Committee considered the question of whether senators ought to be allowed to ask supplementary questions in relation to answers which are given by ministers after the termination of question time. It was recommended that, if senators wish to ask further questions in relation to these deferred answers, they should do so either by asking leave to do so, when the answer is given, or by asking their questions in the normal way at question time on a subsequent day. The Standing Orders Committee's report was noted by the Senate.
On 14 April 1986 President McClelland made a statement concerning the use of supplementary questions. After noting that supplementary questions began in 1973, the President stated:
Since that time successive Presidents have consistently ruled that supplementary questions are appropriate only for the purposes of elucidating information arising from the original question and answer. They are not appropriate for the purpose of introducing additional or new material or proposing a new question, even though such a question might be related to the subject matter of the original question.
It is my impression that recently attempts have been made to extend the scope of supplementary questions by the use of what I would call doublebarrelled questions; the second, the supplementary question, being held back for asking, virtually irrespective of the answer to the original. I do not believe that is a proper use of the supplementary question procedure which I remind senators is completely within the control of the chair.
Supplementary questions were recognised in standing and other orders on the introduction of time limits on questions and answers in 1992 (see above). Two supplementary questions for each primary question are permitted under the standing orders currently in operation.
Questions on notice
Questions at question time are supposed to be without notice. The Standing Orders Committee, in a 1980 report, reviewed the long established practice of senators giving ministers informal advice prior to question time of the subject on which they proposed to ask questions, so that ministers might obtain information on those subjects. The committee considered that this was an acceptable practice, particularly in a chamber where ministers represent several ministries in addition to their own, and that it leads to a more satisfactory question time. The committee noted, however, that there was a distinction between this practice of giving informal advice of the subject of a question to be asked and the giving of written notice of the precise terms of a question calling for a detailed answer as provided for in the standing order dealing with questions on notice.
A question may be submitted on notice by a senator signing and delivering it to the Clerk, fairly written, printed, or typed. Notice may be given by one senator on behalf of another. The Clerk is required to place notices of questions on the Notice Paper in the order in which they are received.
Each question on notice is allocated a number and the text of the question is published in the Notice Paper. All questions which remain unanswered appear in the online version of the Notice Paper, in a database linked to the additional information section, and those that have remained unanswered for 30 or more days are noted.
A reply to a question on notice is given by delivering it to the Clerk, a copy is supplied to the senator who asked the question and the publication of the answer is authorised. A senator who has received a copy of a reply pursuant to this standing order may, by leave, immediately after questions without notice, ask the question and have the reply read in the Senate, but this procedure is seldom used.
A senator who asks a question on notice and does not receive an answer within 30 days may seek an explanation and take certain other actions.
This provision, first adopted on 28 September 1988, on the motion of Senator Macklin, provides:
If a minister does not answer a question on notice asked by a senator within 30 days of the asking of that question, and does not, within that period, provide to the senator who asked the question an explanation satisfactory to that senator of why an answer has not yet been provided:
- at the conclusion of question time on any day after that period, the senator may ask the relevant minister for such an explanation; and
- the senator may, at the conclusion of the explanation, move without notice 'That the Senate take note of the explanation'; or
- in the event that the minister does not provide an explanation, the senator may, without notice, move a motion with regard to the minister's failure to provide either an answer or an explanation.
If an explanation of the failure to answer questions within 30 days is not forthcoming when requested at the end of question time, the motion which is moved may be for any purpose, but is often a motion for an order for the answers and explanations to be tabled by a specified date. The procedure was first used by Senator Macklin on 23 November 1988 and has been frequently used since. The government has complied with orders made under this procedure to table answers by a specified date. On one occasion a minister was censured for the delay in answering.
A statement by a minister that an answer is being prepared, or that a question is under consideration, is not regarded as an explanation of failure to answer the question.
The practice of ministers leaving the chamber immediately at the end of question time has meant that on several occasions the relevant minister has not been present to give an explanation, despite prior warning being given by the senator who asked the overdue question on notice. Despite requests from the President the practice continued and on 17 April 1991 the Senate passed a motion expressing its “continuing concern at the lack of courtesy by Ministers in failing to attend the Chamber and to provide adequate reasons for failure to answer questions”.
If in response to a senator having asked for an explanation of failure to answer a question, an answer is immediately produced by a minister, it is not open to a senator to move the motions otherwise authorised by the order. The rationale of the order is to encourage ministers to answer questions, and once a question is answered the procedure in the order no longer operates in relation to the question.
On 16 June 1992, a senator took the unusual step of tabling by leave answers to questions on notice of which he had received copies, and then by leave moving a motion to take note of the answers and debating them.
Under standing order 74(5), the procedure applies also to questions on notice lodged during estimates hearings that remain unanswered after the day set by the relevant committee for answering the question.
When final answers to questions on notice have not been given before the Senate adjourns, government departments and agencies furnish replies in the usual manner to the Department of the Senate which forwards them to the senators concerned and publishes them in the questions on notice database linked to the Notice Paper.
One of the consequences of a prorogation of the Parliament is that all business on the Notice Paper lapses on the day before the next sitting. Thus, questions submitted before the prorogation and not answered before the next sitting need to be resubmitted in order to appear on the Notice Paper in the next session. The Department of the Senate writes to senators whose questions had not been answered, inquiring whether they wish to renew the questions when the Senate resumes. Ministerial departments are advised to answer questions outstanding at prorogation. If the Senate were to meet after a prorogation (see above) a Notice Paper would be issued containing the business before the Senate at the prorogation.
Questions on notice submitted after the prorogation and for which answers have not been received before the Senate sits again appear on the first Notice Paper of the new session with the annotation that notice was given on the first sitting day. For such questions the 30 days, within which ministers must provide an answer or explain why none has been given, is deemed to begin with the first day of the new session.
Rules for questions and answers
The basic requirements of questions and answers were stated by President Laucke to be:
- questions must relate to matters for which a minister is responsible
- questions and answers should be brief
- requests for statistical information should be placed on the Notice Paper and should not be sought on the floor of the chamber on any occasion
- quoting should be avoided, except to the degree necessary to make a question clear
- replies should be confined to giving information, and no debate should be entered into.
The following rules for questions are contained in standing order 73:
Questions shall not contain:
- statements of fact or names of persons unless they are strictly necessary to render the question intelligible and can be authenticated;
- ironical expressions; or
- hypothetical matter.
Questions shall not ask:
- for an expression of opinion;
- for a statement of the Government's policy; or
- for legal opinion.
Questions shall not refer to:
- debates in the current session; or
- proceedings in committee not reported to the Senate.
Questions shall not anticipate discussion upon an order of the day or other matter which appears on the Notice Paper.
The President may direct that the language of a question be changed if it is not in conformity with the standing orders.
These rules apply also to answers. For example, if a question may not ask for a legal opinion, it follows that an answer may not give one.
The rule concerning anticipation is not interpreted narrowly because, if it were, it could block questions on a wide variety of subjects. The practice is to allow questions seeking information regarding matters on the Notice Paper but which do not necessarily amount to anticipating discussion.
The rule that questions shall not refer to proceedings in committee which have not been reported to the Senate strictly refers to proceedings in committee of the whole, although the same principle has been applied to other committees. The prohibition, however, is not interpreted narrowly because, if it were, the rule might block questions on a wide variety of subjects under consideration by committees. The working rule is that senators should not be restricted from asking questions on subjects which may be under examination by a committee, provided that they do not refer to non public committee proceedings which have not been reported to the Senate. President Laucke stated:
The rules have never been so interpreted as to prevent from being answered a question about a particular area which may or may not have a direct bearing on an inquiry currently proceeding. Otherwise no questions could be asked in the Senate. An interpretation which is not too rigid has to be made in a situation like this.
The conduct of members of either House should not be reflected on in a question.
It is within the discretion of the President to direct that long and involved questions be placed on the Notice Paper. See also the section on Questions involving orders for returns, below.
