FEDERAL COURT OF AUSTRALIA

Police Federation of Australia v Nixon [2011] FCAFC 161

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    Unless by 12 noon on 19 December 2011, one or more of the parties files written submissions objecting to the proposed orders in paragraph [94] of the Reasons for Decision (the Proposed Orders) and outlining the ground or grounds of that objection, the Proposed Orders will be entered at 4:00pm on 19 December 2011.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    Unless by 12 noon on 19 December 2011, one or more of the parties files written submissions objecting to the Proposed Orders and outlining the ground or grounds of that objection, the Proposed Orders will be entered at 4:00pm on 19 December 2011.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    Unless by 12 noon on 19 December 2011, one or more of the parties files written submissions objecting to the Proposed Orders and outlining the ground or grounds of that objection, the Proposed Orders will be entered at 4:00pm on 19 December 2011.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

The Court:

INTRODUCTION

1    This appeal concerns the proper construction of the Whistleblowers Protection Act 2001 (Vic) (WP Act) and, in particular, the application of that Act to a complaint under the Police Regulation Act 1958 (Vic) (the PR Act). It raises important questions about the protections provided by the WP Act to police officers who make complaints against another member of the police force.

PROCEDURAL HISTORY

2    By a Second Further Amended Application dated 4 July 2008 (the SFAA) and the Second Further Amended Statement of Claim dated 4 July 2008 (the SFASOC), the Police Federation of Australia (the PFA) and The Police Association (the PA) (collectively the Unions) seek pecuniary penalties and other relief under s 807 of the Workplace Relations Act 1996 (Cth) (the WR Act) and, in the accrued jurisdiction of the Court, declarations that actions taken by Ms Christine Nixon (the then Chief Commissioner of Victoria Police) against Mr Paul Mullett (Mr Mullett) under Div 2 of Pts IV and IVA of the PR Act were done for an unauthorised or improper reason or reasons. At the relevant time, Mr Mullett was the Secretary of the PA.

3    In general terms, by the SFASOC, the Unions allege that over the course of several years Ms Nixon (in her capacity as the then Chief Commissioner of Victoria Police), had difficult dealings with Mr Mullett in his capacity as the Secretary of the PA and came to resent him for his activities as a union official. The Unions allege that those matters moved Ms Nixon to take various actions against Mr Mullett such as issuing notices of suspension in November 2007, making public statements against him at that time and continuing with an internal investigation into bullying allegations that had been made against him. By their Amended Defence, Ms Nixon and the State of Victoria (collectively, the Respondents) deny the central allegations.

4    Pursuant to procedural directions of the Court, on 13 March 2009 the Unions filed and served a list of 49 categories of documents for discovery that they sought from the Respondents (the Categories). It was common ground, both before the primary judge and on the hearing of this Appeal, that documents in a Victoria Police internal investigation file into the bullying allegations against Mr Mullett were caught by the Categories.

5    On 27 July 2009, Ms Nixon filed a document entitled “Final List of Documents” (FRL). In Sch 1 Pt 2 of the FRL, Ms Nixon listed the documents from the Victoria Police investigation file that met the Categories (the Investigation File). Ms Nixon claimed exemption from producing for inspection the Investigation File on two grounds – first, that the information in the documents was prohibited from disclosure by operation of s 22 of the WP Act and, secondly, in relation to some of the documents in the Investigation File, on the further ground by the operation of public interest immunity.

6    On 28 July 2009, the State of Victoria filed a document entitled “Final List of Documents” (SRL). The State of Victoria claimed exemption from producing for inspection those documents listed in Sch 1 Pt 2 of the SRL on the ground of public interest immunity. It also claimed exemption from producing for inspection those documents listed in Sch 1 Pt 3 of the SRL on the ground that the documents were irrelevant and, further or alternatively, that certain documents (numbered 24-40, 43, 50-52, 54) were also subject to a claim for public interest immunity.

7    By a notice of motion dated 30 July 2009, the Unions sought production of the documents in the Investigation File and in Pts 2 and 3 of Sch 2 of the SRL.

8    By another notice of motion dated 30 July 2009, the Respondents sought orders, inter alia, that they not be required to conduct further searches for various documents or to produce documents requested by the Unions in Item 10 of the Categories. Item 10 was described as follows:

All documents of:

(i)    Steve Bracks;

(ii)    Tim Holding;

(iii)    The Office of the Premier of Victoria and the Office of the Victorian Minister for Police and Emergency Services; and

(iv)    Tim Pallas;

in the period 1 October 2006 to 30 November 2006 (inclusive) relating to:

(a)    the 2006 Discussions referred to in paragraph 74 of the SFASOC; or

(b)    the 2006 Agreement referred to in paragraph 76 of the SFASOC.

9    In paragraphs 74 and 76 of the SFASOC, the Unions pleaded that:

[74]    In or about November 2006 Mullett and other representatives of TPA and/or PFA held discussions with representatives of then Premier Steven Bracks and Minister for Police Tim Holding with respect to the terms for a new enterprise bargaining agreements for members of the force (“the 2006 Discussions”).

…

[76]    As a result of the 2006 Discussions, the Premier and Minister for Police provided an agreement and commitment to Mullett on matters including the terms for a new enterprise bargaining agreement for members of the force (“the 2006 Agreement”).

Particulars

The 2006 Agreement is in writing and constituted by a letter to Mullett signed by the Premier and Minister for Police and dated 6 November 2006. A copy of the 2006 Agreement is available for inspection at the offices of the applicants’ solicitors.

10    The Respondents’ amended defence stated:

[74]    As to paragraph 74 they say:

(a)    on or about November 2006 Mullett and other representatives of [the PA] and/or PFA held discussions with representatives of both the Hon. Steve Bracks MP, the then Premier of Victoria and the Hon. Tim Holding, then Minister for Police and Emergency Services;

(b)    the discussions were in respect of the matters contained in the letter referred to in paragraph 76 herein;

(c)    they otherwise deny paragraph 74.

…

[76]    As to paragraph 76 they say:

(a)    on 6 November 2006, the Hon. Steve Bracks MP, the then Premier of Victoria and the Hon. Tim Holding, the then Minister for Police and Emergency Services wrote to [the PA] on Victorian Australian Labour Party letterhead, addressed to Mullett, confirming a set of commitments recorded in a document attached to the letter headed “Record of Commitments” as to what the Victorian Parliamentary Labor Party would do in terms of policing policy “when in Government”;

(b)    they otherwise deny paragraph 76.

