Michael Rennie has prepared a detailed paper discussing PII claims drawing on his experience acting for numerous government agencies. Here follows a useful overview.
A claim of public interest Immunity (PII) is an objection to producing or admitting into evidence sensitive material that would prejudice the ability of the government to continue to fulfil an essential function. It is often described as a privilege, similar to client legal privilege, but it is a privilege that is only available to government agencies. Essentially, the government requests special relief from the Court’s usual powers and processes to compel parties to produce material to the Court on the basis that it would harm the ability of government to function if the particular information were revealed.
PII claims often arise in criminal proceedings, but can be found in all jurisdictions that deal with government information.
When PII claims do arise, the Court’s mechanisms for determining a PII claim depart from usual adversarial proceedings. The government body making a PII claim has the opportunity to file confidential submissions and evidence in support of the claim, and the Court is not required to allow the opponent to the claim to engage with that material. Similar to an ex parte application, this special privilege imposes a heavy onus on the government body making a PII claim. Each claim must be responsibly made and solidly based. The material in support of the claim must state with precision why the particular information involved would cause an injury to the public interest if it was released: Sankey v Whitlam (1978) 142 CLR 1 per Mason J at 96-97,
A successful PII claim has the effect of removing the sensitive material from the proceedings. Neither side can use it to prove the underlying case. Reliance on secret evidence is abhorrent to the exercise of federal judicial power within the Australian legal system. (See for example Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, per McHugh J at . “Secret evidence”, or evidence kept from one side may be used in exercising federal executive power, for example in the Administrative Appeals Tribunal: see ss.35, 35AA, 36, 36B, 37, 39A and 39B of the Administrative Appeals Tribunal Act 1975 (Cth)).
If the material under the PII claim is produced to the Court for the purposes of resolving the claim, it can only be considered for the purposes of resolving the PII claim and not the substantive issues in the proceedings.
If there is material that would assist an accused person to defend criminal proceedings, and a PII claim would withhold that material, then the proper course would be for the prosecution to be stayed rather than to risk an unfair trial: Alister v R (1984) 154 CLR 404 per Murphy J at 431 and Brenna J at 457. This concept underlies any consideration of the prosecution’s disclosure obligation when dealing with PII claims.
The test for whether a PII claim is made out is effectively the same under the common law and s.130 of the Evidence Act 1995 (NSW) and is a balancing exercise:
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (emphasis added)
To allow the Court to apply this test, the person seeking the sensitive information must state the reason why that information is sought. In the case of a subpoena, the party issuing the subpoena must state the legitimate forensic purpose (LFP) behind the subpoena. A subpoena that does not have a LFP is an abuse of process and must be struck out: R v Tastan (1994) 75 A Crim R 498 at 508. See also Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at 550 - 555.
For those parties seeking access to material subject to a PII claim, a detailed statement of LFP is often the primary means available to attempt to resolve the issue. Most often a litigant will want information to prove that something did or did not occur, and will not be concerned about methodology as to how information was obtained. In many cases this LFP can be answered with the removal or redaction of sensitive information, in which the litigant has no real interest. Even where the LFP cannot be accommodated in this way, the LFP allows the Court to apply the balancing test required to resolve the PII claim. On some occasions, the Court has been able to resolve the PII claim, but state that the sensitive material did not assist the LFP, providing some comfort to the litigant that they have not been denied relevant information: R v Baladjam (No.31)  NSWSC 1453.
PII claims are often complex in that they also demand rigorous information management skills of the parties to the claim. The law surrounding the field is not overly complex, but experience with these practical concerns is often invaluable in either making, or responding to, a PII claim.
2 December 2014
About the Author
Prior to coming to the Bar in 2011, Michael Rennie was a Senior Lawyer with the Australian Government Solicitor (AGS) focussing on Commonwealth enforcement litigation, including acting for ASIO, Australian Federal Police and the Commonwealth Attorney-General. Michael has significant expertise in relation to enforcement action by ACCC, ASIC, APRA and other Commonwealth regulators, and in managing large scale, high profile litigation. Michael brings that experience to bear for the benefit of his clients in both public and private spheres and has a growing commercial practice. Since coming to the Bar, Michael has acted in PII claims for NSW Police and the Australian Federal Police.