In applying the rule that a question shall not ask for a statement of government policy, in most cases the chair leaves it to the minister to say whether a question involves a statement of government policy. However, it has been ruled that it is in order for a question:
- to seek an explanation of government policy;
- to ask a minister about the effects of a proposal on the minister's portfolio;
- to ask about the government's intentions and the reasons for those intentions;
- to seek clarification of a statement made by a minister.
A question which invites a minister to comment on the policies or actions of non-government parties is out of order unless the question seeks an expression of the government's intentions in some matter of ministerial responsibility.
On 16 February 1956, a senator asked a question without notice in which he made reference to the President of Indonesia and to the government of that country. President McMullin held that the remarks of the senator were not in order, and he ruled that, in the future, such questions must be expressed in terms of appropriate dignity and courtesy. This ruling was consistent with the practice in the British House of Commons. On 19 March 1974 President Cormack disallowed a question without notice on the ground that questions may not be asked, or terms used in debate, which reflect on a head of state of a friendly country. These rulings have no basis in the standing orders, have not been applied since that time, and do not reflect current practice.
The attachment of the names of persons to circumstances in questions, when only the circumstances need be mentioned, is not in accordance with the standing order.
The President may direct that the language of a question be changed if it is not in conformity with the standing orders.
With respect to questions on notice, the practice is as outlined to the Senate by President Givens on 25 September 1918: before questions are permitted to be placed upon the Notice Paper, they are examined by officers of the Senate, and anything which, in their opinion, is doubtful is referred to the President for decision. The President may direct the Clerk to alter any question so as to conform with the standing orders. If a question contains material which does not conform to the standing orders current practice is for an officer of the Senate to discuss the matter with the senator who submitted it. The problem is usually resolved at this point by the rephrasing or withdrawal of the question.
A question which does not comply with the rules may not be placed on the Notice Paper. On 10 April 1918, President Givens disallowed a proposed question upon notice by Senator McDougall because it contained statements and assertions and, in the opinion of the President, was not asked solely for the purpose of eliciting information. The President refused to allow the question to go on the Notice Paper. Soon after the meeting of the Senate, Senator McDougall moved dissent from the ruling of the President. The motion was negatived. During the debate, President Givens held that it was the duty of the President to protect the privileges of senators by preventing the asking of improper questions.
On 11 May 1950 President Brown ruled that “it is not permissible to quote from newspapers, books or periodicals when asking questions”. During the debate on an unsuccessful motion of dissent from this ruling the President stated: “At the moment it is competent for an honourable senator to ask a question based upon a newspaper article, but not to read an extract from the newspaper”. On 15 May 1969 President McMullin re-affirmed that questions may be based on newspaper reports, but that quotations are not in order. In 1971 President Cormack ruled:
I remind the Senate that it has been ruled on many occasions that, while questions may be based on newspaper or other reports, quotations are not in order. The purpose of questions is to obtain information. Questions should be brief so that as many as possible may be asked within the time allotted. I therefore reaffirm that Senators must frame their questions in such a way as not to contain quotations.
In practice the chair exercises a discretion and may allow a senator to make a quotation to the extent necessary to make the question clear.
Senators may amend their questions on the Notice Paper to clarify their terms.
Questions with or without notice are permissible only for the purpose of obtaining information, and answers are subject to the same limitation, that is, they are limited to supplying the information asked for by the questions. Questions would not only be in conformity with the standing orders, but would be more effective and telling, if they were confined to properly framed questions, and did not contain statements, assertions, allegations, insinuations and other extraneous material. In answering a question, a senator must not debate it. Thus an answer should be confined to giving the information asked for, and should not contain any argument or comments. An answer must also be relevant to the question. On 22 August 1973 President Cormack ruled that in answering a question:
the Minister should confine himself to points contained in the question with such explanation only as will render the answer intelligible. In all cases the answer must be relevant to the question.
However, should the Senate seek a full statement of a case, latitude is allowed to a minister in answering a question; but if it is desired to debate the matter, this should be done only on a specific motion.
In relation to relevance, the Procedure Committee in 1994 observed as follows:
It is clear that, in answering a question, a minister must be relevant to the question. It is for the President to make a judgment whether an answer is relevant to a question. If the answer is not relevant, the President requires the minister to be relevant.
Questions may be put to a minister relating to the public affairs with which the minister is officially connected, to proceedings pending in Parliament, or to any matter of administration for which the minister is responsible in a personal or representative capacity. This is an overriding rule: that a question must seek information, or press for action within a minister's responsibility. The chair will disallow any question where it is clear that it is not within a minister's responsibility. On 18 March 1976, President Laucke ruled that questions must relate to matters within ministerial responsibility. He allowed a question to be put to a minister on the understanding that the minister might reply only in so far as he considered it his responsibility in any area covered by the question. There are occasions, however, when it is difficult for the chair to decide whether a matter comes within ministerial responsibility; in such cases, according to President Young, “It is the right and responsibility of ministers in this chamber to decide who will answer questions and in whose area of responsibility a particular question lies”. It has been ruled that if no minister rises to answer a question it should be placed on the Notice Paper.
While questions may be asked about ministers' conduct as ministers, questions relating only to the affairs of ministers' spouses or relatives are not in order.
A minister may reply to a question relating to matters for which the minister is officially responsible in a personal or representative capacity and replies must be confined to those areas of responsibility. As has been noted, ministers must accept full personal responsibility for answers given on behalf of others, and ministers have been censured by the Senate on this basis. It has been ruled that it is not in order for a minister “to comment on how a State public servant administers the affairs of a State department”. President Sibraa ruled that if the Chair cannot detect any Commonwealth responsibility in an answer it is out of order.
It is not the responsibility of the chair to tell ministers how they should respond to questions: “That is purely a matter for Ministers, provided their answers are within the standing orders”. It is in order for a minister to answer part of a question without notice and ask that the remainder be placed on the Notice Paper. During question time on 18 March 1980, a senator moved that so much of the standing orders be suspended as would prevent a minister from giving the Senate a complete answer to a question. President Laucke ruled the motion not in order as at question time it was the prerogative of the minister to determine the manner in which he replied to a question. Later, and after question time had been concluded, a motion was proposed that so much of the standing orders be suspended as would prevent the moving of a motion that the minister request the Prime Minister for real and complete answers to certain questions; the motion was negatived.
It is also not for the chair to determine whether an answer is correct. Challenges to the accuracy of an answer should not take the form of a point of order.
Questions may not be directed to, or answered by, a parliamentary secretary in that capacity.
Declaration of interest
Neither the questioner nor a minister answering a question is required to declare an interest. Following a challenge to a minister to declare his interest in a matter on which he was providing an answer to a question without notice, President Sibraa ruled that senators do not need to declare an interest.
Sub judice matters
For an analysis of the principles which apply to questions concerning sub judice matters, see Chapter 10, Debate, under Sub judice convention.
Questions concerning statutory authorities
As has been noted, one of the fundamental rules of questions is that a minister may be asked only about matters for which the minister is officially responsible. As statutory authorities frequently operate with considerable autonomy, the question arises of the extent to which a minister can be expected to answer questions of detail concerning their activities, especially in relation to those authorities operating commercially. No ruling has been given from the chair, nor pronouncement of policy made by government, regarding questions relating to statutory authorities. It is now the practice for questions about such bodies to be directed to the relevant minister or the minister representing the relevant minister. The information sought is usually supplied.
For declarations by the Senate concerning accountability of statutory bodies, see below, under Statutory authorities and public interest immunity.
Questions concerning security matters
It has been the policy of successive governments that questions seeking information concerning the activities of ASIO or the Australian Secret Intelligence Service (ASIS) will not be answered. On 15 July 1975, in reply to a question on notice, the minister representing the Attorney-General stated that it is not the practice to give information relating to ASIO operations. In the debate on the Supply Bill (No. 1) 1976-77, a minister stated that it was the practice of governments not to answer questions on the appropriation of funds for ASIO. Officers of ASIO, however, now appear at estimates hearings and answer questions.