11    On 1 April 2010, the primary judge made orders in relation to both notices of motion (the April 2010 Orders and Reasons). His Honour decided, inter alia, that:

1.    s 22 of the WP Act protected from disclosure information brought into existence or gathered in the course of making, receiving or investigating a complaint of serious misconduct by a member of Victoria Police: at [12]-[13];

2.    accordingly, s 22 of the WP Act was of broad application and precluded the production of the whole or many of the documents in the Investigation File: at [15];

3.    the documents numbered 54 (the Complaint) and 73 (the Witness Statements) in the Investigation File should not be produced on the basis that “evidenced simply by their description, s 22 of the WP Act precluded their production”: at [13];

4.    the rest of the Investigation File should be privately inspected by his Honour in his chambers (adopting the approach suggested by Wilcox J in Jackson v Wells (1985) 5 FCR 296) to ascertain whether any document in the file was relevant and necessary to be produced and, if so, whether the document in whole or part was not subject to production because it contained information of the kind described in s 22 of the WP Act or by operation of public interest immunity: at [13]-[14] and [26];

5.    the course summarised in sub-paragraph 4 above should be adopted to resolve the public interest immunity claim made over the documents listed in Sch 1 Pts 2 and 3 of the SRL: at [27]; and

6.    Item 10 of the Categories should be amended to read “The final signed version of the 2006 Agreement referred to in paragraph 76 of the [SFASOC]”: at [38].

On 8 April 2010, the Unions applied for leave to appeal against the April 2010 Orders.

12    Fourteen months later, on 2 June 2011 and after inspecting the documents, the primary judge made an Order requiring the production for inspection by the Unions of some of the documents in the Investigation File (listed in Sch A to the Order) and some of the documents listed in Sch 1 Pts 2 and 3 of the SRL (listed in Sch B to the Order), subject to redaction where indicated (the June 2011 Orders and Reasons)

13    The Unions sought leave to appeal against the April 2010 Orders (VID 252 of 2010), and both the Unions (VID 583 of 2011) and the Respondents (VID 584 of 2011) sought leave to appeal against the June 2011 Order. On 20 June 2011, the three applications for leave to appeal were heard. Orders were made “by consent” purporting to grant leave to appeal to the Unions and the Respondents, staying the operation of the June 2011 Order and ordering that the three appeals be heard together. Orders granting leave to appeal cannot and should not be made by consent of the parties. It is for the Court to determine whether leave should be granted or not and, of course, in making that decision the acknowledgement by the respondent that the matter is one proper for the grant of leave will often be a very powerful reason for the Court to make the grant that is sought. But neither the lack of opposition to the grant nor a respondent’s active support for the application is conclusive of the issue. For the avoidance of doubt, there should now be an Order that the parties have the leave to appeal that they seek.

14    In any event, on 1 July 2011, three notices of appeal were filed – one in each of VID 252 of 2010, VID 583 of 2011 and VID 584 of 2011.

ISSUES

15    The issues on appeal may be summarised as follows:

1.    whether s 22 of the WP Act, when properly construed, prevented Ms Nixon from disclosing any of the documents in the Investigation File;

2.    further or alternatively, whether public interest immunity prevented the disclosure of any of the documents in the Investigation File on the basis that information in those documents might reveal the identity of one or more informers; and

3.    whether public interest immunity prevented the disclosure of any of the documents in Sch 1 Pt 2 and specified documents in Pt 3 of the SRL on the basis that those documents fell within a recognised class of documents the disclosure of which was contrary to the public interest.

RELEVANT FACTS

16    The following chronology of events is taken from an affidavit sworn by Assistant Commissioner Cornelius (Cornelius). The chronology was not in dispute:

1.    on 21 February 2006, Cornelius was “notified in a preliminary manner by a confidential source of a complaint about the conduct of one or more sworn members of Victoria Police”;

2.    on 23 February 2006, Cornelius “received from the confidential sources a written copy and explanation of the complaint” and received from the complainants a copy of a “Health and Well-Being Review” prepared by Mr Grant Brecht in February 2006 (the Brecht Report) and a complaint that the PA “had not acted on a recommendation in the Brecht Report regarding allegations of bullying on the part of the [PA] Secretary, Senior Sergeant Mullett”. As noted above, the documents constituting the complaint were listed as document number 54 in the Investigation File: see [11(3)] above. Cornelius concluded that the material was provided to him as a protected disclosure under the WP Act;

3.    on 10 March 2006, Cornelius met with one of the “confidential complainants”. At that meeting, the “complainant confirmed that they intended the complaint to be treated as an allegation of serious misconduct under the PR Act, that the complaint be treated as a protected disclosure under the [WP] Act and be investigated under the PR Act”. In that discussion, “[it] became pretty clear to [Cornelius] … that at least some of the conduct alleged might have amounted to “serious misconduct” if proven after a thorough investigation”;

4.    on 18 May 2006, Cornelius attended a meeting with, amongst others, the Director of the Office of Police Integrity (the OPI), who was also the Ombudsman in Victoria. At that meeting, the Director of the OPI “agreed that the complaint was not a “public interest disclosure” under the [WP] Act” (emphasis added);

5.    later on 18 May 2006, the complainants were notified by letter of the Chief Commissioner’s decision that their complaint was not a public interest disclosure;

6.    on 19 May 2006, the complainants confirmed in writing that they did not wish the Ombudsman to review the Chief Commissioner’s determination that their complaint was not a “public interest disclosure” under the WP Act;

7.    an investigation of the Complaint began on or about 24 May 2006;

8.    in a report of the Ombudsman of April 2007, the Ombudsman stated that:

I also consider that it is unsatisfactory that the allegations have not been put to the Secretary of The Police Association [Mr Mullett]. The whistleblowers and other witnesses have indicated to my office that they are willing to cooperate with an investigation, including disclosing their identity, if necessary.

9.    on 3 May 2007, Cornelius wrote to the complainants and other witnesses. Some of them agreed to have their statements provided to Worksafe. Cornelius did not identify those that agreed.

17    Immediately before the hearing of the appeals, the Court was told that Mr Mullett is no longer a serving member of Victoria Police, no longer the Secretary of one Union and no longer the Chief Executive Officer of the other Union, that the investigation into the Complaint was concluded in early 2010 and that Victoria Police does not intend to take any further action in relation to the investigation into, or the substance of, the Complaint. As a result, the Unions advised the Court that they no longer sought much of the relief in the Application and, in particular, no longer sought any relief against the State of Victoria. After the hearing of the Appeals, the State of Victoria submitted that should the extant orders against the State of Victoria for the production of documents be quashed, it sought to be removed as a party to the proceeding. As these reasons for decision will demonstrate, the extant orders for production of the documents by the State of Victoria should be quashed. Whether the State of Victoria should be removed as a respondent to the substantive proceeding will be an issue for the new primary judge.

