Battlelines for public interest immunity established again in Senate Estimates

Senate Estimates committee hearings have been underway in Canberra since Monday, with the usual myriad micro Q and (mostly, and in a fashion) A about aspects of government administration.The chair of each committee has tabled at the commencement of hearings this text of the Senate resolution of 13 May 2009, now part of Senate Standing Orders, on public interest immunity claims, and the procedure to be followed in the event of refusal to answer. Paragraph (1) is the nub of it all, and (7) relates to the usual issue of contention.

"Public interest immunity claims

That the Senate— (a) 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; (b) 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; (c) orders that the following operate as an order of continuing effect:

(1) If: (a) 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 (b) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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 (I) or (4).

(8) 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)."

Special Minister of State Joe Ludwig, representing the Prime Minister in hearings concerning that portfolio told the Finance and Public Administration Committee on 19 October (F&P 43) that

" the minister and the department officials appearing as witnesses before the committee will fully comply with the order. You will be aware that it is ultimately the responsibility of the relevant minister to make a claim of public interest immunity. To avoid any risk of inadvertently damaging the public interest by disclosing information that, in the government’s view, should remain confidential, officials and ministers, including the Prime Minister, are likely to require time to consider whether the disclosure of particular information or documents might damage the public interest. In effect, I am simply reminding senators that it will be entirely appropriate for witnesses to take certain questions on notice in order to give proper consideration to possible public interest immunity claims. So where they are referred to me I will endeavour, as always, to provide responses to the committee. If it is an issue that will cross public interest immunity then it may very well be an issue that I have to take on notice for proper consideration of whether that should be claimed and the reasons for claiming public interest immunity in respect of that."

This led to some inconclusive argy-bargy between Senator Ronaldson and the Minister about whether the procedures required an official citing public interest immunity to spell out the reason immediately, or contemplated that the matter could be referred to the responsible minister.