Footnotes

CHAPTER 1 - Introduction

[1]        Journals of the Senate, No. 9—10 December 2013, p. 307.

[2]        Journals of the Senate, No. 3—14 November 2013, pp 131–132.

[3]        Journals of the Senate, No. 3—14 November 2013, pp 131–132.

[4]        The Hon Scott Morrison MP, Minister for Immigration and Border Protection, Letter to the Chair, Senate Legal and Constitutional Affairs Committee, 18 November 2013, p. 2 (tabled in the Senate on 2 December 2013).

[5]        The Hon Scott Morrison MP, Letter to the Chair, Senate Legal and Constitutional Affairs Committee, 18 November 2013, p. 2 (tabled in the Senate on 2 December 2013).

[6]        The Hon Scott Morrison MP, Letter to the Chair, Senate Legal and Constitutional Affairs Committee, 18 November 2013, pp 2–4 (tabled in the Senate on 2 December 2013).

[7]        Journals of the Senate, No. 4—2 December 2013, p. 153.

[8]        Journals of the Senate, No. 5—3 December 2013, p. 214.

[9]        Journals of the Senate, No. 6—4 December 2013, p. 226.

[10]      Senator the Hon Michaelia Cash, Assistant Minister for Immigration and Border Protection, Senate Hansard, 4 December 2013, pp 844–845.

CHAPTER 2 - The Senate's authority to determine claims of public interest immunity and the claim before the committee

[1]        Journals of the Senate, No. 9—10 December 2013, p. 307.

[2]        Harry Evans, Rosemary Laing, eds., Odgers' Australian Senate Practice, thirteenth edition, Department of the Senate 2012, p. 39.

[3]        Dr Rosemary Laing, Clerk of the Senate, Advice to the Legal and Constitutional Affairs References Committee, 7 January 2014, pp 1–2.

[4]        Odgers, p. 75.

[5]        Odgers, pp 74–75.

[6]        Evans, H., The Senate's Power to Obtain Evidence, November 2008, p. 2. See pages 2–4 for full explanation of the limitations that have some parliamentary recognition and the possible legal limitations.

[7]        Dr Rosemary Laing, Advice to the committee, 7 January 2014, pp 3–4.

[8]        Evans, H., The Senate's Power to Obtain Evidence, November 2008, p. 5.

[9]        The Clerk explained to the committee that a claim of public interest immunity before a court is a very different thing from a claim of public interest immunity before a parliament: 'It is really only by analogy to a court that we use the term "public interest immunity" in parliamentary contexts. It is not a legal right, or a defined set of legal principles. Before a court, things are very different, because you are talking about matters of law.' Source: Dr Rosemary Laing, Clerk of the Senate, Proof Committee Hansard, 31 January 2014, p. 7.

[10]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 5.

[11]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, 7 January 2014, p. 8. See also, Odgers, pp 596–597.

[12]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 8.

[13]      Journals of the Senate, No. 87—16 July 1975, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=CHAMBER;id=chamber%2Fjournals%2F1975-07-16%2F0005;orderBy=_fragment_number,doc_date-rev;page=22;query=Dataset%3Ajournals%20Decade%3A%221970s%22;rec=0;resCount=Default, (accessed 10 February 2014).

[14]      How contested claims of public interest immunity should be considered has been the subject of debate for many years however, the latest resolution of the Senate is that of 13 May 2009. See Odgers', pp 602–610 for a discussion of early cases and pp 610–623 for more recent cases.

[15]      Dr Rosemary Laing, Clerk of the Senate, Proof Committee Hansard, 31 January 2014, p. 4.

[16]      Proof Committee Hansard, 31 January 2014, p. 4.

[17]      Procedure Committee, Third report of 2009, August 2009, p. 1.

[18]      Odgers, pp 596–597.

[19]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 5.

[20]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, pp 5–6.

[21]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 3.

[22]      Proof Committee Hansard, 31 January 2014, p. 2.

[23]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 7.

[24]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 7.

[25]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 8.

[26]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 8.

[27]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 8.

[28]      The order of the Senate of 3 December 2013 resolved that the government had failed to comply with the order for the production of documents of 14 November 2013; again ordered the production of those documents; and rejected the grounds of public interest immunity put forward by the government.

[29]      Senator the Hon Michaelia Cash, Assistant Minister for Immigration and Border Protection, Letter to the Clerk of the Senate, 4 December 2013, p. 1, the Hon Scott Morrison MP, Minister for Immigration and Border Protection, Letter to the Chair, Senate Legal and Constitutional Affairs Committee, 4 December 2013, p. 1.