APPEAL GROUNDS

18    The appeal grounds may be divided into four subject matters – the construction of the WP Act and its interaction with the PR Act, public interest immunity, the adequacy of the June 2011 Orders and Reasons and Item 10 of the Categories. Each will be dealt with in turn.

(1)    Construction of the WP Act

19    The issue raised by these grounds of appeal is whether the documents listed in the Investigation File, in whole or in part, were precluded from production by s 22 of the WP Act. It must be recalled that production of the Investigation File was dealt with in two parts by the primary judge. In the April 2010 Orders and Reasons (see [11] above), his Honour refused to permit the Unions to inspect the Complaint and the Witness Statements on the basis that “evidenced simply by their description, s 22 of the WP Act precluded their production”: at [13] of the April 2010 Orders and Reasons. The balance of the Investigation File was the subject of the June 2011 Reasons and Orders. The primary judge made an Order requiring the production for inspection by the Unions of some of the documents in the Investigation File.

20    The Unions submitted that none of the documents in the Investigation File were precluded from production by s 22 of the WP Act. The Unions’ argument had three distinct strands:

1.    the Complaint was not a complaint about “serious misconduct” under the PR Act and not otherwise protected by the WP Act;

2.    if, contrary to 1, the Complaint was a complaint about “serious misconduct” under the PR Act, the Complaint ceased to be protected under the WP Act once the Ombudsman determined that the disclosure was not a “disclosed matter” under Pt 3 of the WP Act;

3.    if the Unions failed in respect of 1 and 2, then all that was protected under the WP Act was the Complaint and not the balance of the Investigation File.

21    The Respondents submitted that the Complaint was a complaint about serious misconduct under the PR Act, the Complaint was protected from disclosure under s 22 of the WP Act and remained protected even after the Ombudsman determined that the disclosure was not a “disclosed matter” under Pt 3 of the WP Act. In relation to the balance of the Investigation File, the Respondents submitted that in the absence of adequate reasons for decision (a matter we consider below), the proceeding should be remitted to enable a single judge of the Court to inspect the Investigation File to determine whether disclosure of any of the documents on that file (in whole or in part) would disclose the identity of the complainant or complainants who made the Complaint.

22    The primary judge outlined the events giving rise to these appeals as follows:

[9]    The initial information, furnished by way of complaint was, according to Assistant Commissioner Cornelius in his affidavit sworn 30 January 2008, related to “serious misconduct”, which is defined in s 86A of the P R Act in these terms:

serious misconduct, in relation to a member of the force, means –

(a)    conduct which constitutes an offence punishable by imprisonment; or

(b)    conduct which is likely to bring the force into disrepute or diminish public confidence in it; or

(c)    disgraceful or improper conduct (whether in the member’s official capacity or otherwise).

On the view taken by Commissioner Cornelius, the initial complaint was thus of a type contemplated by s 86L(2A) of the P R Act, which provides:

(2A)    A member of the force must make a complaint to a member of the force of a more senior rank to that member, or to the Director, about the conduct of another member of the force if he or she has reason to believe that the other member is guilty of serious misconduct.

[10]    It follows that the disclosure made in the course of making the subject complaint was a “protected disclosure” for the purposes of s 22 of the W P Act, and thereby attracted the application of that section, including its provisions going to penalty.

[11]    The affidavit of Assistant Commissioner Cornelius also reveals that information related to the complaint has been received by himself and Superintendents Tony Biggin and Tim Cartwright, the officers assigned to investigate the matter, and by the first respondent, in her then capacity as Chief Commissioner. By operation of the mechanism for delegation contemplated by ss 5–6A of the P R Act, Assistant Commissioner Cornelius received the information on behalf of Chief Commissioner Nixon. It is not disputed, as I understand it, that, pursuant to the same mechanism, the Superintendents just mentioned also received the disclosed information as if it had been received by the Chief Commissioner.

The WP Act

23    The WP Act encourages and facilitates disclosures of improper conduct by public officers and bodies, provides protection to those who make disclosures or who may suffer reprisals in relation to those disclosures, and provides for the matters disclosed to be properly investigated and dealt with: s 1 of the WP Act. Persons making disclosures are colloquially referred to as “whistleblowers”. As the title to the WP Act suggests, the Act is aimed at protecting whistleblowers.

24    The way in which whistleblowers are protected is specifically addressed in Pt 3 of the WP Act: ss 11 and 12 of the WP Act. That Part applies to a disclosure which is a “protected disclosure” under the WP Act. The protections are broad and include, by way of example, immunity from civil or criminal liability and liability for defamation for making a “protected disclosure”: see ss 14 and 16 of the WP Act.

25    The phrase “protected disclosure” is defined to mean a disclosure made in accordance with Pt 2 of the WP Act: ss 3 and 12 of the WP Act. Part 2 of the WP Act provides for making disclosures about “improper conduct” (as defined in s 3 of the WP Act), which disclosures must be made to one of the persons identified in s 6 of the WP Act.

26    In particular, s 5 in Pt 2 of the WP Act provides who may make a disclosure about improper conduct as follows:

A natural person who believes on reasonable grounds that a public officer or public body –

(a)    has engaged, is engaged or proposes to engage in improper conduct in their capacity as a public officer or public body; or

…

may disclose that improper conduct … in accordance with this Part.

(Emphasis added.)

A “public officer” is defined to include a member of the police force: see s 3(g) of the WP Act.

27    The phrase “improper conduct” is defined in s 3 of the WP Act to mean:

(a)    corrupt conduct; or

(b)    a substantial mismanagement of public resources; or

(c)    conduct involving substantial risk to public health or safety; or

(d)    conduct involving substantial risk to the environment –

that would, if proved, constitute –

(e)    a criminal offence; or

(f)    reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public officer who was, or is, engaged in that conduct;

(Emphasis added.)

