Claims about "advice to Government" don't wash with Harry

Harry Evans Sydney Morning Herald

The Clerk of the Senate Harry Evans has given a preliminary report to Senator Cormann (Liberal WA) on the compliance of witnesses over two weeks of Senate Estimates hearings with a Senate Order passed on 13 May on the Senator's motion, relating to public interest immunity claims in the course of witness response to questions. The report notes there were relatively few-around 26 occasions- when the order was actually or potentially applicable. But Evans takes issue with the oft-cited claim that advice to government can't be disclosed.. because it isn't. Here are some extracts from the report:

"On at least eight occasions ministers and officers invoked the claimed principle that advice to government is not disclosed. This is demonstrably false, as it is contradicted by all the occasions on which such advice has been disclosed. The claim was made by three senior ministers, Senators Evans, Faulkner and Conroy. The claim was also made by the Secretary of the Treasury, Dr Ken Henry, although at the last estimates hearings he answered questions about advice he and the Governor of the Reserve Bank gave to the government about dealing with the global financial crisis. The Department of Foreign Affairs and Trade repeated the often-made assertion that legal advice to government is never disclosed, apparently oblivious to all the legal advice that has been disclosed in the past. It is clear from many examples over many years that the mere fact that information consists of advice to government is not a barrier to its disclosure in the course of a committee inquiry. What seems to be really meant by these statements is that advice is disclosed when the government chooses to do so.

When asked whether he was making a public interest immunity claim in accordance with the Senate’s order, Dr Henry stated that he was not. This could be the beginning of an argument that, over and above public interest immunity claims, government has a discretion to refuse information without raising any public interest ground. In other words, information can be kept secret regardless of whether there is any public interest reason for doing so. Such a claim has no basis in law in respect of legal proceedings or in parliamentary practice. It is an unlimited discretionary claim repudiated by past resolutions of the Senate and explicitly rejected by paragraph (7) of the order of 13 May 2009.

On one occasion Senator Faulkner quoted paragraph 2.32 of the Government Guidelines for Public Service Witnesses, which indicates that material in the nature of advice etc. relating to government deliberative processes may be withheld, but he did not appear to appreciate the effect of the proviso at the end of that paragraph: “where disclosure would be contrary to the public interest”. Those words are marked for emphasis in the original text of the guidelines. It is clear in these guidelines that the fact that information consists of advice is not in itself a ground for a public interest immunity claim, and that there must be a separate consideration of whether there is a public interest ground for not revealing the advice.

On one occasion Senator Conroy stated, when attention was drawn to the Senate’s order: “It is of no relevance to the official. It is only of relevance to a senator.” It is not known what was meant by this statement. If it is the beginning of an argument that the orders of the Senate are not binding on officials, it is clearly not correct. Past orders of the Senate are binding on officials, and it is open to the Senate to make orders governing the conduct of officials during their participation in Senate proceedings or the proceedings of Senate committees.

Senator Conroy also stated: “If you’re not going to respect the conventions, you can pass all the resolutions in the Senate you like.” This appears to indicate a determination to ignore the resolution and to claim that, simply because ministers refuse to answer questions at their discretion, this establishes a “convention”. Obviously, a parliamentary convention cannot be established by unilateral (and inconsistent) assertion by the executive...

In at least five cases grounds for secrecy were raised which have not been regarded as acceptable in the past, including nebulous grounds such as “budget processes”. On one occasion a minister stated that officers may not be asked to clarify factual statements by ministers. One officer stated that information could not be provided until a minister had released it. In one case privacy was claimed for officers’ remuneration, in violation of the well-established principle referred to in past Senate resolutions that the remuneration of persons paid from public funds must be disclosed."

Evans concludes:

"As was pointed out in the advice tabled in the Senate when the order was passed, the basic principle underlying the order is the same as that underlying the government guidelines for public service witnesses: information should be secret only where there is a public interest-related ground, of which there are well-known categories, for maintaining the secrecy. This also appears to be the foundation of the current government’s stated emphasis on transparency and openness. The difficulty in securing observance of the order is the lack of understanding of that principle.Closely related to this difficulty is the apparent notion that a public interest immunity claim is merely one category of claims to withhold information, perhaps confined to the grounds suggested in the government guidelines, while there are additional categories of grounds for withholding information which are somehow different from claims of public interest immunity. It needs to be emphasised that “public interest immunity” is an all-embracing generic term covering all grounds for claiming that information should be withheld from a parliamentary inquiry. The phrase was first adopted by the courts in relation to claims of confidentiality of official information in legal proceedings, and was subsequently adopted in the context of parliamentary proceedings, in substitution for the old phrase “Crown privilege”. The virtue of the term “public interest immunity” is that it emphasises that information may be withheld only on public interest grounds. Information in the custody of officials, including ministers, performing public duties does not belong to the officials, and as the servants of the public they may withhold information from the Parliament and the public only on grounds of possible harm to the public interest." The experience of the estimates hearings indicates that an educative effort is required to secure appreciation of this principle on the part of Commonwealth office holders."

Interesting times. We may have a real barney on the Senate horizon here. In a previous post I mentioned the close parallels between the Senate Order and the Freedom of Information exemption that will apply to advice documents, as a result of the Government's Reform proposals.