Penny Wright (SA, Australian Greens) Share this | Hansard source

I present the report on a claim of public interest immunity raised over documents, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I am very happy to table this report. As Chair of the Legal and Constitutional Affairs References Committee, I rise to speak about this inquiry into a claim of public interest immunity raised over documents. This has been an important inquiry as it goes to the heart of the relationship between the parliament and the executive. It goes to the heart of the capacity of the parliament, in this case the Senate, to obtain information and documents about actions being taken by the executive that are of concern to the very public which elected us to represent them.

In order to provide some context to this issue, I will go to the words of the Clerk of the Senate, Dr Laing, in giving evidence before the committee on the background to a resolution of the Senate made on 13 May 2009 about the process that is to be followed when a claim of public interest immunity is contemplated. Dr Laing pointed out that the important issue is the balance of competing public interest claims—on the one hand, by government, that certain information should not be disclosed because disclosure would harm the public interest in some way; and, on the other hand, by parliament, as a representative body in a democratic polity, to know particular things about government administration so that parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.

The Senate referred this inquiry to the committee on 10 December 2013. It followed the government's noncompliance with multiple orders from the Senate for the production of documents concerning on-water activities under Operation Sovereign Borders. In refusing to provide the information, the government raised a claim of public interest immunity. This is a claim which has been contested by the Australian Greens as well as opposition senators. In this inquiry, the committee has sought to examine the grounds on which the government's claim of public interest immunity was based as well as the Senate's authority to determine such claims. In this case, it is unfortunate that the committee has not been able to examine the merits of this claim of public interest immunity because of the government's unwillingness to provide further information. The government has merely continued to assert the grounds upon which the claim is made but has not identified any specifics about the documents over which the claim is made.

The committee's ability to examine the merits of the claim has been frustrated because the committee was not provided with the relevant documents, nor the information contained therein, nor even a schedule listing the documents covered by the claim, as explicitly requested of the Department of Immigration and Border Protection. In the course of the inquiry, the government was not forthcoming with any information in addition to that which was already tabled in response to the orders for the production of documents—even on an in camera basis or in altered form. Therefore, the committee had no ability to consider the validity of the claims that releasing such information would result in 'possible damage to national security, defence, international relations and possible prejudice to law enforcement or protection of public safety', which are the usual bases for such a public interest immunity claim.

The government's unwillingness to engage in a meaningful way with this inquiry only serves to heighten the committee's suspicions and concerns about the information sought. As a result, the committee has recommended that the Senate consider a range of procedural and political remedies to resolve the current impasse. The committee has recommended that the Senate insist that Senator Cash be required to explain what documents are covered by the claim of public interest immunity and how she reached the decision to make the claim. The committee reminds the executive of the Senate's right to information and that claims of public interest immunity are just that—claims which are for the Senate to accept or reject. Withholding information from the Senate because it is politically embarrassing or of contestable legality does not accord with good governance and prevents the Senate from fulfilling its scrutiny and accountability functions. These are functions which are vitally important for the democratic process. When serious actions are being undertaken in the name of the Australian people, the Australian people have a right to know what they are, why they are being taken and whether they indeed are necessary. This is not a principle which should be abused.

More broadly, the committee found that the Senate's current procedures for obtaining documents subject to a disputed claim of public interest immunity and for resolving these disputed claims are inadequate. By contrast, the committee heard in detail about the procedures of the New South Wales Legislative Council, where an independent arbiter is able to consider and provide advice on disputed claims of public interest immunity. In that case an independent person has the ability to scrutinise the documents and form a view, as opposed to a situation where those who are not willing to have the documents disclosed merely assert that they are subject to public interest immunity.

Therefore the Legal and Constitutional Affairs References Committee has recommended that the Procedure Committee examine this matter in greater detail. Specifically, the Procedure Committee should consider the New South Wales Legislative Council's model of independent arbitration and how such a process might be applied in the Senate so that the Senate does not continue to be frustrated by disputed claims of public interest immunity in the future, thereby frustrating the Senate's ability to carry out one of its most fundamental functions in a democratic society—that is, making sure that there is proper scrutiny and accountability of executive government on behalf of those people who voted us in.

I would like to give my thanks to the committee secretary and the staff of the secretariat for their hard work in conducting the inquiry and providing the reports, and particularly to those witnesses who gave generously of their expertise and time. This was of great assistance to the considerations of the committee. I think particular thanks are due to the Clerk of the Senate, Dr Rosemary Laing, and the Clerk of the New South Wales Legislative Council, Mr David Blunt. I commend the report to the Senate.