28    The phrase “corrupt conduct” is defined in s 3 of the WP Act to mean:

(a)    conduct of a person (whether or not a public officer) that adversely affects, or could adversely affect, either directly or indirectly, the honest performance of a public officer’s or public body’s functions; or

(b)    conduct of a public officer that amounts to the performance of any of his or her functions as a public officer dishonestly or with inappropriate partiality; or

(c)    conduct of a public officer, a former public officer or a public body that amounts to a breach of public trust; or

(d)    conduct of a public officer, a former public officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their functions as such (whether for the benefit of that person or body or otherwise); or

(e)    a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (d);

29    Section 6 of the WP Act identifies to whom a disclosure can be made. Relevantly, s 6(5) provides that a disclosure that relates to a member of the police force (other than the Chief Commissioner of Police) may be made to the Ombudsman, the Director (of Police Integrity: see s 3 of the WP Act) or the Chief Commissioner of Police.

30    Section 22 of the WP Act (in Pt 3 of the WP Act) entitled “Offence to reveal confidential information” provides further protection for whistleblowers by imposing restrictions on the person who obtains or receives the disclosed information. It relevantly provides:

(1)    A person who obtains or receives information in the course of or as a result of a protected disclosure or the investigation of a disclosed matter under this Act must not disclose that information except for the purposes of:–

(a)    the exercise of the functions under this Act of the President of the Legislative Council, the Speaker of the Legislative Assembly, the Ombudsman, the Director, the Chief Commissioner of Police or a public body; or

(b)    any report or recommendation to be made under this Act; or

(c)    any report referred to in Part 9; or

(d)    any proceedings in relation to an offence against section 60 or section 106 or this section or section 19 of the Evidence (Miscellaneous Provisions) Act 1958; or

(e)    any criminal or disciplinary proceedings taken against a member of the police force as a result of an investigation of a disclosed matter by the Chief Commissioner of Police under Part 7.

Penalty: 60 penalty units or 6 months imprisonment or both.

(2)    The Ombudsman or a public body must not in a report or recommendation under this Act or a report referred to in Part 9 disclose particulars likely to lead to the identification of a person who made a protected disclosure.

…

(Emphasis added.)

31    The phrase “protected disclosure” we have addressed earlier: see [25] above. Reference should also be made to the phrase “the investigation of a disclosed matter under” the WP Act in s 22(1): see [30] above. “Disclosed matter” is defined in s 3 of WP Act to mean “a matter disclosed in a disclosure determined by the Ombudsman under Part 4 or Part 8 to be a public interest disclosure”.

32    The WP Act contains provisions which prescribe the process by which a disclosure is determined to be a “disclosed matter”. Section 24, in Pt 4 of the WP Act, provides:

(1)    If a person makes a disclosure to the Ombudsman in accordance with Part 2, the Ombudsman must, within a reasonable time after receiving the disclosure, determine whether the disclosure is a public interest disclosure.

(2)    In making a determination under subsection (1), the Ombudsman must be satisfied that the disclosure shows or tends to show that a public officer or public body –

(a)    has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or

(b)    has taken, is taking or proposes to take detrimental action in contravention of section 18.

(Emphasis added.)

33    For disclosures in relation to members of the police force, the process is as follows:

1.    in the case of a disclosure relating to a member of the police force made to the Chief Commissioner (including a disclosure deemed to have been made to the Chief Commissioner by s 86LA of the PR Act) within 45 days of receiving the disclosure, the Chief Commissioner must consider and reach a conclusion as to whether the disclosure is a public interest disclosure: s 33 of the WP Act;

2.    if the Chief Commissioner concludes that a disclosure is a public interest disclosure, then he or she must within 14 days refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure: s 34 of the WP Act;

3.    if the Chief Commissioner concludes that a disclosure is not a public interest disclosure, then the person who made the disclosure is to be given the option of requesting the disclosure be referred to the Ombudsman for a determination as to whether it is a public interest disclosure: ss 35 and 36 of the WP Act;

4.    the Ombudsman must make a determination within a reasonable time of receiving, or being referred, a disclosure: ss 24 and 37 of the WP Act.

34    Two other provisions in Pt 3 of the WP Act should be noted. First, s 13(1) provides that:

Subject to section 23, if a person who makes a disclosure in accordance with Part 2 provides further information relating to that disclosure to a person or body listed in subsection (2), that further information is to be treated as if it were a protected disclosure for the purposes of this Part.

Sub-section 13(2) of the WP Act includes the Ombudsman and the Director.

35    Then, s 23 relevantly provides:

(1)    If the Ombudsman makes a determination under Part 4 that a disclosure is not a public interest disclosure, this Part does not apply to -

(a)    any further disclosure to the Ombudsman or the public body of the subject-matter of that disclosure; or

(b)    the provision to the Ombudsman or the public body of any further information in relation to the subject-matter of the disclosure.

(2)    If –

(a)    the Director, the Chief Commissioner of Police or a public body concludes under Part 4 that a disclosure is not a public interest disclosure; and

(b)    the person who made the disclosure does not, within 28 days of being notified of the conclusion, request the Director, the Chief Commissioner of Police or a public body (as the case requires) to refer the disclosure to the Ombudsman for determination -

then, from the end of that period, this Part does not apply to any further disclosure to the Ombudsman, the Director, the Chief Commissioner of Police or a public body of the subject-matter of that disclosure or the provision to the Ombudsman, the Director, the Chief Commissioner of Police or a public body of any further information in relation to the subject-matter of the disclosure.

…

The PR Act

36    Part IVA of the PR Act broadens the operation of the WP Act so that it is taken to apply in cases where police officers are under a legislative obligation to make complaints about their colleagues.

37    Section 86L of the PR Act, entitled “Making of complaints”, applies to a member of the force who makes a complaint and provides:

(1)        A complaint about the conduct of a member of the force may be made -

(a)    to another member of the force; or

(b)    to the Director.

…

(2A)    A member of the force must make a complaint to a member of the force of a more senior rank to that member, or to the Director, about the conduct of another member of the force if he or she has reason to believe that the other member is guilty of serious misconduct.

(Emphasis added.)

38    Section 86LA of the PR Act entitled “Whistleblowers Protection Act 2001 applies to certain complaints” provides:

(1)    If a member of the force makes a complaint in accordance with section 86L(2A) to a member of the force of a more senior rank about a member other than the Chief Commissioner, the member receiving the complaint must refer the complaint to the Chief Commissioner.

(2)    The Whistleblowers Protection Act 2001 applies to a complaint referred to in sub-section (1) as if the complaint were a disclosure made to the Chief Commissioner in accordance with Part 2 of that Act.

