Dissenting Report – Coalition Members of the Committee
The claim of public interest immunity in regard to documents relating to
'on water operations' made by the Assistant Minister for Immigration and Border
Protection, Senator Cash, is valid and necessary to protect public interest.
Substantial information was provided by the Government to the Senate
where it was not against the public interest to do so. Significant efforts
were also made to provide further information to the Opposition and the
Australian Greens to ensure that the Senate's ability to hold the Government to
account on this issue was maintained.
Specific mention should be made of the fact that during the 42nd
Parliament, 33 orders for the production of documents were not complied with by
the former Government, and 9 were only partially complied with.
Further, during the 43rd Parliament, 26 orders for the production of documents
were not complied with, and 7 were partially complied with.
Public interest immunity claim
Coalition Members note the motion regarding public interest immunity
claims moved by Senator Mathias Cormann and tabled by the Senate on the 13th of
along with the advice received by Senator Cormann on the 24th of March from Mr Harry
Evans, then Clerk of the Senate, which stated the following information:
The recognised grounds for public interest immunity claims
consist of the following:
Prejudice to legal proceedings
Prejudice to law enforcement investigations
Damage to commercial interests
Unreasonable invasion of privacy
Disclosure of Executive Council or cabinet deliberations
Prejudice to national security or defence
Prejudice to Australia's international relations
Prejudice to relations between the Commonwealth and the states.
The Government Guidelines for Official Witnesses before
Parliamentary Committees, issued in 1989 and still in force recognised the
principles which had been expounded by the Senate. Paragraph 2.28 of the
guidelines confirm that claims of public interest immunity should only be made
Claims that information should be withheld from disclosure on
grounds of public interest (public interest immunity) should only be made by
Ministers (normally the responsible Minister in consultation with the
Attorney-General and the Prime Minister).
Paragraph 2.32 recognises the principle that mere claims of
confidentiality are not sufficient for a claim of public interest immunity, but
that harm to the public interest must be established.
Senator Cash establishes in her response to Dr Rosemary Laing, Clerk of
the Senate, on 10 December 2013, the grounds as to why it is not in the public
interest to release certain requested information and why public interest
immunity is being claimed.
The response further details how stemming the flow of information
available to people smugglers remains a core element of decreasing their
tactical advantage and aids the fulfilment of the Coalition Government’s
election promise of stopping the boats.
This necessity for confidentiality in this matter is further
strengthened by the remarks of Lieutenant General Angus Campbell, Commander of
Operation Sovereign Borders and the Joint Agency Taskforce. Lieutenant General
Campbell notes that:
- These documents may reveal the location, capacity,
patrol and tactical routines relevant to Navy and Customs vessels and air
- Such information can undermine our tactical advantage over
people smugglers, who seek to use this information to avoid or trigger
detection, or to precipitate a search and rescue response.
- Information of this type can also undermine our ability to
protect Illegal Maritime Arrivals from the practices of people smugglers and
other serious criminal activities
- Finally, it can undermine more generally the effectiveness
of Australian assets to maintain maritime security awareness in the broad
- Secondly, the kinds of documents that are sought,
from my perspective, may enable an exploitation of confidential methodologies
and procedures used by Navy and Customs vessels and assets. Information about
the arrival of ventures, including the timing of the arrival and the
composition of passengers can be used by people smugglers, and has been used by
people smugglers, to:
- Provide 'proof of arrival' and the basis for payment;
- Provide a basis for further positive marketing of their
- Undermine communications strategies aimed at potential
- Finally, those documents may impact upon Australia's
relations with foreign States and damage those relationships, undermining the
potential for international agreements and cooperative behaviours and also the
working relationships necessary between operational agencies in relation to
safety of life at sea or generally on-water cooperative operations.
The Hon. Scott Morrison in a statement made to the Committee on the 31st January
2014 further stated:
Prior to the last election the Coalition gave an undertaking
that we would take advice from the Joint Agency Task Force to be formed to
implement Operation Sovereign Borders, on the public release of information
relating to operations.
The Government honoured this commitment and, as a
consequence, operational information is not publicly released or subject to
public commentary by the Government.
