7Public interest immunity

7 Public interest immunity

7.1 If a request or demand to provide documents or information in the conduct of litigation being handled by a non‑corporate Commonwealth entity (the litigating entity) could give rise to a claim of immunity on a public interest ground for which another non‑corporate Commonwealth entity has administrative responsibility (the PII entity), the litigating entity is to refer the decision whether to make the claim to the PII entity or the PII entity’s Minister.

Note: The appropriate PII entity or Minister will vary according to the nature of the material, and more than one entity or Minister may need to be involved. The following entities are commonly involved in a claim for public interest immunity:

(a) the Australian Federal Police for some law enforcement matters
(b) the Attorney‑General’s Department (Security and Critical Infrastructure Division) and the Australian Security Intelligence Organisation for national security matters
(c) the Department of the Prime Minister and Cabinet for Cabinet matters (see also Chapter 7 of the Cabinet Handbook), and
(d) the Department of Foreign Affairs and Trade for matters relating to relations with foreign countries.

Note: For example, in the course of litigation about a contract with a foreign government agency, a Cabinet document relating to international relations might be identified as relevant to the proceedings. In such a case, the litigating entity is to refer the document in question to the Departments of the Prime Minister and Cabinet and Foreign Affairs and Trade for decision about any public interest immunity claim that might be made.

7.2 If a claim for public interest immunity is being resisted by another party in litigation, the PII entity is to be responsible for the handling of the claim after consultation with the litigating entity. If a disagreement arises as to the handling of the claim, the matter is to be referred to the Attorney‑General or OLSC.

Note: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.