39    Section 86A contains the definitions of “conduct” and “serious misconduct”:

“conduct”, in relation to a member of the force, means -

(a)    an act or decision or the failure or refusal by the member to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the member has as or, by virtue of being, a member of the force; or

(b)    conduct which constitutes an offence punishable by imprisonment; or

(c)    conduct which is likely to bring the force into disrepute or diminish public confidence in it; or

(d)    disgraceful or improper conduct (whether in the member’s official capacity or otherwise);

…

“serious misconduct”, in relation to a member of the force, means -

(a)    conduct which constitutes an offence punishable by imprisonment; or

(b)    conduct which is likely to bring the force into disrepute or diminish public confidence in it; or

(c)    disgraceful or improper conduct (whether in the member’s official capacity or otherwise).

(a)    Complaint about “serious misconduct”?

40    The Unions submitted that the primary judge should not have been satisfied on the affidavit material that the information disclosed in the Complaint was a complaint about “serious misconduct” under the PR Act. The Unions submitted that the conduct complained of in the Complaint “was the failure of [the PA] to secure a safe workplace and the failure of [the PA] to act on recommendations in the Brecht Report” and, thus, it was not a complaint about serious misconduct. Further, in support of that submission, the Unions submitted that the perpetrator of the conduct complained of was the PA, not a member of the force.

41    On the hearing of the appeal, the Respondents objected to the Unions raising this submission on the ground that the Unions did not raise this argument before the primary judge and therefore should not be permitted to raise it for the first time on appeal. It is unnecessary to consider the applicable principles about what a Court should do when a party seeks to raise a point not argued the primary judge, most recently summarised in Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at [4]-[6] because, contrary to the Respondents’ contention, the Unions had raised before the primary judge the issue of the adequacy of the affidavit material disclosing the nature of the substance of the Complaint. That issue was expressly referred to in the written submissions the Unions filed with the primary judge.

42    In any event, the Unions’ substantive submission that the primary judge should not have been satisfied on the affidavit material that the information disclosed in the Complaint was a complaint about “serious misconduct” under the PR Act cannot succeed for a number of reasons.

43    Contrary to the Unions’ submission, the evidence before the primary judge, on its face, disclosed that the Complaint was a complaint about “serious misconduct” within the meaning of that phrase in the PR Act. The Unions’ description of the conduct (see [40] above) may be accurate but it is not the only available characterisation of the conduct the subject of the Complaint. The Brecht Report recorded the substance of the Complaint as follows:

On 2 November 2006 I received a complaint from two persons wishing to make a disclosure under the provisions of the [WP Act]. The whistleblowers alleged that WorkSafe … had failed to adequately investigate their complaint about bullying at [the PA] and that … then President of [the PA], and a serving police officer, had suffered a serious workplace injury due to bullying and harassment.

44    That conduct was capable of constituting “serious misconduct” under s 86A of the PR Act. If proved, it was serious misconduct by a serving police officer (Mr Mullett) against another serving officer which was capable of satisfying at least subparas (b) and / or (c) of the definition of “serious misconduct” in s 86A of the PR Act: see [39] above.

45    The Unions submitted that the Court was not permitted to have regard to the Brecht Report because it post-dated the determination by Cornelius that the Complaint was not a protected disclosure under the WP Act. We reject that submission. The extracted passage from the Brecht Report reveals the nature of the conduct the subject of the Complaint – conduct which, as described, was sufficient to satisfy the definition of “serious misconduct” under s 86A of the PR Act. There was no reason for the primary judge, or this appeal Court, to doubt the accuracy of the description of the Complaint and, of course, no question arises in these proceedings about whether the complaint was well-founded. Secondly, and no less importantly, it must be recalled that “serious misconduct” need not be proved under s 86L of the PR Act before the relevant provisions of that Act and the WP Act are engaged. Section 86L imposes a statutory obligation on a member of the force to make a complaint to a member of the force of a more senior rank to that member, or to the Director, about the conduct of another member of the force if he or she has reason to believe that the other member is guilty of serious misconduct: see [37] above. In the present case, the evidence disclosed that that was the view of at least one of the complainants: see [16(3)] above.

46    For those reasons, we reject the first strand of the Unions’ submissions that the primary judge should not have been satisfied on the affidavit material that the information disclosed in the Complaint was a complaint about “serious misconduct” under the PR Act.

(b)    Protection under the WP Act

47    Before turning to the remaining strands of the Unions’ argument, it is necessary to say something about the interaction between a complaint under the PR Act and the WP Act. Part IVA of the PR Act broadens the operation of the WP Act so that it is taken to apply in cases where police officers are under a legislative obligation to make complaints about their more senior colleagues: see [36] above. Section 86LA of the PR Act provides that the WP Act applies to such a complaint as if the complaint were a disclosure made to the Chief Commissioner in accordance with Pt 2 of WP Act. What then are the protections afforded to a person who makes such a complaint / disclosure?

48    The essential concept under the WP Act is a “protected disclosure”. A disclosure is a protected disclosure if it is a disclosure made in accordance with Pt 2 of the WP Act: see [25] above. A complaint under s 86L of the PR Act is deemed to be such a disclosure under the WP Act: see s 86LA at [38] above.

49    As a “protected disclosure” under the WP Act, several consequences follow. They include:

1.    the complainant has immunity from civil or criminal liability (s 14) and liability for defamation (s 16) for making the “protected disclosure”: see [24] above;

2.    it is an offence for the person who received the complaint to disclose the information except in limited and specified circumstances: see s 22 of the WP Act at [30] above;

3.    subject to s 23 of the WP Act, if a person who makes a protected disclosure provides further information relating to that disclosure to a specified and limited group of persons or bodies, that further information is to be treated as if it were a protected disclosure: see [35] above.

50    The qualification in s 23 of the WP Act arises in the following manner: in addition to a complaint being deemed a “protected disclosure”, the WP Act also contains provisions which prescribe the process by which such a protected disclosure can be determined to be a “disclosed matter”. The process is that described at [32]-[33] above.

51    Section 23 relevantly provides (see [35] above) that if the Ombudsman makes a determination that a protected disclosure is not a public interest disclosure, then the protections provided by Pt 3 of the WP Act to the whistleblower do not apply in three important respects. First, Pt 3 of the WP Act does not apply to any further disclosure to the Ombudsman or the public body of the subject-matter of that disclosure and, secondly, Pt 3 of the WP Act does not apply to the provision to the Ombudsman or the public body of any further information in relation to the subject-matter of the disclosure: s 23(1) of the WP Act.

