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?

NSW Parliament sorts crown privilege and public interest immunity claims

And in some respects it's a win for the public right to know that government is discharging its responsibilities to safeguard our interests as it is required to do.
 
See here for background but in brief, the issue arose following an order by the NSW Legislative Council to produce the Crown Casino VIP Gaming Management Agreement for the James Packer casino to be built at Barangaroo. 

The Department of Premier and Cabinet supported by Crown claimed privilege for parts of the agreement citing commercial confidentiality, statutory secrecy and public interest immunity and arguing they should not be tabled and available for public inspection. (See Correspondence.)

The Independent Arbiter (former Crown Solicitor and President of the Court of Appeal) Keith Mason QC examined the agreement, accepted some of the claims but rejected others. 

The Greens Dr John Kaye moved the matter be referred to the Privileges Committee to assess the Arbiter's decision. DPC and Crown continued (in confidential submissions) to argue their case.

The Privileges Committee recommended that the Council order tabling of the agreement in accordance with the decision of the Arbiter.

Dr Kaye decided not to push for more. The version of the agreement redacted in accordance with the ruling of the Arbiter was tabled on 13 November.

The exercise provides another example for parliaments elsewhere around the country that have no mechanism to resolve disputed claims that the NSW system is an excellent model. 

The Privileges Committee report reveals that since 1999, the Legislative Council has made over 300 orders for production of papers."In almost 50 instances, the services of an independent legal arbiter have been employed. In the committee’s view, the process is robust and effective."

Sean Nicholls in The Sydney Morning Herald highlights the bits that the government unsuccessfully argued to the Arbiter and the Privileges Committee should not be publicly disclosed, in particular Schedule 1 of the Agreement. The schedule includes measures that the government required in the agreement to ensure Hong Kong/Macau gambling magnate Stanley Ho or his associates had no involvement in or connection with Crown's activities here or overseas, ever.

There are differences between the issues and those that arise under public access to government information law, but the following points from the Privileges Committee report are of interest and some relevance:

The Greens roll the dice in pushing for publication of Packer's casino agreement

Sean Nicholls reported in the Sydney Morning Herald last week on the tussle between the Executive and the Legislative Council over public access to the NSW government's "VIP gaming management agreement" with James Packer's Crown Resorts. 

This is a rare, maybe the first instance of a challenge to the long standing NSW system for resolving disputed public interest immunity/ executive privilege claims arising from an order to produce documents.

The Greens John Kaye is seeking to contest the opinion of the independent arbiter that parts of the agreement concerning preventing organised crime infiltration and corruption at the casino qualified for privilege and should not be publicly released.The arbiter rejected other claims for privilege. The matter has been referred to the Privileges Committee.

The NSW system has been hailed as the best in the country for dealing with such issues. As is well known the Senate has no system for resolving such disputes. 

So far despite the spark to Senate assertiveness from the enlarged third party and independent crossbenches there has been no visible sign of interest in this parliament in doing anything about it.

Each Procedural information Bulletin includes a section on Senate orders for production of documents.

Is this the senate to sort out public interest immunity claims?

The Senate from here on will likely be an even livelier front for argy bargy over access to government documents.

 But whether there is appetite and numbers among Labor, The Greens, the PUPs and assorted others - maybe even among staunch parliamentarians on the government benches - to push for a mechanism to resolve a disputed public interest immunity claim remains to be seen. Refusal to produce has been treated as a 'political problem' to date. If the matter can't be sorted by negotiation it dies in the ditch at that point.

In February there were indications it was game on. At one point the non-compliance rate with orders of the 44th Parliament to produce stood at 100%. The Senate Procedural Information Bulletin at the time labelled it "an unprecedented situation." The record has improved since.

The Legal and Constitutional Affairs References Committee then huffed and puffed about the refusal to comply with an order to produce documents relating to 'Operation Sovereign Borders' with secrecy about the boats an ongoing issue, given new impetus this week.

The report also recommended the Senate refer to the Procedure Committee "as a matter of urgency" inquiry into the independent arbitration process followed by the NSW Legislative Council regarding responses to orders to produce and any modifications necessary if such a scheme was to be adopted by the Senate. The Clerk of the Senate Dr Laing told the References Committee the NSW system is the best around for adjudicating these matters.

The 'matter of urgency' didn't count for much. The report was tabled on 6 March but there has been no debate and no referral to date.

Meanwhile stand offs continue. 

The Procedural Bulletin reported on the May-June Senate Estimates hearings:

There were numerous occasions when officers or ministers declined to provide information and senators pressed for articulation of the grounds on which the information was being declined. In most cases, the questions were then taken on notice. Some examples include:

• monthly reports of agency figures on involuntary redundancies (Australian Public Service Commissioner) – said to be advice to ministers (FPA, 26/5)
• whether the Prime Minister’s Chief of Staff attends Cabinet meetings (FPA, 27/5)
• appointment and role of the new Cabinet Secretary (FPA, 27/5)
• the timing of advice on cessation of the Nursing and Allied Health Scholarships Support Scheme in Tasmania (CA, 3/6)
• further questions about funding for mental health programs (CA, 3/6)
• the number of Cabinet decisions in relation to free trade agreement negotiations with China (FADT, 5/6).

In other cases, while only skeletal public interest immunity claims were articulated – such as national security concerns in relation to information about drone strikes in Yemen and the death of Australians (LCA, 28/5) – senators did not press for further information....