Questions involving orders for returns
It has been ruled that detailed information requiring considerable preparation should be sought by motion for a return under standing order 164, rather than by question upon notice. The rationale for these rulings is that because an order for a return must be approved by the Senate this procedure enables the Senate to consider whether the cost of preparing the information is justified.
See also the material on unanswered questions on notice, above, and Chapter 18, Documents, under Orders for the production of documents.
Additional responses to questions without notice
It is established practice for ministers at the end of question time to make additional responses to questions without notice. They then provide orally, or by incorporation in Hansard, information which they were unable to provide at the time the question was asked. Supplementary questions are not permitted in relation to such answers.
Motions to take note of answers
A motion may be moved without notice or leave at the conclusion of question time to take note of answers. A motion may relate to one or more of any answers given that day and a senator may speak for not more than five minutes on it. The total time for debate on all such motions on any day must not exceed 30 minutes, not including any time taken in raising and determining any points of order during the debate. Motions to take note of answers provide the Senate with an opportunity to debate answers which are regarded as unsatisfactory or which raise issues requiring debate.
A relevant amendment may be moved to a motion to take note of an answer, but an amendment to take note of a different answer is not a relevant amendment.
The history of this procedure is as follows. During 1992 the Opposition began to make increasing use of the device of moving by leave after question time motions to take note of answers given by ministers. On 14 September 1992 an attempt was made by the government to limit the time spent on motions to take note of answers to questions, by making the granting of leave for moving such motions conditional on the senator seeking the leave speaking for only two minutes. This condition was refused, and leave to move a motion was refused, but this resulted in a motion to suspend standing orders, on which senators can speak for five minutes with a total time limit of 30 minutes. After one such suspension motion was disposed of, leave was granted to move three further motions to take note of answers.
On the following day, 15 September 1992, the Manager of Government Business moved a special motion to limit debate on motions to take note of answers to two minutes per speaker and a total of 30 minutes. This motion was agreed to, with an amendment to extend the speaking time to four minutes, on 16 September 1992. This motion was expressed to operate for the remainder of the week. It appeared to have had the effect of increasing the number of motions to take note of answers, three such motions being moved on 16 September and five on 17 September. These procedures were agreed to again for the two sitting weeks in October and the first two sitting weeks of November. On 24 November 1992 the procedures, together with those concerning time limits to questions and answers at question time (see above) were renewed as sessional orders, and in February 1997 incorporated into the standing orders.
Ministerial accountability and censure motions
Governments are formed by the party or coalition of parties which can command a majority of votes in the House of Representatives, and ministers are appointed by the Governor-General on the advice of the leader of that party or coalition. The termination of a minister's appointment is likewise effected by the Governor-General on the advice of the Prime Minister. While ministers are neither appointed nor removed by the Senate, they are accountable to it and they are expected to account for their actions and policies by, for example, answering questions, providing documents, and appearing before committees. In 1984 the Senate demonstrated the importance placed on accountability when it censured a minister for, among other matters, “his refusal to explain his actions despite repeated questioning by the Senate”. Ministers have been censured for matters as varied as: misleading the Senate, failing to answer questions on notice within the stipulated time limit, maladministration of a department, attempting to interfere in the justice system of another country, failing to declare an interest in a matter, for “contemptuous abuse” of the Senate, for refusing to produce documents in compliance with an order of the Senate and for their treatment of statutory officers. The Senate has insisted on ministers accepting full personal responsibility for answers given on behalf of others, and ministers have been censured on this basis.
Although a resolution of the Senate censuring the government or a minister can have no direct constitutional or legal consequences, as an expression of the Senate's disapproval of the actions or policies of particular ministers, or of the government as a whole, censure resolutions may have a significant political impact and for this reason they have frequently been moved and carried in the Senate. They provide a substitute to the usual inability, because of ministerial control, of the House of Representatives to discipline a minister.
On 10 October 1996 the Senate passed a resolution calling on the Assistant Treasurer, Senator Short, and the Parliamentary Secretary to the Treasurer, Senator Gibson, to explain apparent conflicts of interest arising from their shareholdings. Those two office-holders subsequently resigned. House of Representatives ministers said to be in the same situation, however, escaped without sanction, and the Prime Minister then indicated that the code of ministerial conduct would be reviewed as it was too restrictive of ministers' private interests. This incident provided evidence of the thesis that ministers are held accountable in the Senate but not in the House of Representatives to which the ministry is supposed to be responsible.
Almost all such motions have been expressed in terms of censuring either individual ministers or the government. There have been no motions proposing want of confidence in the government and very few expressing want of confidence in particular ministers, none of which was successful. No motion of want of confidence in a minister has been proposed since 1979 and the practice now is to frame such motions in terms of censure.
Two censure motions adopted by the Senate in the early 1970s called for the resignations of those to whom they were directed. One case involved a minister, and in the other the government was called on to resign. The government took no action in either case. Only two of the unsuccessful censure motions moved since that time have included calls for resignation.
The Senate has passed motions of censure on ministers in the House of Representatives (see the list of successful motions below). Following the adoption of a censure motion against the Prime Minister in 1992 the Senate passed a motion that the censure resolution be communicated by message to the House of Representatives. On the day after the Senate's censure of a Senate minister in 1973 the House of Representatives, on the motion of the government and voting on party lines, passed a motion affirming confidence in that minister.
While there are no special provisions in the Senate standing orders concerning censure motions, it is the usual practice for such motions to be accorded immediate precedence or for the debate to be adjourned to a later hour the same day.
Censure motions are initiated either by giving notice of motion or, more commonly, a motion is moved pursuant to a contingent notice “that so much of standing orders be suspended as would prevent Senator (. . .) moving a motion to provide for the consideration of a matter, namely a motion to give precedence to a motion of censure of (. . . )”. Upon the adoption of the suspension motion another motion is moved to the effect that “a motion of censure may be moved immediately and have precedence over all other business this day till determined”. The censure motion is then moved. Censure motions have also been moved by leave.
A censure motion specifies the minister or other senator towards whom it is directed and states the reason for the censure. The following is a typical example of the form:
That the Senate censures the Minister for Resources and Energy (Senator Walsh) for his deliberate misleading of the Senate by selective tabling of documents and his refusal to explain his actions despite repeated questioning by the Senate.
If a censure motion contains a number of propositions the question may be divided.
Motions of censure and want of confidence may be amended. For example, on 14 August 1968, in response to an Opposition motion “That the Minister for Repatriation lacks the confidence of the Senate”, the Leader of the Government in the Senate moved an amendment which proposed that the words after “That” be omitted and the following be inserted: “the Senate affirms its confidence in the integrity and propriety of the Minister for Repatriation in the discharge of his Ministerial duties. The Senate rejects the charge made against him of interference in decisions of a Repatriation Tribunal. Presentation of so serious a charge unsupported by acceptable evidence is a misuse of the forms of the Senate”. The Opposition raised a point of order that the proposed amendment was a direct negative of the motion and was therefore not in order. The Acting Deputy President, Senator Wood, ruled that the amendment was in order.
Censure motions have been directed at private senators.
It would not be proper for the Senate to seek to censure a private member of the other House. The Senate declared this principle in the context of a resolution granting permission for senators to appear before the House of Representatives Privileges Committee in an inquiry into unauthorised disclosure of joint committee documents. The President has declined to grant precedence to matters of privilege on the ground that the Senate may not inquire into the conduct of a member of the other House, and the same principle would apply to censure motions. This principle is apparently not observed in the House of Representatives. Ministers as ministers, however, may be censured, on the principle that as ministers they are accountable to the Senate although they are members of the House of Representatives.
Contingent notices have been given of censure motions directed at specified ministers. Following the censure of a minister for failing to table certain documents in compliance with an order of the Senate contingent notice was given of a motion which would allow certain penalties to be imposed on the minister, including preventing him from introducing bills. These contingent notices were not used.