52    Section 23(2) of the WP Act is important: see [35] above. It provides that if, inter alia, the Chief Commissioner of Police concludes that a protected disclosure is not a public interest disclosure (and therefore not a “disclosed matter”), certain consequences flow. First, the person who made the disclosure is notified of the conclusion reached by, in this case, the Chief Commissioner of Police. Secondly, within 28 days of receiving that notification the whistleblower is entitled to request the Chief Commissioner of Police to refer the disclosure to the Ombudsman for determination. In this case, the Chief Commissioner of Police made such a determination, informed the complainants of her decision that their complaint was not a public interest disclosure and then the complainants notified the Chief Commissioner that they did not wish the Ombudsman to review that decision: see [16] above.

53    Section 23 then provides that if no review by the Ombudsman is sought, then from the end of that period (namely 28 days after the complainant receives notification of the Chief Commissioner’s determination), Pt 3 of the WP Act “does not apply to any further disclosure to the Ombudsman, the Director, the Chief Commissioner of Police or a public body of the subject-matter of that disclosure or the provision to the Ombudsman, the Director, the Chief Commissioner of Police or a public body of any further information in relation to the subject-matter of the disclosure” (emphasis added): see [35] above.

(c)    Complaint loses WP Act protection once a determination is made that it is not a “disclosed matter”?

54    The second strand of the Unions’ argument was that if the Complaint was a complaint about “serious misconduct”, or at the very least, a complaint by a member of the force against another member of the force that he or she had reason to believe was guilty of serious misconduct, the limitations on disclosure contained in s 22(1) of the WP Act (see [30] above) ceased once there was a determination by the Chief Commissioner that a disclosure was not a “public interest disclosure” pursuant to s 24 of the WP Act: see [32] above. That submission is rejected. It is contrary to the express words and purpose of the WP Act. It is a submission which gives no work to the repeated uses of the word “further” in the collocations “further disclosure” and “further information”. If adopted, the construction urged by the Unions would lead to absurd and harsh results inconsistent with Parliament’s express intention of providing protection to whistleblowers.

55    Section s 22(1) of the WP Act expressly distinguishes between “protected disclosures” and “disclosed matters”: see [25] and [30]-[31] above. The question whether a disclosure is a “public interest disclosure” is relevant to whether it is a “disclosed matter” under s 22(1) of the WPA. It is not relevant to whether a disclosure is a “protected disclosure” under s 22(1) of the WPA.

56    A disclosure can be a “public interest disclosure” only if the disclosure shows or tends to show “improper conduct”: see [32] above. The legislative focus on “improper conduct” in the WP Act demonstrates that the provisions concerning “public interest disclosure” do not limit the protection available to persons who make complaints of “serious misconduct” under the PR Act. Thus, even if a matter is not a “public interest disclosure”, it does not follow that a complaint under the PR Act it is not a “protected disclosure” for the purposes of s 22(1) of the WP Act. Indeed, that is precisely the deemed nature of the complaint under s 86L of the PR Act: see s 86LA at [38] above.

57    That construction of the WP Act is further supported by s 23 of the WP Act which provides that if the Ombudsman determines that a protected disclosure is not a public interest disclosure, then the WP Act does not apply to any further disclosure or information regarding the subject matter of the disclosure: see also the Second Reading Speech to the Whistleblowers Protection Bill (Vic) (1 May 2001) p 448. The fact that the WP Act does not protect further disclosures once a determination by the Ombudsman that a protected disclosure is not a public interest disclosure does not mean, as the Unions contended, that the initial complaint loses the statutory protections provided by the WP Act to the “protected disclosure”.

58    If the Unions’ construction was correct (and it is not), once a determination was made that a disclosure (a complaint) was not a “public interest disclosure”, both the whistleblower’s identity and the subject matter of the disclosure would lose any protection under the WP Act. Such a construction is contrary to the express words of the WP Act and the express purpose of the WP Act to protect whistleblowers. It would be contrary to the fundamental principle on which the WP Act is based – to encourage and facilitate disclosures of improper conduct by public officers and bodies and to provide protection to those who make disclosures or who may suffer reprisals in relation to those disclosures: see [23] above. If the Unions’ construction was correct, why would anyone make a complaint? The absurdity of the Unions’ argument is demonstrated by the fact that, under s 86L of the PR Act, a member of the force must make a complaint: see [37] above. A safeguard for those making such a complaint was built into the PR Act, namely to deem the complaint to be a protected disclosure under the WP Act. On the Unions’ construction, if the complaint was not a “public interest disclosure”, the whistleblower would lose any and all protection. Such an absurd result should be rejected.

59    Indeed, as was put to Senior Counsel for the Unions during the course of argument, the construction contended for by the Unions seems to be contrary to the interests of their members as a whole and advanced without regard for those interests. For example, if the Unions were correct in their construction, a young police cadet that had a complaint about the conduct of another member of the force who he or she had reason to believe was guilty of serious misconduct (such as a sexual assault against him or her) and who would be obliged to make the complaint under the PR Act would not obtain protection under the WP Act unless the complaint was a “public interest disclosure”. Such a construction would discourage, not encourage, whistleblowers and is rejected.

60    For those reasons, we reject the second strand of the Unions’ submissions.

(d)    What then is protected under s 22(1) of the WP Act?

61    The third strand of the Unions’ argument was that if contrary to their submissions, protection under the WP Act was not lost if the matter was not a “protected disclosure”, then the only document protected was the Complaint and not the balance of the Investigation File. We also reject that submission.

62    Section 22(1) of the WP Act applies to any information obtained or received in the course of or as a result of a protected disclosure: see [30] above. The protection provided under the WP Act is for “information”. That information includes information obtained or received in the course of or as a result of a protected disclosure. That is not surprising. If only the Complaint was protected, then information obtained after the time of the Complaint but before a determination that the disclosure was not a “disclosed matter” and which disclosed the identity of the whistleblower would be produced. Such a result would again be contrary to the express words of the WP Act, the fundamental principle on which the WP Act is based (that is, the protection of whistleblowers) and the manner in which the parliamentary drafters intended the PR Act would interact with the WP Act.

63    In the April 2010 Orders and Reasons, the primary judge observed that, with the exception of documents 54 and 73 in the Investigation File, the documents did not necessarily appear from their description to be confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the WP Act: at [13] of the April 2010 Orders and Reasons. The primary judge inspected the rest of the documents in the Investigation File in part to see whether they were so confined.

64    In relation to the Complaint and the Witness Statements, we agree with the primary judge that they should not be produced on the basis that evidenced simply by their description, s 22 of the WP Act preclused their production: see [19] above.