There are always cases of officers or ministers declining to provide answers on the basis of “longstanding” practice, only to be embarrassed by the discovery of the information from a public source moments later. In this round, the ministerial order of precedence – astonishingly – was claimed to be a secret, but was found shortly thereafter on Wikipedia (FPA, 27/5). It is also reflected in the published ministry list and in the order of occupation of seats on the front benches in each House. Membership of the Government Staffing Committee was also discovered to be public information (FPA, 29/5)...

Despite the recent enhancement of opening statements with the agreement of the Chairs’ Committee, “advice to Government” is still the most common bleat by officers and continues to remain unpursued on most occasions. Apparently, it is also “not the practice” to make legal advice public in estimates hearings, a statement made in the context of discussion of the tabling of departmental legal advice on the legality of settlements in the Palestinian Territories at a previous round of hearings (FADT, 4/6).

In another development Senator Wong has a number of motions before the Senate including 298,

noting "the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;

(b) recalls the observations of the Procedure Committee in its Third Report of 1992 that:

(i) there is no basis in law for the application of the FOI Act to the production of documents to a House;

(ii) if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed;

(iii) the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;

(c) resolves That the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers;

(d) declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.

Secrecy surrounding what is up for grabs in the negotiation of the Trans-Pacific Partnership Agreement continues to attract attention in the Senate.

Meanwhile The Greens Senator Rhiannon is seeking to up the ante in that 'vexatious applicant' matter and the associated refusal of an an FOI application for the Senate vote count software, with this motion that may or may not get a run today:

*330 Senator Rhiannon : To move—That there be laid on the table by the Special Minister of State, no later than 15 July 2014:

 (a) all correspondence and documents, whether written or in email form, from the Special Minister of State’s office and/or the Australian Electoral Commission (AEC) relevant to:

 (i) the decision of the AEC to have Mr Michael Cordover declared a vexatious applicant, and

 (ii) the assertion that Mr Matthew Landauer colluded with Mr Cordover to harass the AEC; and

 (b) the source code of the software by which Senate vote counts are conducted.

(Update: Paul Farrell in The Guardian reports the motion passed on 10 July and quotes Senator Rhiannon:

“There is no justification for the AEC refusing to release information on how the Senate vote is counted,” Rhiannon said. “It is widely known that it is very complex so surely the methodology used should be publicly available. “Why would you stop the public knowing how the Senate vote is counted?..The AEC are not only doing the wrong thing in refusing a legitimate FOI request – in the wake of the WA federal election debacle they are further damaging their own reputation,” Rhiannon said. “The AEC hardline position in trying to discredit Mr Cordover as a vexatious litigant is an abuse of the law under which the AEC operates and raises the very relevant question what do they have to hide."

I'd expect resistance to the software demand which in the FOI context the AEC claims contains 'trade secrets' and information of a commercial value. Whether the Senate or the AAT becomes the forum for battling this out remains to be seen.

While the cat was away......

Glad of any input on the mice at play. Certain to be plenty that I missed.

As noted here, no positive vibe concerning Australian membership and participation in the Open Government Partnership.

The Federal Government Commission of Audit report ventured into the open government space recommending among many 'courageous' initiatives, the non controversial improvement in timely access to data and better arrangements for reuse. Read Craig Thomler's take. The administrative changes noted by Renai LeMay don't seem conducive to this.

The Commission also proposed the merger of various tribunals into the Australian Administrative Appeals Tribunal, the consolidation of  a number of federal ombudsmen into an over-arching ombudsman, and in what is the latest in a long running campaign by the Department  to run it into the ground, that the Australian Law Reform Commission be absorbed into the Department of the Attorney General.


Senator Joe Ludwig in The Guardian wrote "Here's why a strong FOI act matters: it keeps the bastards honest." (An easy shot from the opposition front bench of course, but he's right. Here is a comment on Labor's FOI legacy.) Nothing from the government on the recommendations arising from the Hawke FOI review so, who knows, they may still speak to some outside government before picking up the bits the public servants like.

No major developments regarding the mild tugging (so far) to get the government to table documents in response to senate orders concerning Operation Sovereign Borders although  things on production generally are not as bleak and uniformly negative as they were after the first few months of this parliament. This Senate Legal and Constitutional Affairs Committee report in which the non government majority recommend further examination of the NSW model for resolving issues concerning production of documents came in for limited debate on 6 March. The matter seems certain to be taken further. 

Cai-Wikipedia Commons

Evidence before the the NSW Independent Commission Against Corruption provided new depressing insights into the practice of the dark arts of influence peddling, and factional struggles within the Liberal Party. The Premier and the Minister for Police resigned, and fallout is continuing. Reform of political donation laws, lobbying rules, and disclosure requirements is in the air even before the Commission reports, although there are plenty of relevant Commission recommendations that go back years gathering dust in government in-trays.

The NSW mess has embroiled former Federal assistant treasurer Senator Arthur Sinodinis. As the Liberal Party at the Federal level has opposed previous attempts to do something more on political donations, interesting to see where things go from here in this and related areas. The Greens will introduce a bill next week to establish a Federal independent anti-corruption body. Flow on effects in other states seem likely.

Jack Waterford's account in The Canberra Times of what turned up in his ASIO file is good fun. You would like to think what he found recorded is just a reminder of the paranoia of earlier times, but who knows? The article is an extract from Dirty Secrets: Our ASIO Files, edited by Meredith Burgmann.