Censure motions are not the only weapon in the Senate's armoury of accountability. They are often accompanied by inquiries by the Senate into ministerial conduct. A Senate inquiry into a matter of concern, or merely the prospect of one, can force a government to be more accountable. For example, following the resignation of the Minister for the Environment, Sport and Territories, Mrs Kelly, over the sports grants affair on 28 February 1994, the Opposition moved to establish a Senate select committee to inquire further into the affair and matters relating to government accountability. An amendment was moved to substitute for the select committee references to a series of measures designed to ensure greater accountability. A further amendment called for measures to strengthen the independence and capacity of the Auditor-General. Both sets of amendments and the main motion were negatived, the first amendment and the motion being negatived by equally divided votes. It was thought that a further motion for an inquiry would pass in the absence of some appropriate government action. The Leader of the Government in the Senate then made a ministerial statement outlining a number of measures which the government undertook to introduce, and to consider, to improve accountability mechanisms, including a replacement for the Audit Act.
Almost half of the censure motions proposed in the Senate since 1968 have been successful, and most of these have occurred since 1984. The following motions were adopted by the Senate.
- A motion that the Attorney-General (Senator Murphy) did not deserve the confidence of the Senate because of certain actions connected with alleged Croatian terrorism in Australia and the Australian Security Intelligence Organisation.
- A motion stating, inter alia, that “the Government's attempt to assert that Senator Gair had vacated his seat under section 44 or 45 of the Constitution on either 14 or 21 March 1974, and did not need to resign as originally intended, deserves the gravest censure and the Government should resign”.
- A motion stating that the Minister for Foreign Affairs (Senator Willesee) was deserving of censure and ought to resign because of certain matters relating to the departure from Australia of a Russian musician, the recognition of the Soviet incorporation of the Baltic States, and foreign policy alignments. The question was, by leave, divided, and the motion as it related to the Baltic States agreed to.
- The Minister for Resources and Energy (Senator Walsh) was censured for his deliberate misleading of the Senate by selective tabling of documents and his refusal to explain his actions despite repeated questioning by the Senate.
- A motion censuring the government for “ (a) its attack on the Senate's determination to exercise its Constitutional responsibilities; (b) proposing to force through a Joint Sitting legislation which it has admitted needs amendment; and (c) wasting taxpayers' money by persisting with legislation which would abuse personal privacy beyond limits acceptable to the principle of democracy and individual rights sacred to the Australian community”.
- A motion expressing “profound disapproval of the unparliamentary conduct” of the Minister for Finance (Senator Walsh) during the course of the debate on the appropriation bills.
- A motion condemning the government “for its failure to protect the privacy of Australian citizens”.
- The Minister for Resources (Senator Cook) was censured for improper alteration of the Hansard record of an answer he had given in response to a question without notice.
- The Minister representing the Minister for Defence (Senator Richardson) and the Minister for Defence were censured for their joint failure to provide an answer to a question on notice within 30 days.
- The government was censured for its mismanagement of an airline pilots' dispute.
- The government and its whips were censured for their actions in discouraging the formation of a quorum in the Senate.
- The Minister for Justice (Senator Tate) was censured for failing to meet the required standards in the conduct of his office as a senior law officer of the Crown, by interfering in the administration of justice in another country.
- Senator Richardson, in his former capacity as Minister for the Environment, was censured for his handling of the matter of payment of money under an agreement to a timber processing firm.
- The government was censured for “its unjustified failure to comply with the Senate's resolution of 10 September 1991” to table a tape recording.
- The Minister for Transport and Communications (Senator Richardson) was censured for allegedly misleading the Senate, attempting to interfere in the justice system of the Marshall Islands, and failing to declare an interest as a minister.
- The Prime Minister was censured for remarks which he had made about the Senate, which were characterised as contemptuous abuse. The Senate also adopted a motion that the censure resolution be communicated by message to the House of Representatives.
- The Leader of the Government in the Senate (Senator Evans) was censured for refusing to comply with an order of the Senate to produce a document. The minister had declined to produce the document on the grounds of confidentiality.
- The Minister representing the Minister for Administrative Services, Senator McMullan, and the Minister for Administrative Services, Mr Walker MP, were censured for not complying with an order of the Senate to provide documents. The ministers had not provided the information requested on the grounds of commercial confidentiality. On 8 and 9 June 1994 contingent notices of motion were given which, noting that despite the censure the documents had still not been provided, allowed for the imposition of “penalties” on the Minister for Trade, Senator McMullan, including preventing him introducing bills.
- The Minister for Transport, Mr Brereton MP, was censured for his negligent administration of air safety.
- The Prime Minister, the Leader of the Government in the Senate, Senator Gareth Evans, and the Minister for Primary Industries and Energy, Senator Collins, were censured for misleading statements about the intended application of Aboriginal land funds and entering into a secret agreement contrary to their public statements about the matter.
- The Minister for Communications and the Arts, Mr Lee, and his Senate representative, Senator McMullan, were censured for failure to produce a document in response to an order of the Senate.
- The Minister representing the Attorney-General, Senator Bolkus, was declared to be in contempt for failure to produce documents ordered by the Senate to be produced.
- The Leader of the Government in the Senate, Senator Gareth Evans, was censured for remarks impugning the integrity of a Western Australian royal commissioner and the counsel assisting the commission.
- The Minister for Aboriginal Affairs, Senator Herron, was censured for giving misleading answers in relation to funding of Aboriginal programs.
- The Leader of the Government in the Senate, Senator Hill, was censured for not responding properly to an order for documents relating to the Jabiluka uranium mine.
- The Minister for Forestry and Conservation, Mr Tuckey, was censured for inflaming rather than mitigating the conflict over Western Australia's regional forest agreement.
- The Minister for Family and Community Services, Senator Newman, was censured for failing to produce a document on proposed welfare changes in response to an order of the Senate.
- The Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, was censured for failure to fulfil his ministerial responsibilities and provide leadership in indigenous affairs.
- The Parliamentary Secretary to Cabinet, Senator Heffernan, was censured for recklessly making unsubstantiated allegations against a justice of the High Court, and the Prime Minister was censured for not preventing Senator Heffernan's actions.
- The government was censured for deploying Australian troops to Iraq without United Nations authorisation and without revealing to the Australian people the commitments on which the deployment was based.
- The Prime Minister was censured over the Iraq war and the lack of evidence of the claimed weapons of mass destruction in Iraq.
- The Leader of the Government in the Senate, Senator Hill, was censured for failing to comply with an order for the production of documents relating to the pressure allegedly exerted upon the Commissioner of the Australian Federal Police, Mr Keelty, to change his statement on terrorism and the war in Iraq.
- The Leader of the Government in the Senate, Senator Hill, was censured for failing to take seriously his responsibility in relation to the abuse of prisoners in Iraq and to correct serious communications problems in his office and the Defence Department contrary to assurances which were given after the “children overboard” affair of 2001-02.
- The Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, was censured for her failure to take responsibility for the manifest failures of her department in relation to detained persons.
- The government was censured for systematic failures in the delivery of climate change programs, including home insulation, green loans, solar rebates, renewable remote power generation and renewable energy targets.
- The Attorney-General, Senator Brandis, was censured for his dealings with the President of the Australian Human Rights Commission, Professor Triggs.
In 1995, a censure motion was not proceeded with when the minister concerned apologised for her actions.
In June 2000, in passing a bill which was regarded as essential to the public interest, the Senate adopted a resolution noting the persistent failure of the Minister for Regional Services, Territories and Local Government, Senator Ian Macdonald, to answer questions relevant to the bill.
Although two of the motions listed above were not couched in terms of censure or want of confidence they had the same import as a censure motion. The motion passed on 19 November 1987 expressed “profound disapproval” of a minister's behaviour, and the motion passed on 24 February 1988 stated that the Senate “condemns” the government. For the same reason, an unsuccessful motion proposing that Senator Greenwood had “dishonoured the office of Attorney-General” is included in the list of unsuccessful censure motions.