[30]      Senator the Hon Michaelia Cash, Assistant Minister for Immigration and Border Protection, Senate Hansard, 4 December 2013, p. 67.

[31]      Senate Hansard, 4 December 2013, pp 67–68.

[32]      According to the minister, 'the information sought in the orders for the production of documents covered a broad range of operational information, which includes but is not limited to on-water tactics, training procedures, operational instructions, specific incident reports, intelligence, posturing and deployment of assets, timing and occurrence of operations and the identification of individual attempted voyages, and passenger information including nationalities involved in those voyages'. The Hon Scott Morrison MP, Minister for Immigration and Border Protection, Proof Committee Hansard, 31 January 2014, p. 11.

[33]      Proof Committee Hansard, 31 January 2014, p. 11.

[34]      Proof Committee Hansard, 31 January 2014, p. 11.

[35]      Senator Sarah Hanson-Young, Senate Hansard, 4 December 2013, p. 69.

[36]      Senator the Hon Kim Carr, Senate Hansard, 4 December 2013, p. 69.

[37]      Senator the Hon Kim Carr, Senate Hansard, 4 December 2013, p. 69.

[38]      Mr Martin Bowles PSM, Secretary, Department of Immigration and Border Protection, Proof Committee Hansard, 31 January 2014, p. 23.

[39]      A copy of the department's letter is at Appendix 3.

[40]      Mr Martin Bowles PSM, Secretary, Department of Immigration and Border Protection, Letter to the Legal and Constitutional Affairs Committee, 29 January 2014, p. 2.

[41]      Proof Committee Hansard, 31 January 2014, p. 21.

[42]      Proof Committee Hansard, 31 January 2014, pp 20 and 44.

[43]      Proof Committee Hansard, 31 January 2014, p. 43.

[44]      The Hon Scott Morrison MP, Minister for Immigration and Border Protection, Proof Committee Hansard, 31 January 2014, p. 13. 

[45]      Mr Martin Bowles PSM, Secretary, Department of Immigration and Border Protection, Proof Committee Hansard, 31 January 2014, p. 23.

[46]      See also, The Hon Scott Morrison MP, Minister for Immigration and Border Protection, Letter to the Chair, Senate Legal and Constitutional Affairs Committee, 18 November 2013, pp 2–4 (tabled in the Senate on 2 December 2013).

[47]      See the Hon Scott Morrison MP, Minister for Immigration and Border Protection and Lieutenant General Angus Campbell DSC AM, Commander, Joint Agency Taskforce, Proof Committee Hansard, 31 January 2014, pp 10 and 12. See also Letter from Lieutenant General Angus Campbell DSC AM, received 6 February 2014 (available: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Public_Interest_Immunity/Additional_Documents). 

[48]      Senator Penny Wright, Committee Chair, Proof Committee Hansard, 31 January 2014, p. 13. 

[49]      Letter from Lieutenant General Angus Campbell DSC AM, received 6 February 2014 (available: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Public_Interest_Immunity/Additional_Documents). 

[50]      Dr Rosemary Laing, Advice to Legal and Constitutional Affairs References Committee, 7 February 2014, pp 1–2.

CHAPTER 3 - An option for reform

[1]        Referred to in the Senate as orders for the production of documents.

[2]        Dr Rosemary Laing, Clerk of the Senate, Advice to the Senate Legal and Constitutional Affairs Committee, 7 January 2014, p. 3.

[3]        Referred to in the Senate as 'public interest immunity'.

[4]        Mr David Blunt, Clerk of the New South Wales Legislative Council, Submission 1, p. 1.

[5]        Mr David Blunt, Clerk of the New South Wales Legislative Council, explained in his submission that 'while the High Court in Egan v Willis clearly affirmed the power of the Council to order the production of state papers, it did not consider the production of papers subject to a claim of privilege by the executive... [and that t]his was not resolved until the decision in Egan v Chadwick in June 1999'. Submission 1, p. 3.

[6]        Mr David Blunt, Clerk of the New South Wales Legislative Council, Proof Committee Hansard, 11 February 2014, p. 2.

[7]        Proof Committee Hansard, 11 February 2014, p. 5.

[8]        Proof Committee Hansard, 11 February 2014, p. 4.

[9]        Submission 1, p. 4.

[10]      Proof Committee Hansard, 11 February 2014, pp 2–3.

[11]      Proof Committee Hansard, 11 February 2014, p. 2.