65    In relation to the balance of the Investigation File and the documents listed in the SRL, the Respondents submitted, and we accept, that there was no error in the primary judge inspecting the documents to see whether the documents were confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the WP Act.

INADEQUACY OF REASONS

66    The parties both submitted, however, that this Court should find that by the June 2011 Orders and Reasons, the primary judge erred in failing to provide adequate reasons and that, in the exercise of the Court’s appellate powers, the matter should be remitted to a new primary judge to review the documents in private and make orders, with reasons, in conformity with the reasons of this Court. We agree.

67    A judge is obliged “to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision”: Carlson v King (1947) 64 WN (NSW) 65 at 66; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257; Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [129]. To fail to do so may invoke principles of procedural fairness and is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 (Asprey JA), 384 (Manning JA) and 388 (Moffitt JA); Palmer v Clarke (1989) 19 NSWLR I58 at 163-164 and 174; Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 [40]-[41] and [46]; Waterways Authority at [129]. A judge’s reasons will be inadequate if the “reasoning process is not revealed to [the appeal court] to enable a judgment to be made as to whether [the trial judge] fell into error”: Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18. As Nettle JA stated in Hunter v Transport Accident Commission (2005) 43 MVR 130 at [21] and adopted by this Court in Carlisle Homes at [45]:

[W]hile the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding [sic] are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected ... Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

(Emphasis added and footnotes omitted.)

68    The June 2011 Reasons do not disclose any reasons to explain the June 2011 Order. After citing paragraphs of the April 2010 Reasons, the only other paragraph in the June 2011 Reasons stated at [3]:

I have now examined copies of each of the documents enumerated in Appendix A to the earlier reasons (other than those numbered 54 and 73). I have indicated in Schedules A and B to these reasons which of those documents should be produced for inspection on behalf of the applicants, which should be produced subject to being edited or redacted in the way indicated on the copy supplied to me and which need not be produced.

The schedules then listed the documents in numerical order. Against each document was recorded the conclusion reached by the primary judge. The conclusions included statements that “Should be produced”, “Should be produced, subject to redaction”, “Should not be produced”, “Should be produced, subject to redaction. The attachment should not be produced”. There were other statements of a similar generality.

69    The June 2011 Reasons are inadequate. They do not explain the basis on which the primary judge concluded that:

1.    s 22 of the WP Act did not prevent disclosure of the documents in the Investigation File and the SRL;

2.    public interest immunity did not prevent the disclosure of the information in the Investigation File and Sch 1 Pt 2 of the SRL in so far as that information may enable the identification of informers, including:

2.1    whether the primary judge concluded that the information would not tend to identify an informer; or

2.2    whether the primary judge accepted that the information would have that effect, but that the damages that this would cause to the public interest was outweighed by some countervailing public interest and if so, the nature of that public interest..

70    As the Full Court said in Carlisle Homes at [46]:

The consequences of a court or judge failing to provide adequate reasons have been discussed in a number of cases. In Pettit v Dunkley, Asprey JA and Moffitt JA each referred (at 382 and 388 respectively) to a failure to give reasons as an error of law, and Moffitt JA said that such an error could vitiate the judgment even in cases where it did not appear whether or not the omission would have affected the result (see also Soulemezis v Dudley (Holdings) Pty Ltd at 281 per McHugh JA). In Palmer v Clarke (1989) 19 NSWLR 158, the New South Wales Court of Appeal set aside a trial judge’s orders because his reasons were inadequate. The Court did so even though the outcome of the case itself was not necessarily incorrect (at 163 per Kirby P (with whom Samuels JA agreed)); at 174 per Priestley JA). In Mifsud v Campbell, Samuels JA (at 728) and Hope A-JA (at 729) each reserved for further consideration the question whether a failure to give adequate reasons was an error of law or some other type of error. In Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264, the Full Court of this Court, although it found a failure on the part of a trial judge to give adequate reasons, did not make an order for a new trial. The Court in that case was able to see for itself, quite clearly, that the same result would necessarily be reached and that there would be no point in a new trial. … In Hunter v Transport Accident Commission, the Court concluded that the trial judge had not provided adequate reasons. However, the Court did not remit the matter for rehearing, but, rather, decided the matter for itself. The Court said (at 143 [37]) that, there being no credit issue, the appeal Court was in as good a position to decide the matter as the trial judge.

71    In the present appeal, this Court is unable to decide these matters for itself. It does not have access to the documents reviewed by the primary judge and in issue before it. Unfortunately, there is no choice but to remit the matter to a new primary judge to review the documents in private and make orders, with reasons.

72    The question which arises is what orders should be made?

73    On the hearing of the appeal, it was common ground that in the absence of adequate reasons for decision by the primary judge, the orders for production should be quashed and the matter should be remitted to the new primary judge to review each document in the Investigation File to determine if it was confined to information obtained or received in the course of, or as a result of, a protected disclosure or the investigation of a disclosed matter within the meaning of s 22(1) of the WP Act and to provide reasons for that decision. However, having quashed the orders for production and given that no relief is now sought by the Unions against the State of Victoria (see [17] above), we consider that it is unnecessary and inappropriate to remit the documents listed in the SRL to the new primary judge for review.

PUBLIC INTEREST IMMUNITY

74    As noted earlier, the further ground relied upon by the Respondents for objecting to production of some of the documents in the Investigation File and in the SRL was public interest immunity. Only Ms Nixon’s alternative claim of public interest immunity in relation to some of the documents in the Investigation File remains a live issue.

75    In the April 2010 Reasons, the primary judge identified the principles relating to public interest immunity and then called for production of the relevant documents to decide what, if any, production would be ordered. The June 2011 Reasons record his Honour’s inspection of the documents and his decision as to which documents, or parts of documents, should be produced for inspection. His Honour ordered production of some documents. The Unions do not complain about this aspect. The Respondents, however, contend that his Honour erred and claim public interest immunity over some documents in the Investigation File.

76    As explained above, given the lack of reasons (see [66]-[73] above), it is not possible to ascertain the basis or bases on which his Honour applied the principles of public interest immunity. The Unions do not dispute the Respondent’s submissions as to the applicable principles for public interest immunity or the basis on which an appeal is to be determined. However, the Unions dispute the Respondent’s application of those principles.

