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Tuesday, 11 October 2016
Page: 1471


Senator XENOPHON (South Australia) (15:49): I move:

That the Senate—

(a) notes that:

   (i) on 12 September 2016 the Senate agreed to an order for production of documents directed at the Minister representing the Minister for Small Business for the legal advice referred to by the Australian Statistician during his appearance on 7.30 on 3 August 2016,

   (ii) on 14 September 2016 the Minister representing the Minister for Small Business advanced a public interest immunity claim that the longstanding practice of successive governments has been not to disclose privileged legal advice to conserve the Commonwealth's legal and constitutional interest,

   (iii) the Senate has not accepted that there is a general public interest immunity that allows ministers or departments to withhold legal advice, but rather that each claim of public interest immunity is assessable by the Senate and that information of the particular potential harm should be provided to the Senate to make this assessment,

   (iv) on 16 July 1975 the Senate laid out by resolution its position with respect to public interest immunity claims - paragraph 4 of that resolution makes it clear that, while the Senate may permit claims of public interest immunity to be advanced, it reserves the right to determine whether a particular claim will be accepted, and

   (v) Australian courts have acknowledged that for the Parliament to undertake its duties it must be able to require the Executive to produce documents, and that the justification for legal professional privilege does not apply; and

(b) does not accept the public interest immunity claim made by the Minister representing the Minister for Small Business in relation to the order for production of documents of 12 September 2016, and orders that there be laid on the table by the Minister representing the Minister for Small Business, by the start of business on the next day of sitting, the legal advice referred to by the Australian Statistician during his appearance on 7.30 on 3 August 2016.

Question agreed to.