10 Public interest immunity claims

That the Senate—

1. notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;
2. reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;
3. orders that the following operate as an order of continuing effect:
   1. If:
      1. a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and
      2. an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee,

      the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

   1. If, after receiving the officer's statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.
   2. If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.
   3. A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.
   4. If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.
   5. A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.
   6. 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).
   7. If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).
4. requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

(13 May 2009 J.1941)

11 Senate and Senate committees – claims of commercial confidentiality

The Senate and Senate committees shall not entertain any claim to withhold information from the Senate or a committee on the grounds that it is commercial-in-confidence, unless the claim is made by a minister and is accompanied by a statement setting out the basis for the claim, including a statement of any commercial harm that may result from the disclosure of the information.

(30 October 2003 J.2654)

11A Public interest immunity claims – National Cabinet

That the Senate—

1. has rejected public interest immunity claims made on the grounds of cabinet confidentiality with respect to documents or information related to the ‘National Cabinet’;
2. will not countenance public interest immunity claims made on the grounds that provision of a document or information related to the National Cabinet ordered by the Senate, or sought by a Senate committee or a senator, would reveal cabinet deliberations;
3. directs the chairs of committees to draw this resolution to the attention of witnesses who seek to raise claims on this unacceptable ground;
4. requires those witnesses to:
   1. provide the documents or information, or
   2. articulate a public interest immunity claim on a ground which may be acceptable to the Senate and to specify the harm to the public interest that could result from the disclosure; and
5. resolves that a response to a Senate order for the production of documents that relies on this unacceptable ground is not compliance with the order nor does it constitute a satisfactory explanation for why the order has not been complied with, including for the purposes of standing order 164(3).

(23 November 2021, J.4279)