Arrived back in Sydney during Privacy Awareness Week and managed to get to a breakfast debate yesterday on aspects of the ALRC Discussion Paper "Serious Invasions of Privacy in the Digital Age." The proposal for a Commonwealth Act to establish a statutory cause of action for a serious invasion of privacy seems a lost cause before things go any further, given reported comment by Attorney General Brandis, reported in The Australian that "the Government has made it clear on numerous occasions that it does not support a tort of privacy." For those who don't give up easily on hopeless causes in the name of good public policy, submissions close 12 May. 

Australian Information Commissioner Professor McMillan outlined an alternative model based on amendments to the Privacy Act and the current regulatory system but this would involve amongst other major changes, removing current Privacy Act exemptions enjoyed by small business, the media and political parties and there isn't any likliehood of this government being interested in that either. Realistically, the far less satisfactory outcome 'leave it to the courts' is likely methinks.

(Addendum: Stilgherrian was there too, and wrote this account.)

Cabinet documents and release to the Royal Commission

Former prime ministers Malcolm Fraser and Bob Hawke are alarmed and the talk is how 113 years of history will be overturned if the Government makes the previous government's cabinet papers available to the royal commission into the abandoned home insulation scheme.

This is flagged in media reports about a letter from Attorney General Brandis to his predecessor, Labor's Mark Dreyfus. The letter said the documents ''will include documents over which a claim for public interest immunity might be made, such as cabinet documents''. In providing the documents the government will indicate that it does not waive its right to claim public interest immunity from their contents becoming public.

At this stage the circumstances - whether the Royal Commission has ordered production, or the government has volunteered - and what will be made available (submissions, decisions, notetakers note books) is not known. What might become public is way down the track.

Cabinet proceedings are not recorded verbatim. The notebooks are "handwritten notes" (yes!) of the proceedings  recorded by the three Cabinet Office staff members in attendance. 

Amid the shock horror and suggestions the government is playing politics in this, it's worth noting that a royal commission has powers to compel production that are at least the equivalent of any judge and probably go further.

 And as Odgers' Australian Senate Practice 12th Edition conveniently summarises, cabinet documents are not extended absolute protection from discovery:

The claim often loosely made that “cabinet documents” are immune from production in the courts is not supported by recent judgments. Only documents which record or reveal the deliberations of cabinet are immune (Commonwealth v Construction, Forestry, Mining and Energy Union 2000 171 ALR 379; NTEIU v the Commonwealth 2001 111 FCR 583; see also Secretary, Department of Infrastructure v Asher 2007 VSCA 272).

Odgers' quotes from the High Court in Sankey v Whitlam and others 1978 142 CLR 1) and refers to other decisions:

In 1984 the High Court ordered the production of Australian Security and Intelligence Organisation (ASIO) documents for its inspection in a criminal trial, Alister v the Queen 154 CLR 404. In The Commonwealth v Northern Land Council 1993 176 CLR 604, the High Court held that the Commonwealth should not have been ordered to produce notebooks containing records of cabinet deliberations to legal representatives of the Northern Land Council. The Court held that: "The production to the court of documents recording cabinet deliberations should only be ordered in exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of such documents."

In that case the Court went on to say:

 "When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has “received an excessive dose of cold water”.

(That dose of cold water isn't counting for much in some quarters at the moment-see the reference here to FOI refusal of access to incoming government briefs and the recovered status of 'Frank and Candid.')

Public interest immunity claims refusing to comply with parliament orders to produce are the subject of a current Senate committee inquiry. Former Clerk Harry Evans in a note circulated in 2005, and still accorded weight (by parliamentarians at least) was of the view  that a cabinet document did not automatically qualify.(See Odgers.)

With regard to public access, the FOI act exemptions work to protect cabinet documents The 30 year rule  is dropping in stages to 20, and now at 28. The 1950 Cabinet notebooks, released in 2001, were the first notebooks to be released for public access.

Penchant for darting and weaving over secrecy

The issue of parliament's powers and the resolution of disputes over production of documents remains for another day, but the release of this summary of the NBN business case overcame the immediate hurdle to progressing relevant legislation through the Senate.  Michelle Grattan in The Age wonders whether the failure to do this days ago was government's natural penchant for secrecy or just plain arrogance.

ABC News

Minister Conroy on Lateline reiterated cabinet confidentiality, commercial in confidence and decisions still to be taken by the ACCC as the reasons. And as to any penchant for secrecy:

"TONY JONES: But who dreamt up the idea that minority MPs and senator would have to sign a seven-year confidentiality agreement to just get a briefing on this? This was like a comedy of errors. I mean, it started as seven years, it went down to three years, eventually it went down to two weeks. I mean, who was running this?

STEPHEN CONROY: I think there was some very eager officials in one of the departments that were very keen to ensure we had maximum confidentiality and once - and this was all happening over the weekend - once we were able to see what was being put forward, we agreed with the proposition that they were a little over-eager in terms of the time that they were seeking when the majority of this information would be available within a few weeks' time in December, as Julia Gillard made clear over a week ago: That we would be releasing as much as was not commercially sensitive and we've said this consistently: we would release this document, but the Cabinet has to consider it. But we've always said that we would release as much information as we could."

