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Thursday, April 09, 2015

Federal Parliament without the means and will to deal with contentious public interest immunity claims

A year ago the question was "Is this the Senate to sort out public interest immunity claims?"

The answer is no to this point.

But the ATO refusal to disclose to a Senate committee the names of ten resources companies that transferred a combined $31.4 billion to Singapore in the financial year 2011 – 2012, backed up as a public interest immunity claim by the Treasurer, might give it another kick along.

"Labor Senator Sam Dastyari will write to the Clerk of the Senate to see what power the Senate has to appeal against the public interest immunity claim .."

Hmm, I think the Clerk is likely to repeat what she told another committee in February last year: it's all about the need
"to balance competing public interest claims by governments on the one hand, that certain information should not be disclosed because disclosure would harm the public interest in some way, and by parliament's claim, as a representative body in a democratic polity, to know particular things about government administration, so that the parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.."
The Clerk said Senate powers to enforce an order, if it comes to that, are limited. Failure to respond to an order to produce is treated as a "a political question."

"We have no powers to sort out the political questions. We suggest the parties go away and do what they can to sort the matter out." 
Hardly satisfactory you would think, particularly in light of the failure over the years to sort many such matters out even when the Senate seeks to impose procedural penalties as the Clerk explained in this (see correspondence) letter of advice. But preferable apparently to the other available options, for the Senate to vote to impose a term of imprisonment for a contempt or impose a fine, powers that have never been exercised. 

The Senate Procedural Information Bulletins faithfully record the stand-offs. 

In response to questions then about what else could be done, Dr Laing identified the NSW Legislative Council as having

"the best system around at the moment for adjudicating these matters They have chosen a system of adjudication and the council has a process whereby if there is a claim like a public interest immunity claim made in response to an order for production of documents, the process nonetheless involves the documents being handed into the custody of the Clerk and if there is a contested subset of those documents then an independent arbiter is appointed to assess the documents in the light of the claim of public interest immunity that is made and then to provide a report. It is then a decision of the council whether to publish the arbiter's report and a further decision of the council whether to then publish any of those documents.
Might this senate grasp the best practice nettle?

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