Unsuccessful motions of censure or want of confidence have been moved on numerous occasions.
On several occasions unsuccessful amendments have been proposed to the address-in-reply, seeking to include an expression of censure or regret.
If a censure motion is moved before or during question time, questions are usually called on or resumed in accordance with the routine of business. A minister may ask for questions to be placed on notice, but it is open to the Senate to order that questions continue.
Orders to ministers and public interest immunity claims
The inquiry powers of the Senate discussed in Chapter 2, Parliamentary Privilege, and Chapter 17, Witnesses, encompass the power to order information from ministers. Standing order 164 provides the mechanism for such orders to be communicated to the executive government, as well as a means of following up returns that are overdue. Much used in the Senate's early years to obtain routine information that was not then otherwise available, the practice fell into disuse during the middle decades of the twentieth century before its revival in the 1960s in association with episodes of suspected government dissembling.
On 16 July 1975, the Senate reasserted its inquiry powers in relation to ministers and officers of the executive government in a powerful resolution agreed to in the context of the Whitlam Government's overseas loans scandal:
- 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.
- 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.
- 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.
- 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.
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.
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, in providing that witnesses may raise objections to the giving of evidence, 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. However, this position has been somewhat undermined by recent amendments to strengthen freedom of information legislation including by identifying factors favouring access.
For many decades, the Senate has dealt with executive government claims of public interest immunity on a case by case basis, building up a body of precedent and practice but refraining from conceding any ground on its right to determine such claims.
For their part, committees have been consistently advised that they should not issue a formal demand for witnesses to attend, give evidence or produce documents unless they intend, in the face of refusal, to ask the Senate to enforce the demand and unless they are reasonably confident that the Senate will support the demand. This approach means that the question of the existence of executive privilege or public interest immunity in relation to parliamentary inquiries is unlikely to lead to any opportunity for the question to be adjudicated by 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.
Public interest immunity in the courts
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  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.
The attitude of the courts changed in 1968 when the House of Lords held, in Conway v Rimmer  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.
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”. 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”. 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.
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.
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.
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.
In 1984 the High Court ordered the production of Australian Security and Intelligence Organisation (ASIO) documents for its inspection in a criminal trial. 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.
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”.
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.
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.
Development of methods for dealing with public interest immunity issues
Whether the courts should play a role in the adjudication of disputes between the Senate and the executive government was examined in 1994 in the aftermath of an inquiry by the Senate Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media. At issue was a claim of public interest immunity made by the then Treasurer, the Hon. Ralph Willis, in respect of certain classes of documents held by the Foreign Investment Review Board and requested by the committee. While there was no doubt that the committee had the power to compel the attendance of witnesses, the question for the committee was whether statutory office-holders could be directed by ministers in respect of their evidence and covered by public interest immunity claims made by ministers.
A comparable situation had arisen in 1974 during the “overseas loans case” which had led to the Senate's resolution of 16 July 1975, quoted above. In that case, the Solicitor-General, a statutory officer and one of the witnesses summoned to appear at the bar of the Senate, 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 act in such a way as to undermine it. He declined to answer questions on that basis and the Senate took no action against him, or the other public servants who had been directed not to answer questions, resolving instead that the solution to such matters was for the Senate to determine.
In the wake of the Print Media inquiry, Senator Kernot (Leader of the Australian Democrats, Queensland), on 23 March 1994, presented a bill to amend significantly the law of parliamentary privilege. Senator Kernot successfully moved that the bill, the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994, be referred to the Committee of Privileges for examination. The preamble to the motion of referral noted that:
- on several recent occasions the government has failed to comply with orders and requests of the Senate and its committees for documents and information, in particular:
- the order of the Senate of 16 December 1993 concerning communications between ministers on woodchip export licences,
- requests by the Select Committee on the Australian Loan Council for evidence, and
- requests by the Select Committee on Foreign Ownership Decisions in Relation to the Print Media for documents and evidence;
- the government has, explicitly or implicitly, claimed executive privilege or public interest immunity in not providing the information and documents sought by the Senate and its committees;
- the grounds for these claims have not been established, but merely asserted by the government;
- the Senate has no remedy against these refusals to provide information and documents, except its power to impose penalties for contempt;
- the Senate probably cannot impose such penalties on a minister who is a member of another House;
- it would be unjust for the Senate to impose a penalty on a public servant who, in declining to provide information or documents, acts on the directions of a minister;
- there is no mechanism for having claims of executive privilege or public interest immunity adjudicated and determined by an impartial tribunal ...
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. The committee considered that such claims should continue to be dealt with by the House concerned.
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 also 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”.
What form “such action within its powers” should take was a question that would engage the Senate periodically as it grappled with the merits of an established mechanism for adjudication of public interest immunity claims against the attraction of a more pragmatic case by case approach.
The development of a more systematic approach to the adjudication of disputed public interest immunity claims has occurred in the context of the rejection of the Kernot bill and the recognition of the Senate's powers (and apparently continuing preference) to resolve disputes without recourse to the courts. Some of those developments are now noted.
Following presentation of the Privileges Committee's 49th report, Senator Kernot gave notice of a motion to establish a committee of party leaders to deal 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. The leaders' committee was required 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. The motion remained on the Notice Paper and was not considered.
The idea of independent arbitration continued to surface from time to time. The Privileges Committee in its 52nd report commended the use of an independent arbiter to evaluate claims of executive privilege against public interest criteria, noting that in the particular case of refusal to provide the Senate with documents about government property leases on commercial confidentiality grounds, the dispute had been appropriately adjudicated by the Acting Auditor-General.
In two cases involving disputes between senators and police forces over material seized from the senators' offices pursuant to search warrants, independent legal counsel examined the material and determined which components of the material, if any, were covered by parliamentary privilege and immune from seizure.
As one outcome of an inquiry in 1998 by the Finance and Public Administration References Committee into the contracting out of government services, the Senate agreed to an order of continuing effect for the production of information about contracts entered into by government agencies and whether they contained inappropriate confidentiality provisions, with the Auditor-General to review a selection of such contracts at regular intervals to assess progress in reducing the number of inappropriate claims. The order, as amended, remains in place with the Auditor-General now producing biennial reports.
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. 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.
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. 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. 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. Although it took some time for the resolution to be observed, it is now referred to in the latest version of the government's guidelines for official witnesses appearing before parliamentary committees, and is quoted in chairs' opening statements at each round of estimates hearings. Along with a subsequent resolution, the Clerk is required to draw it to the attention of all agency heads before each round of estimates.
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, a proposed order for the independent arbitration of public interest immunity claims by ministers was referred to the Finance and Public Administration References Committee. The committee examined the arrangements adopted by the NSW Legislative Council for third party arbitration for disputes between the executive and the legislature, implemented in the wake of the Egan cases, procedures also adopted by the Victorian Legislative Council but not yet used. The committee's report did not at that time support the proposed process for third party arbitration.
Subsequently, however, agreements on parliamentary reform struck at the commencement of the 43rd Parliament included a commitment to implement a system of independent arbitration for disputed public interest immunity claims. Efforts during that Parliament by the Opposition to obtain economic modelling and other details of the Government's proposed mining and carbon taxes led to a number of orders directed to the Australian Information Commissioner to examine the claims for immunity and make a report to the Senate, possibly in an attempt to hasten the fulfilment of commitments to a mechanism for independent arbitration. The orders were resisted but were considered by the Privileges Committee in the context of an inquiry into guidance for officers giving evidence to committees or providing information to the Senate and senators. The committee observed that, viewed in their proper context as orders for the production of documents, the orders were an emanation of the Senate's inquiry power, applicable to statutory officers in the absence of any express statutory limitation on parliamentary privilege, and to be responded to in accordance with established practices:
5.29 If officers to whom orders for documents are directed are unable or unwilling to comply with a requirement to produce information, they should report that fact to the Senate, providing reasons, and allow the Senate to determine for itself how to respond. This is consistent with the Senate resolution on public interest immunity claims and the principles which support that process. This is also no different in principle than the response expected of a witness before a Senate committee who is unable or unwilling to answer a question.