The Senate pursues the PM's "let the sun shine in" promise

 Thadius856 & Parutakupiu via Wikimedia Commons

We can expect more on public interest immunity as the week progresses, but there are three issues in play in disputes over the production of documents in response to senate orders:

. the Australian Information Commissioner's opinion that without legislative amendment he has no powers to investigate or report on a government refusal to produce documents in parliament. His letter in response to a senate resolution requiring action by him was tabled on 15 November- but is not online. The legislation  certainly doesn't envision such a role. Senator Cormann in debate on 15 November, and perhaps the Clerk of the Senate have another view;

. the government failure to date to produce the NBN Co business plan- see last Thursday's debate; 

. and going back a little, the Government's failure to produce documents concerning the mining tax. Senator Cormann last week summarised the outstanding matters:

"The Senate passed three orders of the Senate on two occasions. They were broadly around three issues. They were around the issue of assumptions that were used by the government to estimate the revenue from the original mining tax, the RSPT, and from the revised mining tax, the minerals resource rent tax. In a separate order we sought details on the secret negotiations and deal entered into between the government and BHP, Rio and Xstrata. In a third motion we sought information about how much of the mining tax revenue would come from individual states and territories and how much would come from respective commodities. It is important to note here that Treasury took questions in relation to this on notice on 5 July at a hearing of the Senate Select Committee on Fuel and Energy and to this day these questions remain unanswered."

There are also references to failure to disclose documents concerning the Building the Education Revolution program, although it's unclear whether this was the subject of a senate resolution.

Update:  The Senate on 22 November passed  a motion by Senator Cormann ordering the Australian Information Commissioner to reconsider his position to not report to the Senate on the Government's failure to produce documents relating to the mining tax.The Government opposed the motion. Senator Ludwig said the Prime Minister had asked her department

"to examine the issue and advise on possible options for implementing the agreements (with The Greens that the Commissioner be given such a role.) Once that advice is received, the government will progress this initiative. If the Australian Information Commissioner is to have this function, it is necessary and appropriate for the functions, powers and protections that would accompany it to be stipulated in legislation."

Thanks to Open Australia for the Hansard links.

Dispute over tabling NBN document a harbinger of things to come

The stand off between the Government and the Senate (and one narrowly avoided in the House of Representatives) over the tabling of the NBN business case isn't the first and won't be the last where claims of public interest immunity arise in this parliament. In this case the Opposition has had an easy run in making the refusal to date sound hollow, given the drip feed approach to disclosure of detail since the proposal was announced many moons ago, and disputes since. However a refusal to table a document prepared for submission to cabinet is a well established public interest ground for refusal, in contrast to broad, claims that lack specificity concerning the public interest involved. While the need for proper cabinet consideration has been thrown around as the reason for refusal this week, it remains to be seen whether the Government responds along that line or resorts to the much less precise "highly sensitive and commercial in confidence" claim by the NBN CEO.

If the Government claims public interest immunity, regardless of the grounds that's the end of it under existing arrangements unless the Senate itself takes action to deal with a contempt by a senator/minister.

The prospects of a scheme to deal with a refusal to table documents in response to an order of the Senate, or to deal with disputed claims, by reference to an independent arbiter were dashed in February when the Government and the Opposition voted against. Back in those pre "new paradigm" days Senators Xenophon and Ludlam were left to champion the cause in a dissenting report, to little effect.They have more clout these days, even more in the next Senate from 1 July next year.The issue didn't get a mention in the post election Government-Greens agreement or the agreement with the House independents.(Correction: clause 3(e) of the agreement with The Greens states:"Refer issues of public interest disclosure, where the Senate or House votes on the floor against the decision of a Minister, to the Information Commissioner who will arbitrate on the release of relevant documents and report to both Houses.) It was raised in the Senate this week where Senator Ludlam said: "We will be moving very, very shortly to make sure that that agreement is put into effect.."

Evidence from "Trance bought " no help in TCard public interest immunity claim

The only (unintended) light note in this judgment of Justice Einstein in the NSW Supreme Court on a public interest immunity claim by the State of New South Wales was the reference to one of the witnesses, Mr Nicholls, "currently acting as Deputy Director General of the Department of Trance bought and infrastructure" [at 38 and probably corrected by the time you get to read it.] Ah, the perils of proof reading in the age of Spellcheck... and yes I've had a few, so chin up to the Judge's Associate.Update-still there a week later so you wonder who  read the judgment.

The rest was a setback for the heavyweight legal team of Mr P Hastings QC, Ms C Spruce, Mr R Bhalla, and Mr J Mitchell, instructed by the Crown Solicitor. They argued on behalf of the State that certain documents should be withheld from discovery by the defendants in this lawsuit initiated by the Government following its decision to terminate the ERG contract for an integrated smartcard-based ticketing and fare payment system for public transport in Sydney. The issue was a claim that the documents should not be discoverable by the defendants because they related to matters of state and the public interest in producing them was outweighed by the public interest in preserving secrecy or confidentiality (Section 130(1) of the Evidence Act.

Justice Einstein was unpersuaded by the evidence of the two public servants who under cross examination [34-36 and 39-41] were shown to have not turned their minds to a principled approach to the issue, and in effect signed affidavits that were put in front of them concerning the status of the documents:

45 In truth the materials put forward by the State’s witnesses fell far short of discharging the requirement that there be some form of transparency in relation to how there had been determined from amongst the many documents discovered those to be reviewed for public interest immunity.
46 It was important for the Court to have before it from the State, evidence upon which the court could rely in order to be in a position to understand what were the criteria by reference to which it came to be contended that particular documents were described as Cabinet minutes. To my mind it became clear from the above-described cross-examination that the proponents had insufficient knowledge of that process [and insufficient knowledge of the issues in the proceedings] to satisfy the court as to what the above-described criteria were.

