Linda Reynolds (WA, Liberal Party, Minister for Government Services) Share this | Hansard source

Mr President, the government does not make public interest immunity claims lightly. We never have and we never will, and we certainly don't do it without the careful consideration of the particular harm to the public interest. I have carefully reviewed the claim. I have personally, again, carefully reviewed the claim of public interest immunity and recognise that it would not be in the public interest to disclose the information over which the claim is being reiterated in relation to legal advice and also to the deliberations of cabinet.

The government has engaged in good faith with the Senate and its committees at all times. We have provided updates and additional explanations as litigation in relation to the income compliance program has progressed. In addition, government agencies and witnesses have responded to many hundreds of questions at hearings and on notice in relation to the design and implementation of the income compliance program.

Firstly, I go to the claim for the disclosure of information relating to legal advice. It doesn't automatically follow from the Federal Court's approval of the class action settlement that there is no longer a proper basis for the government to maintain public interest immunity over the legal advice it received in connection with the income compliance program. The claim for information relating to legal advice has been made on two grounds. The first is the very, very long-held practice of claiming privilege over legal advice and associated documents obtained in the course of normal decision-making processes of government. The second ground is in relation to the possible prejudice to the Commonwealth in relation to the conduct of litigation relating to the income compliance program. The claim is grounded in the importance of government being able to obtain legal advice in relation to normal decision-making functions without the risk of the advice or the information relating to that advice being disclosed. If such a risk existed, it could prevent governments from appropriately seeking and obtaining such legal advice. The availability of frank legal advice to decision-makers within government should and must be protected as a fundamental principle of good government.

Although the class action settlement has been approved, as recognised by the Federal Court on 11 June 2021, not all potential claims arising from the income compliance program will be resolved through the class action. Disclosing the content or dates of any legal advice would obviously have the very real potential of prejudicing the Commonwealth's ability to defend the claims. To this point, I note that the Federal Court has previously found advices that are the subject of this public interest immunity interest claim to be privileged legal advice. In fact, His Honour Justice Lee upheld the Commonwealth's claim of legal professional privilege in connection with every one of the documents that was the subject of the challenge from Gordon Legal. Allow me to remind the Senate that former Labor minister Joe Ludwig told Senate estimates that he would refuse to provide the Labor government's legal advice for the very same reason. He said:

… it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.

Similarly, this practice has also been previously outlined by former Hawke-Keating government Attorney-General the Hon. Gareth Evans QC, who said in this very chamber in 1995:

Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.

Secondly, the minute disclosed deliberations of cabinet. I will now turn to the public interest immunity claims in relation to cabinet deliberations. Providing a copy of or information about the minute requested by the Senate Community Affairs References Committee would disclose or could reasonably be expected to disclose the deliberations of cabinet. It is in the public interest for the deliberations of the cabinet not to be made public. By making a public interest claim in respect of the minute, the government is doing no more than standing by a well-established right to protect the disclosure of cabinet deliberations, in the same way as has been done by successive past governments. In interlocutory hearings in the class action, the Federal Court upheld claims of public interest immunity in relation to cabinet materials, including this minute. Further, as recently as 4 August 2021, the freedom of information division of the Administrative Appeals Tribunal found that this document was properly the subject of cabinet exemption under the Freedom of Information Act.

In closing, the letter from me setting out a detailed explanation about the basis of the public interest immunity claim has been provided to the chair of the Community Affairs References Committee.