5.30 It is for the Senate then to determine how it will respond to a refusal to meet such an order, and that determination necessarily depends on the circumstances of the particular matter.
While this element of the parliamentary reform agreements was not implemented, the mechanism for independent arbitration remained as an option and was canvassed during an inquiry by the Legal and Constitutional Affairs References Committee in 2014 into a claim of public interest immunity raised over documents relating to the Government's border protection activities.
An outcome of that inquiry was a further reference to the Procedure Committee to re-examine the use of independent arbitration to resolve disputed claims to documents and, in particular, whether the mechanism used by the NSW Legislative Council could be adapted to the needs of the Senate. The Procedure Committee reported that it had considered the NSW procedures but had concluded, for a number of reasons, that they were not readily adapted to the Senate and that the Senate's current procedures which involved a range of solutions were preferable. The committee did not reject the possibility of third party arbitration or assessment in the right circumstances, but considered that such a procedure should not be a remedy of first resort. The committee issued some guidance for ministers in responding to orders for production of documents, and proposed to monitor responses to them.
In the meantime, in June 2014, in the context of continuing resistance by ministers and officers to the provision of adequate responses to questions asked at estimates hearings, the Senate reaffirmed previous resolutions on the responsibility of officers to account for their stewardship of public funds in the following terms:
That the Senate—
- the principle, stated previously in resolutions of 9 December 1971, 23 October 1974, 18 September 1980, 4 June 1984, 29 May 1997 and 25 June 1998, that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees unless the Parliament has expressly provided otherwise, and
- its expectation that officers, including agency heads, will appear before committees in fulfilment of their accountability obligations, whenever their presence is requested by committees;
- in relation to the provision of exceptions to the general principle reaffirmed in paragraph (a), notes and reaffirms:
- Privilege Resolution 1(16) which provides that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister,
- the resolution of 16 July 1975, relating to the powers of the Senate and the accountability of witnesses, and requiring any claim to withhold information from the Senate to be based on an established ground, and
- the order of 13 May 2009 setting out the proper process for raising public interest immunity claims;
- notes that:
- the statutory values which Australian Public Service agency heads and employees are required to uphold include a requirement to be open and accountable to the Australian community under the law and within the framework of ministerial responsibility, and
- the Constitutional framework of checks and balances under a separation of powers places the Parliament in prime position as the agent of accountability, representing the Australian people;
- calls on the Government to issue a general instruction to all public service agency heads and employees about their duty to cooperate with parliamentary committee inquiries, including by formalising the revised guidelines for official witnesses appearing before parliamentary committees (last issued in 1989), a revised draft of which was provided to the Committee of Privileges in 2012 and considered in its 153rd Report; and
- the chairs of legislation committees considering estimates to draw the provisions of paragraphs (a) and (b) of this resolution to the attention of any witness who declines to provide information to a committee on any basis other than those specified, and
- the Clerk to draw this resolution, and the resolutions referred to in paragraph (b), to the attention of the heads of all agencies appearing before legislation committees, prior to each round of estimates.
Although the table in Chapter 18 shows a decreasing compliance rate with orders for the production of documents, the response rate does not reflect the outcomes from subsequent action to pursue the information. 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 other cases, claims are not pursued and there is a tacit acceptance of the grounds advanced by ministers.
See below, under Remedies against executive refusal, for further discussion of solutions in particular cases.
Public interest immunity claims—the development of guidelines for official witnesses
It has been observed above that changing judicial practice influenced parliamentary thinking about the processes for dealing with disputes over provision of information to the Senate, resulting in the Senate resolving to reserve for itself the responsibility for determining any claim of public interest immunity.
The Senate's procedures recognise that any privilege does not normally belong to an individual witness (unless they are a minister exercising ministerial responsibility) but is a matter for the executive government, claimed as a right at least since the 1950s. In claiming that right and despite changing judicial practice, ministers clung to the notion that, in relation to parliament and its committees, any statement by a minister that information should not be produced should be regarded as conclusive.
An important expression of the principle was made by Prime Minister Menzies in a letter to the then Joint Committee of Public Accounts, dated 19 November 1953, concerning evidence relating to security issues and claims for public interest immunity. Similar advice was provided by the Solicitor-General about public interest immunity in a letter to the Regulations and Ordinances Committee on 14 September 1956. The gist of the advice was that the privilege belonged to the Crown rather than an individual witness, but that an individual witness could make a claim, supported by a certificate or sworn statement from the minister or permanent head, and that given such statements were accepted by the courts as conclusive, parliamentary committees should adopt a similar approach.
For many years, the letters from the Prime Minister and the Solicitor-General referred to above “appear to have been used as guidelines” although, as noted by the Royal Commission on Australian Government Administration (1976), they had never formally been endorsed by the Parliament. 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.
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. 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 ...
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.
Important precedents were established in the 1960s and 1970s. The principle that public servants should not be called on to express opinions on government decisions or policy, now reflected in Privilege Resolution 1(16), was accepted by the Senate Select Committee on the Canberra Abattoir (comprising three Labor opposition senators) in 1969. The Senate Select Committee on Civil Rights of Migrant Australians (1973) did not pursue its request for officers of ASIO to accompany the Director-General in giving evidence to the committee. 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. That position, however, has been substantially modified in recent decades by the regular appearance of the agency at Senate estimates hearings and by the establishment, under the Intelligence Services Act 2001, of a Joint Parliamentary Committee on Intelligence and Security to review the administration and expenditure of all Commonwealth intelligence agencies and any other relevant matter referred to the committee by the responsible minister or either House of Parliament. The committee is excluded from examining operational matters concerning the agencies.
In 1975, Prime Minister Whitlam and other ministers claimed public interest immunity 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 loans negotiations. The claim was the subject of a reference to the Privileges Committee.
The Privileges Committee presented its report on 7 October 1975. The committee divided on party lines. The four government members of the committee were of the opinion that the ministerial directions were valid and lawful. In a dissenting report, the three opposition members of the committee reported that a minister's certificate of privilege for evidence, oral or documentary, sought from public servants has evidentiary value but is not conclusive; they found that the ultimate decision as to whether a question must be answered or a document produced is for the Senate and not for the executive. On 17 February 1977, Senator R.C. Wright moved that the Senate endorse the opinions expressed in certain paragraphs of the dissenting report, but the motion lapsed on prorogation.
The suggestion made by the Royal Commission on Australian Government Administration for the government to develop a set of guidelines concerning the giving of evidence by public servants to parliamentary committees was taken up in 1978. On 28 September that year, 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 final report of the Joint Select Committee on Parliamentary Privilege presented in October 1984, observed that, since Sankey v Whitlam (1978) 142 CLR 1:
… 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.
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.
The guidelines list the categories of information which could form the basis of a claim of public interest immunity and specify that such claims should be made only by ministers. Many of the specified categories are similar to exemptions under the Freedom of Information Act but the Senate has explicitly rejected use of FOI exemptions as a basis for public interest immunity claims, possibly because it encourages reliance on the superseded “class of documents” argument rather than recognising the need to assess documents on a case by case basis and according to the terms of the relevant order in the context of an overarching public interest in the proper conduct of government and the accountability of ministers to Parliament. The 1992 resolution rejecting the FOI nexus was considered by the Procedure Committee. While the committee accepted the minister's contention that in deciding whether to produce documents to a House a minister may have regard to the kinds of grounds for non-disclosure set out in the FOI Act, it warned that if a minister were to regard all of the exemptions in the Act as providing grounds on which to base a claim of executive privilege, this would considerably expand the grounds of executive privilege hitherto claimed by ministers. The committee's warning was prescient: ministers have subsequently attempted to claim immunity for documents on grounds mentioned in the FOI Act that had never previously been regarded as documents that could be withheld from Parliament by reason only that they fell within those categories. Major amendment of the FOI Act in 2010 to encourage disclosure has not inhibited claims of confidentiality based on increasingly generalised grounds. The committee concluded that use of the provisions of the FOI Act as a checklist of grounds for non-disclosure did not relieve a minister of the responsibility to consider carefully whether the minister should seek to withhold documents from a House in the particular context of the matters under investigation.