Justice Einstein said the State bears the onus of seeking to have the Court exercise its discretion to prevent disclosure of documents:

49 ..... In that regard the State is the person seeking to prevent the production of material documents and must demonstrate that the material documents relate to matters of state and that the balancing test favours non-production. The onus is a heavy burden requiring a proponent of the immunity who is resisting production to "establish a 'real’ rather than merely 'some' or 'any detriment to the public interest from disclosure" of the documents: cf: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 at [25]; Somerville v ASC (1995) 60 FCR 319 at 354.

50 In any event even if a considerable number of the documents do relate to matters of State, subject to what is said below, the balancing exercise favours inspection. The defendants in these proceedings face a damages claim brought by the PTTC of $77 million for monies allegedly spent by the PTTC and the NSW Government between 2002 and 2008 supervising the Project in addition to a claim for compound interest. Many of the documents relate to briefings to the Minister or meetings referred to in the PTTC’s own evidence in support of its claim. I accept that as a matter of fairness and in the interests of the Court having all relevant evidence put before it, ITSL and ERG should be permitted to inspect the Claim Documents.

Justice Einstein was prepared to order only that " the allegedly confidential documents identified with the words ' Cabinet-In-Confidence' " be withheld but nothing else including briefings to the Minister.

Bill of Rights 1688 still handy for the Government; 21st Century charter another story

At a time when the Commonwealth Government is reported to have put the brakes on the charter of rights recommended by the Brennan Committee, and dire and often off - the - map predictions have been made about the repercussions of embracing such a radical idea, it is ironic that the Bill of Rights of 1688 came in handy when the Department of Broadband the Digital Economy and Communications was arguing successfully against production of documents sought in civil proceedings brought by the liquidators of Optel in the NSW Supreme Court.

It was a minor point in a matter that otherwise involved public interest immunity claims on the basis of legal privilege and cabinet documents. The decision also included a reminder [73-85] that in the courts at least such claims are not absolute and must be weighed against disclosure in the public interest for the purpose of the proper administration of justice.  Despite the views of commentators on the outside, government isn't interested in requiring that sort of balancing of interests under the Freedom of Information laws when  documents are claimed exempt on these grounds.

In this decision however when neither legal privilege nor cabinet process arguments were available to support a refusal to disclose one of a number of documents, Justice Austin "not without hesitation," concluded the 1688 Bill, 300 years later, served to protect from production Question Time briefs prepared for the Minister and Prime Minister, on the basis that disclosure would "impeach the proceedings  of Parliament."

Public interest immunity to protect collective cabinet responsibility

In recent Senate Estimates hearings for the Department of Prime Minister and Cabinet, amid questioning of Minister Ludwig and officials about the Government's claim that no special deal had been offered those on board the Oceanic Viking, Liberal Senator Ronaldson made a concerted effort to get the names of those who attended a meeting of the Cabinet border protection committee where decisions on the matter were taken, in particular those from the Prime Minister's office.  The Minister refused, claiming public interest immunity and providing this statement of reasons (Finance and Public Administration 08/02/2010 at F&PA74).

"Disclosing the identity of ministers who attend cabinet meetings or cabinet committee meetings—I will deal with this issue first—would be contrary to the public interest because it would tend to undermine, as I indicated earlier, the collective responsibility of cabinet. It does that by inviting speculation about the collective basis of agreed outcomes, and this is consistent with the practice of successive governments. The relevant staff may attend meetings of the cabinet and its committees and working groups to provide advice when required depending on the subject matter under consideration, but they are not decision makers. Disclosing the name of ministerial staff who were present at particular cabinet meetings or cabinet committee meetings would also tend to undermine the collective responsibility of cabinet."

Senator Ronaldson responded that the names of members of  cabinet committees were public knowledge ( they are in the Cabinet Handbook, but remember this from earlier last year ?), called the Committee into a couple of closed meetings where it decided not to press the matter further, and finally said he may ask the Clerk to investigate. Given the fact that Labor and Liberal senators who sat on the committee have recently recommended against an independent arbiter proposal to deal with these sort of stand-offs, the issue won't run too far.

Revealing names of ministers in the room at a particular meeting would reveal also who was not there, so this must be what the Minister meant by the line invite "speculation about the collective basis of agreed outcomes." And the name of ministerial staff present could maybe suggest the subjects being discussed or angles being considered, or indicate whether that minister was or wasn't present. Still it seems something of a stretch to suggest disclosure "would..tend to undermine the collective responsibility of cabinet."

Senate powers to access documents one of the issues for 2010

The  Senate Finance and Public Administration Committee will be sharpening the pencil this week and next with a report due on 2 February on a problem former Clerk of the Senate Harry Evans describes as one of the biggest facing legislatures around the world: what should be done when a minister, on claimed public interest immunity grounds, refuses to produce documents in response to an order, and the Senate only has a broad statement of reasons  for the claim?

The Committee is considering a proposal to call on an independent arbiter to determine if the claims are justified. Since the resolution was referred last November, the Committee received 11 submissions and held a hearing in Sydney on 7 December.