The Government believes that disclosure of such operational
information, which includes but is not limited to on water tactics, training
procedures, operational instructions, specific incident reports, intelligence,
posturing and deployment of assets, timing and occurrence of operations and the
identification of individual attempted voyages, passenger information, including
nationalities involved on those voyages, as this would prejudice current and
future operations, it would put at risk people who are involved in our
operations and unnecessarily cause damage to Australia's national security,
defence and international relations.
In short, in the Government's view, it would not be in our
national interest or the public interest, to disclose this information that
would impede our ability to continue to stop the boats.
Furthermore, during the hearings the Opposition and the Greens both
acknowledged that there will be 'times when information must not or cannot be
fleshed out thoroughly'.
Additionally, that there are genuine issues of commercial secrecy and national
security that 'require there not be public disclosure'.
It is worth noting that claims of public interest immunity were
regularly made by representatives of the former Labor Government in the 42nd
and 43rd Parliaments. These claims related to a number of issues including
sports and recreation facilities, environmental issues, the carbon pollution
reduction scheme, private health insurance reforms, employment services,
chemotherapy treatment and aged care providers.
In evidence to the Committee, the Clerk of the Senate stated that it was
'not uncommon' for Ministers to refuse to refuse orders for the production of
documents, also stating that '[i]t is certainly a fact that there is a degree
of noncompliance with orders for the production of documents'.
The Clerk provided evidence that in the 42nd Parliament, 33 orders for
the production of documents were not complied with, and in the 43rd Parliament,
26 were not complied with.
There was no evidence provided to the Committee that demonstrated there
was a genuine public interest in having the categories of information, as
detailed below, being released:
Briefings internally and externally, including Minutes and Talking
Points as necessary
Case note entries and taskings, timelines and charts
Chronology reporting of SIEV, SOLAS and SAAR events
Electronic External Enquiry forms
Entry reporting including interviews, nomination rolls, screening
Information and subject reports
Input into databases and information storage systems (and related
Intelligence reporting including requests, plans, interview reports,
Ministerial and Cabinet correspondence and advice, including related
briefing and comments
Operation plans, orders, scans, situational reports
Records of conversations
Reviews and input to reviews
Sighting reports including related intelligence, visual contact,
interaction, vessel reporting and asset taskings/movements
Provision of Information
Dr Rosemary Laing, Clerk of the Senate stated in Advice to the Committee
dated 7th January 2014 that:
There are parliamentary mechanisms...such as the receipt of
evidence in camera or the provision of confidential briefings to know against
the public interest in that particular information remaining confidential.
Substantive action was undertaken by the Minister and the Assistant
Minister to provide the information requested in an altered form to ensure the
need to ensure that information remained confidential was adequately balanced
against the Senate’s need to hold the Government to action.
Minister Morrison made himself available to the Committee on his own
initiative. This occurrence is the first time in 22 years that a House
Minister has testified at a Senate Committee Hearing.
A number of avenues of information have been offered and provided to
Members of Parliament, the media and the public by both The Hon. Scott Morrison
and Senator Cash in relation to the Government’s successful Operation Sovereign
In addition to testifying before the Senate Committee, the Minister for
Immigration and Border Protection has also offered confidential briefings to
representatives from Labor and Greens in relation to Operation Sovereign
Borders. As yet, it is the understanding of Coalition Members that no Greens
representative has taken up the offer by the Minister.
Weekly updates have also been provided which detail a number of
statistics relating to the programme, including:
The number of persons who have illegally entered Australia by
boat and transferred to immigration authorities
The number of transfers to offshore processing facilities and the
standing population of those facilities as well as at Christmas Island
- The number of voluntary or involuntary returns; and
The details of any incidents, arrests or significant disruptions
Both the Minister and Assistant Minister continue to make themselves
available, conduct interviews, appear at press conferences and respond to media
enquiries on a regular basis.
The provision of information and the offer of confidential briefings (if
taken up) provided significant opportunity for the Committee to determine
whether a claim of public interest immunity was valid. The argument that the
non-release of a schedule of documents was an obstacle to determining the
validity of the claim could have been resolved through the use of confidential
briefings as offered by the Minister.
The Coalition Members do not support the majority report. We
particularly reject Recommendation 1 of the majority report.
The claim of public interest immunity is valid.
Seselja, Deputy Chair Senator the Hon. Ian Macdonald
for the ACT Liberal Senator for Queensland
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