[12]      Proof Committee Hansard, 11 February 2014, pp 2–3.

[13]      Proof Committee Hansard, 11 February 2014, p. 2.

[14]      Submission 1, p. 3.

[15]      Submission 1, pp 3–4.

[16]      Proof Committee Hansard, 11 February 2014, p. 7.

[17]      Proof Committee Hansard, 11 February 2014, p. 5.

[18]      Submission 1, p. 4.

[19]      Proof Committee Hansard, 11 February 2014, p. 4.

[20]      Proof Committee Hansard, 11 February 2014, p. 2.

[21]      Submission 1, p. 4.

[22]      Submission 1, p. 4.

[23]      Submission 1, p. 4.

[24]      Submission 1, p. 4.

[25]      Dr Rosemary Laing, Clerk of the Senate, Proof Committee Hansard, 31 January 2014, pp 2–3.

[26]      Proof Committee Hansard, 31 January 2014, p. 3.

[27]      The Clerk noted that '[t]he Senate can no longer order the Auditor-General to do such things because the Auditor-General's legislation was changed in 1997 to guarantee his independence from being directed by anybody, including a house of the parliament'. Proof Committee Hansard, 31 January 2014, p. 3.

[28]      Proof Committee Hansard, 31 January 2014, pp 2–3.

[29]      Proof Committee Hansard, 31 January 2014, pp 2–3.

[30]      Proof Committee Hansard, 31 January 2014, p. 3.

[31]      Proof Committee Hansard, 11 February 2014, p. 8.

[32]      Proof Committee Hansard, 11 February 2014, p. 4. 'One of the small number of changes to the system that the Privileges Committee recommended last year was that the standard return period in an order for papers go up to 21 days, so that it not place an inordinate burden on the Public Service. So, 21 days is the average time for documents to be returned. It is up to members how quickly they come and inspect the documents. Once a dispute is lodged in relation to a claim of privilege and an arbiter is appointed, then under the standing order they have seven days to produce their report. In some cases they have been given extensions. Then, once the report is provided, the various procedural steps that have to happen in the house for the status of the documents to change take three sitting days. It is also important to emphasise that those three sitting days provide an opportunity for careful consideration and deliberation on those matters'. Proof Committee Hansard, 11 February 2014, p. 9.

[33]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 8.

[34]      Dr Rosemary Laing, Advice to the committee, 7 January 2014, p. 8.

[35]      Committee of Privileges, 52^nd Report, 1 March 1995, available: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Privileges/Completed_inquiries/~/media/wopapub/senate/committee/priv_ctte/completed_inquiries/pre1996/report_052/report_pdf.ashx (accessed 18 February 2014).

Dissenting Report – Coalition Members of the Committee

[1]        Journals of the Senate – Orders for the Production of Documents – 42nd Parliament
No. 129–24 June 2010, pp 1–22.

[2]        Journals of the Senate – Orders for the Production of Documents – 43rd Parliament,
No. 155–28 June 2013, pp 1–19.

[3]        Journals of the Senate, No. 68–13 May 2009, p. 1941.

[4]        Mr Harry Evans, then Clerk of the Senate, Advice to Senator Mathias Cormann Regarding Notice of Motion, 17th March 2009.

[5]        Lieutenant General Angus Campbell, Proof Committee Hansard, 31 Jan 2014, pp 12–13.

[6]        The Hon. Scott Morrison, MP, Minister for Immigration and Border Protection, Proof Committee Hansard, 31 Jan 2014, pp 10–12.

[7]        Senator Sarah Hanson-Young, Senate Hansard, 4 December 2013, p. 69.

[8]        Senator the Hon Kim Carr, Senate Hansard, 4 December 2013, p. 69.

[9]        Senator Zed Seselja, Proof Committee Hansard, 31 January 2014, p. 5.

[10]      Dr Rosemary Laing, Clerk of the Senate, Proof Committee Hansard, 31 January 2014, p. 5.

[11]      Dr Rosemary Laing, Clerk of the Senate, answer to question taken on notice, received 31 January 2014.

[12]      Mr Martin Bowles, Secretary of the Department of Immigration and Border Protection, Correspondence to the Committee, 29 January 2014.

[13]      Dr Rosemary Laing, Clerk of the Senate, Advice to the Legal and Constitutional Affairs References Committee, 7 January 2014, p. 3.

[14]      The Hon. Scott Morrison MP, Minister for Immigration and Border Protection, Proof Committee Hansard, 31 January 2014, pp 10–12.