Here's Harry Evans in his first appearance before a senate committee in a private capacity, on the nature of the problem, and how the resolution might help:

A large part of the problem is that Public Service departments have an instinctive reaction to withhold information from disclosure. If a committee or the Senate itself asks for something and there a vague idea that it is sensitive in some way or it is something that has not been published, the instinctive reaction of government departments is to say, ‘No, you can’t have it,’ and then to think up some plausible reasons why you cannot have it. Then it goes to the minister and the minister more or less feels obliged to support the department. Ministers are naturally reluctant to overrule their department and say: ‘No. I think this information should be disclosed’—although, good ministers should know how to do that. So you have the problem of these cases remaining unresolved.

If this system were in place, I hope it would deal with the problem at the source back in the department, where departmental officers would say to themselves: ‘If we say they can’t have it, it has to go to the minister and the minister has to make a decision and then, if the Senate is not satisfied, it will go off to this arbitration and we will have to make a submission or produce the information to the arbitrator. That is a very time-consuming and troublesome process. Let’s think more carefully about whether we can really let them have it in the first place.’ I hope that would be the deterrent effect of this process being in place—right back at the source, officers of departments will think more carefully about whether there really are any persuasive and valid reasons for withholding information in the first place.

The weight of evidence before the Committee suggests the need, if much is to be accomplished, to come up with something stronger than what was proposed - asking the Auditor General (in any claim of commercial in confidence) or an otherwise independent arbiter (in the case of other claims) for a report based on the Minister's stated reasons. The Government is unlikely to find some of the suggestions in submissions and evidence palatable.

 

Professor Anne Twomey, who has researched and written about the NSW scheme, says the whole exercise will be a waste of time if the proposal goes ahead without a requirement to produce documents to the arbiter. She has other concerns about the proposed resolution, and urged the Committee to ensure the resolution contained clear rules about what qualified for a public interest immunity claim and what did not.

Clerk of the NSW Legislative Council Lynn Lovelock can't see how the scheme can work without the documents being available to the arbiter. Auditor General Ian McPhee doesn't want a role in any of this, saying that asking him to arbitrate goes beyond traditional functions of his office. Commonwealth Ombudsman Professor John McMillan sees merit, and alignment of functions, in giving the arbiter's job to the proposed Information Commissioner.

Senate looking to muscle-up on refusal to answer

The recent debate in the Senate about commercial in confidence claims as reasons for refusal to provide information in response to questions led to this Senate Finance and Public Administration Committee inquiry into a process for determining public interest immunity claims. The Committee is seeking submissions by 27 November on a proposal that in the event of a stand-off an independent arbiter shall be appointed. Where commercial confidence is claimed the arbiter is to be the Auditor-General; in other cases an independent arbitrator appointed by resolution of the Senate.

"The independent arbitrator shall, as soon as practicable, report to the Senate on whether the reasons given for withholding the documents or information are justified. Where the independent arbitrator reports that reasons given for the withholding of information or documents are not justified, the documents or information shall be produced in accordance with the order of the Senate or the requirement of the committee, subject to any further order of the Senate."

While welcome a pity that this further step in enforcing accountability to the parliament comes just as Clerk of the Senate Harry Evans, a great upholder of the rights of the parliament, and a stickler for detailed reasons for any public interest immiunity claim, retires. Evans will be just another interested spectator when the Committee reports in February next year.

Bets all round in discovery and disclosure in Federal Court

In this judgment of the Full Court of the Federal Court of Australia concerning Betfair there was no challenge to the decision, the subject of a recent post, by Justice Jagot rejecting claims by the State of NSW for public interest immunity over documents discovered by Racing NSW and Harness Racing NSW. However the Full Court overturned her decision that instructions to Parliamentary Counsel to draft legislation do not constitute a request for legal advice, and that documents of this kind are not subject to legal professional privilege. The Full Court 's observations have application in the Freedom of Information/Government Information (Public Access ) Act context as well, should the issue of access to this type of information arise.

The Court stated [21] that when preparing draft legislation, either in the form of an Act of Parliament or a regulation:

"Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation.

22 Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid.

23 It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances. It is not a matter of there being multiple concurrent purposes. Undoubtedly if there were purposes of equal weight, then neither would be dominant, and a claim for privilege would fail. However, there is only one purpose here – to obtain the advice of Parliamentary Counsel, and the communicating of that advice is given in the form of draft legislation."

The Full Court decision includes consideration of the status of third party communication undertaken for the dominant purpose of enabling the Office of Liquor Gaming and Racing to seek legal advice ( following the Full Court in Pratt) [25-41] and whether privilege in some documents had been waived because they were dealt with in a manner that destroyed the State’s capacity to control further dissemination of the document [42-59}, finding privilege applied in both circumstances.

Meanwhile in separate proceedings brought by Sportsbet in which the State of NSW is a party not just an intervener, Justice Jagot considered similar claims of public interest immunity and legal privilege, and a new head for a claim to deny access to discovered documents-parliamentary privilege-which the State argued protected documents in three categories: (i) documents constituting or recording communications with Parliamentary Counsel for the purpose of preparing a draft bill, (ii) documents created for the purpose of a Minister’s use in Parliament, and (iii) documents relating to the preparation of a draft bill.Justice Jagot considered authorities back to 1688 before deciding [21] that with two exceptions she was

"not satisfied that the discovery or use of the material in question would infringe parliamentary privilege. I do not accept the State’s proposition that every document concerning the preparation of draft legislation is protected by parliamentary privilege because of the fact that, ultimately, Parliament makes legislation. The proposition depends on a connection with the business of Parliament far more distant and tenuous than that accepted as founding the privilege in Rowley v O’Chee."