The 1989 guidelines remained current for many years but their inadequacies were highlighted by a report of the Foreign Affairs, Defence and Trade References Committee in 2010 which drew attention to possible improper influence of witnesses to its inquiry into events on the HMAS Success, through the use of departmental directives known as 'DEFGRAMS'. The need for updated guidelines was referred to the Privileges Committee which considered a revised draft and made comments which were incorporated into the new version published in 2015.
While input from the Privileges Committee informed the development of more comprehensive and accurate guidelines, they remain a statement of the executive's views on this topic and have not been endorsed by either House.
Public interest immunity claims—potentially acceptable and unacceptable grounds
It has long been recognised that there is information held by government that it would not be in the public interest to disclose. Potentially acceptable and unacceptable grounds for claims of public interest immunity, based on cases in the Senate, are summarised in this section.
Potentially acceptable grounds
The following grounds have attracted some measure of acceptance in the Senate, subject to the circumstances of particular cases, the inclusion of an explanation of the harm to be caused, and without acceptance of distorted or exaggerated versions of the grounds:
Prejudice to legal proceedings
There are two ways in which the production of information to the Senate or a committee could cause prejudice to legal proceedings. First, there may be a reasonable apprehension that disclosure of some information could prejudice a trial which is in the offing by influencing magistrates, jurors or witnesses in their evidence or decision-making. A case involving only questions of law before superior court judges is not likely to be influenced and therefore is unlikely to provide a basis for this ground.
This aspect was recognised in 1982 when the Senate passed three resolutions ordering that certain documents relating to tax evasion schemes be tabled, but only 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. Although the government threatened to place the Senate's powers before the High Court for adjudication 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.
In 1998, the government refused to produce documents relating to the waterfront dispute on the grounds that the documents were relevant to actions pending in the Federal Court between parties to the dispute. Advice from the Clerk suggested that the claim was not well founded but appeared to be based on an asserted danger to legal proceedings.
A claim that disclosure of advice may prejudice the Commonwealth's position in future legal proceedings 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. The claim clearly had no foundation as section 53 of the Constitution is not justiciable, and could not form the basis of any legal proceedings on the matter.
The second way in which the production of information to the Senate or a committee could cause prejudice to legal proceedings is that it could create material which, by reason that it is unexaminable in court proceedings because of parliamentary privilege, could create difficulties in pending court proceedings, including the possibility of establishing a basis for a successful application for a stay of proceedings. Committees need to be aware of the potential for witnesses to exploit this potential. To invoke this ground, the nature of the pending proceedings and the relationship of the information sought to those proceedings should be explained.
Prejudice to law enforcement investigation
For this ground to be invoked it should be established that there are investigations in progress by a law enforcement agency, such as the police, and the provision of the information sought could interfere with those investigations. As this is a matter for the law enforcement agency concerned to assess, this ground should normally be raised directly by the law enforcement agency, not by some other official who can merely speculate about the relationship of the information to the investigation.
Damage to commercial interests
The provision of some information could damage the commercial interests of commercial traders in the market place, including the Commonwealth. This is the well-known “commercial confidentiality” ground. The most obvious form of this is the disclosure of tenders for a contract before the call for tenders is closed. The Senate has made it clear in its resolution of 30 October 2003 that a claim on this ground must be based on specified potential harm to commercial interests, and in relation to information held by government must be raised by a minister. Statements that information is commercial and therefore confidential are clearly not acceptable without an explanation of the ensuing harm from disclosure.
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 from Parliament, and observed that genuinely 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.
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.
Unreasonable invasion of privacy
The disclosure of some information may unreasonably infringe the privacy of individuals who have provided the information. It is in the public interest that private information about individuals not be unreasonably disclosed. It is usually self-evident whether there is a reasonable apprehension of this form of harm. It is also usually possible to overcome the problem by disclosing information in general terms without the identity of those to whom it relates.
On some occasions it has been claimed that fees paid to lawyers or consultants should not be disclosed, usually on the privacy ground but sometimes on the commercial confidentiality ground. The claim has not been consistently raised, and information on such fees has been readily provided in some cases. The Senate has since 1980 asserted its right to inquire into such fees.
It is sometimes claimed that information has been collected on the condition that it would be treated as confidential, and therefore the information cannot be disclosed. This is not in itself a ground for a public interest immunity claim. It must still be established that some particular harm may be apprehended by the disclosure of the information. Those who provided the information may not be concerned about its disclosure, and their approval for the disclosure may be sought.
Disclosure of Executive Council or cabinet deliberations
It is accepted that deliberations of the Executive Council and of the cabinet should be able to be conducted in secrecy so as to preserve the freedom of deliberation of those bodies. This ground, however, relates only to disclosure of deliberations. There has been a tendency for governments to claim that anything with a connection to cabinet is confidential. A claim that a document is a cabinet document should not be accepted; as has been made clear in relation to such claims in court proceedings, it has to be established that disclosure of the document would reveal cabinet deliberations. The claim cannot be made simply because a document has the word “cabinet” in or on it. Questions on this matter were subsequently asked and answered at Legal and Constitutional Affairs Legislation Committee estimates hearings on 9/2/2010.
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. Similarly, in 2016, orders for documents about the submarine tender process that had been refused because the documents had been brought into existence for the purpose of cabinet consideration of the issue, were tabled on 1 September 2016 (after the election) with minor redactions for commercial confidentiality reasons, apparently because the cabinet decision had now been taken and the risk of prejudice to its deliberations had passed.
Neither legislatures nor courts have conceded that internal deliberations of government departments and agencies are entitled to the same protection.
Prejudice to national security or defence
This claim is raised in the form of a deliberate statement by a minister that disclosure of particular information would be prejudicial to the security or defence of the Commonwealth. It is usually self-evident whether the claim can legitimately be raised. It has not been used extensively before the Senate or its committees.
The ground may also be extended to internal security matters. For example, disclosure of information about security precautions to be taken at some forthcoming public event could well be resisted on this ground.
Prejudice to Australia's international relations
There are two bases for a claim on this ground. Disclosure of particular information could sour Australia's relations with other countries. The raising of a claim on this basis would seem to cause the harm which it is apprehended disclosure of the information would cause; foreign governments can thereby conclude that something has been said or written that they would not like. Perhaps that is why it is seldom raised. Disclosure of some information could also weaken Australia's bargaining position in international negotiations, and this would seem to be a stronger basis for a claim on this ground. It would have to be established that there are negotiations in prospect for it to be raised.
Prejudice to relations between the Commonwealth and the states
Again, raising this ground, on one basis, would seem to do the apprehended harm. This ground, however, has appeared frequently in recent times in the following form: the information concerned belongs to the states as well as to the Commonwealth, and therefore cannot be disclosed without the approval of the states. The obvious response to this is that the agreement of the states to disclose the information should be sought and they should be invited to give reasons for any objection.
There are also some lesser grounds of very limited scope for legitimate claims. Undermining public revenue or the economy may be apprehended in disclosure of some information. For example, proposed tariff increases cannot be disclosed in advance of their legislative implementation, usually in the annual budget. Some information about interest rates and action to support the dollar also falls into this category. It should be self-evident whether claims on these kinds of grounds are legitimately raised. For example, the reluctance of the government to provide monthly figures on revenue collected under the 2012 mining tax legislation together with the cost to the budget of state royalty increases (creditable against the mining tax liability) and other tax deductions was resisted on commercial confidentiality grounds rather than revenue protection grounds which would have been difficult to justify. The monthly revenue figures, provided by the Commissioner of Taxation to a committee, pursuant to order, revealed that the revenue had been minor.
Potentially unacceptable grounds
The following grounds have either not attracted acceptance by the Senate or have been explicitly rejected.
