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Chapter 19 - Relations with the executive government
Other
jurisdictions
Other jurisdictions have not resolved the
problem of determining executive government claims of public interest immunity
so as to avoid the defect of the government being the judge in its own cause.
In most
jurisdictions with “Westminster” systems of government, the executive
government controls the lower house and the question arises only occasionally
in second chambers not under government control, so that there has been no
regular solution found.
In 1998 and 1999
the New South Wales Legislative Council succeeded in extracting information
from the government by suspending the Treasurer, a member of the Council, from
service in the Council, its power to do so having been
upheld by the Court of Appeal: Egan v Willis and Cahill 1998 158 ALR 527; Egan v Chadwick and others
1999 46 NSWLR 563. Following this case the
Council adopted the procedure of appointing an independent arbiter to assess
any claims of public interest immunity arising from orders for documents. This
procedure has worked successfully in several cases.
The Houses of
the United States Congress, which operate independently of the executive, have
not found a satisfactory remedy, although they are usually successful in
practice in extracting evidence from reluctant administrations. As noted in
Chapter 2, the US Houses possess inherent powers to require the attendance of
witnesses, the giving of evidence and the production of documents, and to
punish contempts. They have enacted a statutory criminal offence of refusal to
give evidence. They may also seek to have their requirements enforced through
the courts by civil process. In serious cases of conflict between the Houses
and the administration over the production of documents, administration
officers are “cited” for contempt, but these matters usually end in some
compromise and with documents handed over. In some cases, presidents have
successfully withheld documents from the Houses. The courts, while suggesting
some constitutional basis for executive privilege, and accepting jurisdiction
in particular cases, have not become involved in determining specific claims of
executive privilege. (Senate Select Committee v Nixon 1974 498 F 2d
725; US v Nixon 1974 418 US 683; US v AT&T 1977 567 F 2d 121; US
v House of Representatives 1983 556 F Supp. 150; In re Sealed Case 1997 121 F 3d 729; Committee
on the Judiciary, US House of Representatives v Miers, 31/7/2008, not
reported). Contests between Congress and
administration are generally left to “the ebb and flow of political power”
(Archibald Cox, quoted in report of Committee of Privileges, PP 215/1975, p.
47).
While the public interest and the rights of individuals may be harmed
by the enforced disclosure of information, it may well be considered that, in a
free
state,
the greater danger lies in the executive government acting as the judge in its
own cause, and having the capacity to conceal its activities, and, potentially,
misgovernment from public scrutiny. It may also be considered that a
representative House of the Parliament is the best judge of the balance of
public interests.
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