The consideration of public interest immunity claims [23-63] covers similar ground to Justice Jagot's decision in Betfair. In balancing public interest considerations Justice Jagot found that the public interest in the proper administration of justice and the conduct of the litigation outweighed the public interest against disclosure of the documents to Sportsbet, in most instances except for a small number of documents that could be categorised as Cabinet related. Relevant considerations included that the matter at issue-wagering on horse racing- was not a high matter of state deserving the same degree of protection as matters of national security; that disclosure of the documents was unlikely to lead to a lack of candour or inhibition in the future by any of those involved including Parliamentary Counsel; that disclosure of any inter-State dealings would be highly unlikely to have any material impact on the workings of the Australian Racing Ministers' Conference or the officials and officers involved; and that the legislative process was complete, meaning little weight should be given to claims that disclosure posed the risk of premature, distracting, ill informed or misdirected public comment.

The State of NSW has to date generally been on the losing side in arguing the case for non-disclosure of documents in these proceedings.

Federal Court foray into public interest immunity

(Update: A reader-thanks James- says the Full Court allowed an appeal by the State against this decision last Friday, that reasons have not been published yet, but the orders are available online. They relate only to parts of the decision by Justice Jagot concerning some documents claimed to be subject to legal professional privilege and do not refer to the public interest immunity aspects of the decision. As at 2 November no written judgments have been published but will flag any observations relevant to that issue when they appear. This in the Sydney Morning Herald on 13 November, and today 17 November an analysis of the Full Court decision, particularly relevant to the point in the post below, about privilege and instructions to Parliamentary Counsel.)

An unusual intervention in civil proceedings between other parties by the State of NSW/ Attorney General saw Justice Jagot of the Federal Court of Australia give relatively rare consideration to claims of public interest immunity. The decision is of interest also in the context of the NSW Freedom of Information Act, and the Government Information (Public Access) Act to commence next year, and the requirement in both instances, similar to the test in this case, to balance public interest considerations for and against disclosure of deliberative documents.

The substantive matter has been brought by Betfair against a statutory authority, Racing NSW, which is independent of the government and not subject to ministerial direction. Betfair contends that conditions imposed by Racing NSW on its approvals to publish NSW race field information and requiring it to pay 1.5% of turnover are invalid because they contravene the guarantee of free trade between States in s 92 of the Constitution. According to Betfair the standard turnover conditions are discriminatory against an inter-State trader (Betfair) and protectionist in favour of an intra-State trader (TAB Limited).

The documents in dispute in these discovery proceedings concerned matters leading up to the drafting of legislative amendments for these conditions.

Justice Jagot stated [2-5] the general rule that a court will not order the production of a document in legal proceedings, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it; that the public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered; that the court must weigh the competing elements of the public interest; and that a claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service.

The documents in question held by Racing NSW related to matters considered and discussed in a working group that included officers of the government agency, the Office of Liquor Gaming and Racing (OLGR ) and representatives of each of the four racing bodies in NSW, convened by OLGR for the purpose of assisting it in developing legislative drafting instructions to be provided to Parliamentary Counsel concerning amendments to the Racing Administration Act and the promulgation of the Racing Administration Amendment (Publication of Race Fields) Regulation.

Some documents were drafts of the Regulation with drafting notes ensuring that Parliamentary Counsel had correctly understood the drafting instructions; a considerable number were reports to board meetings of Racing NSW identifying Racing NSW’s perception of the position of the NSW Government and its own position; some comprised the provision of statistical and other information by Racing NSW to the OLGR; others involved legal advice and communications about legal advice for which there were separate claims for legal professional privilege; none were papers prepared for Cabinet although one document prepared by Racing NSW and submitted to its Board recorded the contents of a proposed minute to Cabinet which must have been disclosed to Racing NSW. There was evidence that the proceedings of the Working Group were confidential.

Justice Jagot rejected the argument, on behalf of Betfair that the immunity claim failed at first instance because it was for a novel class of documents that were not Cabinet documents. She accepted submissions on behalf of the Attorney General that the classes of documents attracting the immunity at least on a prima facie basis involve a spectrum from those at the highest level (Cabinet documents) to those at lower levels (such as reports of junior Departmental officials). The strength or weakness of the public interest protected (or the harm that might result from disclosure) does not affect the existence of the immunity. It affects the balancing exercise between that public interest and the interest of the party seeking access in order to litigate its claim. In any event, it is well-recognised that the classes of immunity are not closed (authorities deleted). She also accepted the doctrine involved three considerations: - (i) the harm that might flow from disclosure, (ii) the material assistance that disclosure might provide to the party seeking access, and (iii) weighing those conflicting interests. [19-20]

The evidence brought to support the claim by an officer of OLGR was that disclosure of documents concerning the deliberation, advice and discussions of the working group could undermine willingness of people and entities to be involved in similar processes in the future and their confidence that they could give frank and fearless advice to government. The officer stated that disclosure of drafting instructions to Parliamentary Counsel and draft legislation, as well as related documents concerning discussions and deliberations of public servants about those matters, could be harmful to the public interest for much the same reasons.[21]

Justice Jagot stated [24]

"Consistent with the submissions of the Attorney-General, I consider that there is a public interest in ensuring that those involved in advising governments about policy issues proposed to be embodied in legislation feel able to give frank and fearless advice uninhibited by concerns about future disclosure. The fact that this interest in candour or lack of inhibition has been subject to a certain degree of judicial scepticism over more recent years does not mean that this aspect of the public interest may be dismissed outright.