Advice to government
One of the most commonly claimed grounds for refusing information to the Senate is that it consists of advice to government. It was the subject of a warning by the Procedure Committee in its Third report of 1992 that reference to the exemptions in the FOI Act would considerably expand the grounds of executive privilege hitherto claimed by ministers.
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. Witnesses were also instructed not to provide the committee with certain information or documents relating to the operations of the Foreign Investment Review Board. In its first report, the committee published advice from the Clerk and senior legal counsel concerning the constitutional aspects of public interest immunity claims, legal precedents and court practice. The Kernot bill referred to above was one response to the committee's inability to resolve the impasse but in Canwest v Treasurer Cth  FCA 1603 (14 July 1997) the Federal Court rejected the argument that advice to government by the Foreign Investment Review Board should remain secret.
Governments have claimed that there is a long-established practice of not disclosing their advice, or of not doing so except in exceptional circumstances. These claims are contradicted by the occasions on which advice is voluntarily disclosed when it supports a government position. 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. 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!
Information subject to statutory secrecy provisions
For the major discussion of this, see Chapter 2, Parliamentary privilege, under Parliamentary privilege and statutory secrecy provisions. Unless a statutory secrecy provision expressly limits the powers of the Houses, it is subservient to parliamentary inquiry powers. Because of the protection of freedom of speech in Parliament, a person cannot be prosecuted for breaching a secrecy provision in providing evidence to a House or committee.
Legal professional privilege
It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides grounds for a refusal of information in a parliamentary forum.
The first question in response to any such claim is: to whom does the legal advice belong, to the Commonwealth or some other party? Usually it belongs to the Commonwealth. Legal advice to the federal government, however, is often disclosed by the government itself. Therefore, the mere fact that information is legal advice to the government does not establish a basis for this ground. It must be established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings. If the advice in question belongs to some other party, possible harm to that party in pending proceedings must be established, and in any event the approval of the party concerned for the disclosure of the advice may be sought. The Senate has rejected government claims that there is a long-standing practice of not disclosing privileged legal advice to conserve the Commonwealth's legal and constitutional interest.
Freedom of information issues
It was conceded by government in 1992 that the fact that a freedom of information request for information has been or could be refused under the FOI Act is not a legitimate basis for a claim of public interest immunity in a parliamentary forum. Some ground acceptable in such a forum must be independently raised and sustained.
Notwithstanding this concession, such claims have continued to be made in increasingly distorted forms. 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 ben released under FOI, highlighting the hollowness and expediency of many executive claims for confidentiality.
In response to an increasing incidence of responses refusing to comply with orders for the production of documents on the basis that an FOI request had been made for the same information, the Senate agreed to a resolution on 25 June 2014 reiterating the conclusions of the 1992 Procedure Committee report and declaring that:
declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.
Other arguments based on the FOI Act have also been rejected.
The government's goods and services tax legislation, 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, an FOI ground not accepted by the Senate. Possibly related to the “working document” claim was a suggestion by the Minister for Family and Community Services in 1999 that a draft report on welfare reform should not be produced to the Senate as its disclosure would “confuse the public debate” and “prejudice policy consideration”. These grounds were explicitly rejected by the Senate in a resolution adopting a report on the matter.
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 an FOI request upon payment of a large fee. In this case, recognition in the Senate's order that there might be grounds for withholding some documents led to a government claim that those grounds applied to all the documents.
From time to time, governments have also claimed that to respond to orders for documents would involve an unreasonable diversion of resources of the government agencies affected.
The vacuous claim that documents could not be produced to a committee because they had not been published was repudiated in a resolution passed in February 2009.
The resolution of 13 May 2009, setting out the procedures to be followed by ministers in making public interest immunity claims to committees, reaffirms the Senate's rejection of several flimsy, but often-cited, grounds:
- A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).
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. The resolution of the Senate of 13 May 2009 envisages that claims of public interest immunity will be made by ministers. The exception to this practice concerns statutory authorities and office-holders who are not subject to direction and control by the executive government in their day to day operations, but who are nonetheless accountable to the Senate for their expenditure of public funds. Since the passage of the 2009 resolution, there has been a degree of acceptance that it is appropriate for such officers to make public interest immunity claims directly, where it would not be appropriate for a minister to do so because of the relationship (or lack thereof) between the authority and the minister.
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.
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.
In 2012, the question arose whether it was appropriate for the Official Secretary to the Governor-General (a statutory office-holder under the Governor-General Act 1974) to make a claim of public interest immunity, rather than a minister. Advice was given that it would be more consistent with Senate practice and constitutional principle for the Official Secretary to offer any claim directly to the committee, rather than a minister of state making the claim on his behalf. The advice was consistent with a position tacitly adopted by the Procedure Committee in its Fourth Report of 2009. In the event, no such claim was made.
Remedies against executive refusal of information
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. 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. It is possible, but unlikely, that the courts in such a challenge could determine a claim of public interest immunity.
As an alternative to relying on its contempt jurisdication, 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.
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. The bill was subsequently discharged from the Notice Paper but a second bill was introduced and also postponed in accordance with the same order. In a new Parliament, related legislation was passed only after the government released a summary business plan.
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. A similar remedy was included in an order of 11 February 2015, requiring a minister who had not responded to an earlier order to produce draft trade treaty texts to make a statement on progress negotiating the treaty. Failure to make the statement would allow any senator to a further motion without notice relating to the minister's failure to comply.
One of the most effectively used remedies is the referral of matters to committees so that senators can question witnesses. In many cases, a committee inquiry has succeeded in penetrating the veil of secrecy and obtaining sufficient information to achieve accountability. In certain cases, the ability of committees to receive evidence in confidence has allowed quality assurance of contested programs to occur without jeopardising the public interest claimed to be harmed from public disclosure. In other cases, the Senate has sought the assistance of the Auditor-General to carry out quality assurance on its behalf.
Estimates hearings have frequently been used to follow up public interest claims in respect of documents refused to the Senate. Separate committee inquiries have also been established. These include:
- inquiry by the Community Affairs References Committee into a draft welfare reform report access to which was refused on the basis that it would “confuse the public debate” and “prejudice policy consideration”;
- inquiry by the Community Affairs Legislation Committee into purchases of magnetic resonance imaging machines, information about which was refused on grounds of prejudice to administrative inquiries and the confidentiality of the government's relationship with the medical profession;
- inquiry by the Rural and Regional Affairs and Transport References Committee into the collapse of Ansett after the government refused to provide information on the proposed takeover of Ansett by Air New Zealand on grounds including the confidentiality of advice and the distraction of departmental officers attempting to save Ansett;
- inquiry by the Employment, Workplace Relations and Education References Committee into the government's refusal to provide documents on the financial situations of higher education institutions and the claims that the information was commercially confidential and its release would undermine confidence in the higher education sector. 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;
- a select committee was established during the 2010-13 Parliament on the scrutiny of new taxes, in large part in response to government refusals to provide revenue estimates and their underlying assumptions, in relation to the mining tax in its evolving forms, on the basis of commercial confidentiality and potential prejudice to negotiations between private companies. The committee stopped short of summoning key government advisors from the private sector;
- the Legal and Constitutional Affairs References Committee conducted an inquiry in 2013-14 into the wide-ranging public interest immunity claims made by the government in relation to Operation Sovereign Borders, an initiative to bring people smuggling to a halt and prevent asylum seekers reaching or being re-settled in Australia. While some information was disclosed through the committee's inquiry and estimates hearings, along with subsequent select committee inquiries into regional processing centres, the committee's recommendation for independent third-party arbitration of public interest immunity claims was not supported as a remedy of first resort by the Procedure Committee.
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. 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) which may have contributed to that government's defeat at the 2007 election.
Other jurisdictions have generally 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, although the NSW Legislative Council's practices provide an exception.
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. 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. After a preliminary hearing the matter did not proceed.
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. Contests between Congress and administration are generally left to “the ebb and flow of political power”.
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.