The documents were blocked under public interest immunity after Welles argued that the release of the documents would compromise the government’s position in two High Court challenges to amendments to Part 4A of the Online Safety Act 2021 that put the ban in effect, both of which the government is defending.
“Noting Part 4A of the Act is currently the subject of legal proceedings before the High Court of Australia (Digital Freedom Project Inc & Ors v Commonwealth & Ors; Reddit Inc v Commonwealth & Ors), I claim public interest immunity on documents in scope of this order as their release would prejudice the Commonwealth’s position in those legal proceedings,” Wells wrote in a letter to Special minister for State Don Farrell and forwarded to Senate President Sue Lines.
However, speaking with itnews, WA Senator Fatima Payman said she intends to challenge the validity of Well’s claim for public interest immunity in a fresh motion next week, based on Senate rules.
Payman was also responsible for the original motion for the order in the upper house last November, and in the new challenge, will require her to comply with that original order by February 6.
“Senator Payman does intend to pursue compliance action in the Senate in relation to [the orders],” a spokesperson told itnews.
“Senator Payman does not rule out further action in this area, if the Minister for Communications remains noncompliant, including requiring the Minister representing the Minister for Communications in the Senate to attend the Senate and provide an explanation of the failure to comply with the order for the production of documents.”
The original order, which Wells was originally given until December 12, 2025 to comply with, focused on communications between Well’s office and the Office of the eSafety Commissioner and the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts.
Payman’s goal was to discover what the government knew about the potential for a constitutional challenge to the social media ban before it put the legislation in place.
It is understood that Payman will argue in the new motion that the contents of the documents is unlikely to sway the High Court challenges and that it was in public interest to reveal the documents.
Daniel Croft