However the key issue was the balancing test which involved an assessment of the nature and extent of the harm to the public interest in the proper functioning of the executive and legislative branches of government by reason of disclosure, compared to the nature and extent of the harm to the public interest in the proper functioning of the judicial branch by ensuring that all relevant documents are available to a party seeking to litigate a claim.[24]

After considering the issues and examining the documents Justice Jagot concluded [43]

(1) The public interest affected by disclosure (that is, future candour and lack of inhibition in those advising the NSW Government) exists. Yet, on the facts of this particular case, this is a relatively weak factor. The documents concern legislative amendments to racing legislation discovered by statutory bodies independent of the NSW Government. The bodies in question are bound by their enabling legislation to provide independent advice. Their interests cannot be inferred to be aligned consistently with those of the NSW Government. The nature of their functions makes it inherently unlikely that they will be anything less than candid and uninhibited in their advice. Insofar as the documents disclose drafting queries by Parliamentary Counsel, the nature of that office also indicates that there is no real basis for a concern about future inhibition or lack of candour. Accordingly, the public interest affected by disclosure is a factor of relatively insignificant weight in the present case.

(2) The decision-making process disclosed by the documents is complete. The public interest in question protected by non-disclosure is limited to cases in the future the same as or sufficiently similar to the present case to justify its consideration. In weighing this factor regard must also be had to the bodies in question – Racing NSW and Parliamentary Counsel’s Office – and my satisfaction that their functions are incompatible with any acceptance of a real risk of a future lack of candour or inhibition in their advice to government. Accordingly, this factor is also of relatively insignificant weight in the present case.

(3) The issue in relation to which production is sought does not involve the freedom of an individual from potentially wrongful conviction. But it does involve an alleged breach of a fundamental constitutional guarantee by the bodies which discovered the documents. Accordingly, this is a material factor entitled to weight in the present case.

(4) Given the nature of the issues in dispute in the principal case, there is a real likelihood that production of the documents will affect the outcome. Accordingly, this is a material factor entitled to weight in the present case.

(5) There is a real likelihood of injustice to Betfair if the documents are not produced for a number of reasons. The documents are centrally relevant to its case. The documents are in the possession of the respondents and not sought on subpoena from the State of NSW. As Betfair said, Racing NSW, at least in respect of part of its function, is the industry representative for the NSW racing lobby. The interests of Racing NSW cannot be inferred to align consistently with that of the NSW Government. They certainly cannot be inferred to be consistent with the interests of Betfair. The legislative amendments the subject of the documents enabled Racing NSW to impose the very conditions that Betfair says infringes the constitutional guarantee to its detriment. The fact that the discussions were expressed to be confidential does not alter the significance of these circumstances. All of these circumstances indicate that there would be a substantial injustice to Betfair by reason of non-production.

At law, therefore, frank and candour are alive and well as a public interest consideration, although a claim for nondisclosure of documents or information on this ground will be weak where decisions have been taken, don't disclose information concerning Cabinet deliberations broadly defined, and are outweighed by the public interest considerations that favour disclosure. Other than the administration of justice considerations relevant to this decision, the GIPA Act lists various factors to be taken into account in favour of disclosure including where disclosure could be expected to promote open discussion of public affairs, enhance accountability, or contribute to positive and informed debate

The Attorney Generals intervention seeking to prevent discovery of documents on grounds of legal professional privilege also produced mixed results. While some claims succeeded, those relating to drafting instructions to Parliamentary Counsel were rejected in all but one instance.. Justice Jagot said she did not accept

"that the drafting of legislation pursuant to an instruction to do so, in and of itself, involves a retainer the dominant purpose of which is the giving of legal advice. More is required to attract legal advice privilege than a mere instruction to Parliamentary Counsel to draft legislation and the provision by Parliamentary Counsel of draft legislation (even if clarification is thereafter sought as to the intent of the instructions). In short, there must be some express or implied request for legal advice. In common with the cases referred to by Betfair where questions arose as to whether wills and the legal transaction documents were subject to legal professional privilege, an instruction to draft legislation does not necessarily carry with it an implied request for legal advice. The provision by Parliamentary Counsel of draft legislation is also not necessarily the provision of legal advice. Whether or not legal advice is involved largely depends on the nature and terms of the retainer (in this case, the drafting instructions).[50]

51. I have read the drafting instructions to Parliamentary Counsel. They are pure drafting instructions. They seek the preparation of an exposure draft of legislation for the purpose of consultation with the industry. They do not contain any request for legal advice. I have also considered the draft legislation discovered. Other than in one case, it is simply draft legislation with certain drafting notes and does not contain anything that purports to be legal advice. I am satisfied that, other than in one case explained below, the discovered documents comprising draft instructions to Parliamentary Counsel (both draft and final) and draft legislation were not brought into existence for the dominant purpose of obtaining legal advice. Accordingly, those documents cannot attract legal professional privilege."