77    The dispute is best understood by considering the Unions’ contention that no public interest immunity can apply in circumstances where:

1.    the case concerns the management culture of a particular organisation external to the police force – it is not immediately apparent what the public interest is in protecting the disclosure of information;

2.    procedures under the PR Act will eventually lead to those accused of misconduct having the allegations put before them;

3.    the evidence shows that the complainant and at least some of the witnesses have said they were willing to disclose their identity and evidence there is no basis for a claim of public interest immunity in such circumstances: Heydon JD, Cross on Evidence (8th ed, LexisNexis Butterworths, 2010) at [27 105]; and

4.    there has been considerable passage of time since the complaints have been made – there is a new government and there are new office holders and the documents and information have ceased to have political or public significance.

78    The Unions submit that in those circumstances the public interest in the production of documents outweighs any public interest in their non-disclosure and that to the extent that any public interest immunity has been applied in relation to documents refused or redacted in Schedule A of the Second Judgment, the primary judge has erred. The Unions submit that the primary judge should have found that none of those documents were protected by public interest immunity.

79    In the absence of analysing the documents (a task for the new primary judge) and further or alternatively, adequate reasons for decision, it is neither appropriate nor possible for this Court to determine whether any of the documents were protected by public interest immunity. It is, however, appropriate that we say something about the applicable legal principles.

80    The motions for inspection that were determined by the primary judge arose at a stage before the adducing of evidence and thus, the provisions of the Evidence Act 1995 (Cth) were inapplicable: Mann v Carnell (1999) 201 CLR 1 and Queanbeyan City Council v ACTEW Corporation Ltd (2008) 253 ALR 121 at [7]. As a result, the applicable principles in this appeal are those concerning common law public interest immunity.

81    The general rule is that a court will not order the production of a document, although it is relevant and admissible, if to do so would be injurious to the public interest: Sankey v Whitlam (1978) 142 CLR 1 at 38. When a claim of public interest immunity is made, the Court must embark upon a three stage process. It must:

1.    determine whether there is a public interest in the disclosure of the information in question;

2.    determine whether there is a public interest in the non-disclosure of the information in question; and

3.    if there are public interests both for and against disclosure, balance the public interest in disclosure against the public interest in non-disclosure, in order to decide whether or not the information should be disclosed,

See Sankey v Whitlam at 38-39; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616-617; Alister v R (1983) 154 CLR 404 at 412; Cadbury Schweppes Pty Ltd v Amcor Ltd (2008) 246 ALR 137 at [25]-[26]; Betfair Pty Ltd v Racing New South Wales (No 7) (2009) 181 FCR 66 at [25].

82    It is the third step which was the subject of considerable debate on the hearing of this appeal. The Respondents submitted that the fact that the third step in the process involves a balancing exercise does not mean that the scales begin evenly balanced. On the contrary, the Respondents submitted that in respect of many kinds of documents the scales begin heavily tilted in favour of non-disclosure. By way of example, the Respondents referred the Court to the analysis by the High Court in Commonwealth v Northern Land Council where six members of the High Court said at 618 that:

… where it is established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure. Whether the circumstances of a particular case will be sufficient to displace the considerations which favour immunity depends to a large extent upon the nature of the class.

(Emphasis added.)

That passage is important. It is important because although the resolution of a public interest immunity claim involves a balancing exercise, an appeal against the determination of such a claim is not an appeal against a discretionary decision. Instead, on appeal the question for the Full Court is whether the balance was struck correctly: see Australian Securities and Investments Commission v P Dawson Nominees (2008) 169 FCR 227 at [16]-[17] where a Full Court of this Court applied the decision of the Victorian Court of Appeal in State of Victoria v Brazel (2008) 19 VR 553.

83    In the present case, we cannot assess whether the balance was struck correctly. There are at least three reasons why that is so. First, the documents are not before us. Secondly, the primary judge did not provide adequate reasons and, thirdly, a substantial period of time has elapsed since the events recorded in the documents. These proceedings were filed in July 2008. The events giving rise to the substantive issues started in 2006. The issues on appeal were the subject of argument in September 2009. Since then, Victoria has had two more Premiers and two more Commissioners of Police. It is by no means clear that the methods of enquiry or policy remain the same. It will be necessary for the new primary judge to ascertain which considerations are relevant in striking the correct balance and, thus, whether one or more of the facts and matters relied upon by the parties in 2009 / 2010 are still relevant. Of course, given the passage of time, there may be other considerations relevant to the balancing exercise. Finally, there is the additional circumstance that the disclosure in February 2006 stated by the complainant to be a protected disclosure under the WP Act indeed was a protected disclosure (see [25] above) and was therefore subject to the protections provided by that Act. Whether the complainant wishes for the Complaint to be removed from the protection of the WP Act is unclear. Absent the last consideration (which may or may not be correct), the common law doctrine of public interest immunity must be applied consistently with the legislative policy manifest in the WP Act: see Dawson Nominees at [38].

84    Accordingly, in relation to the Ms Nixon’s alternative argument, the matter should be remitted to the new primary judge to review the documents in the Investigation File to determine whether any of the documents are subject to a maintainable claim of public interest immunity.

ITEM 10 of THE CATEGORIES

85    That brings us to the last issue raised on the hearing of these appeals.

86    Item 10 of the Categories sought by the Unions is set out at [8] above. The primary judge excused the Respondents from producing this category of documents on the basis that discovery of those documents was not necessary. The primary judge concluded at [37] of the April 2010 Orders and Reasons that:

I do not regard the authorities invoked by Counsel for the respondents as establishing that, in exercising its discretion to order discovery or production of documents, a court is entitled to have regard to matters going beyond the proof or disproof of some issue which the pleadings reveal as remaining in dispute between the parties.

87    The Unions submitted that the primary judge’s conclusion at [37] was impermissibly narrow and that the correct approach was that set out by French J in University of Western Australia v Gray (No 8) [2007] FCA 89 at [18] that discovery is “necessary” when it is in the interests of a fair trial and the fair disposition of the case. For the following reasons, we reject the Unions’ contentions.

88    The primary judge stated at [38]:

In the present case, I cannot discern from paragraphs 74 to 76 of the Second Further Amended Statement of Claim how knowledge by Ms Nixon of any documents brought into existence by the persons identified as concerned in the negotiation of the 2006 Agreement could assist in proving the allegations there pleaded and particularised, or avail the applicants’ case more generally. I therefore accede to the respondents’ motion that item 10 of the applicants’ list of categories of documents be amended to read “The final signed version of the 2006 Agreement referred to in paragraph 76 of the Second Further Amended Statement of Claim”.

89    As is apparent, the primary judge refused to make an order for production of Item 10 of the Categories on two grounds. First, that the category of documents sought was not relevant to an issue in dispute and secondly that its production would not “avail [the Unions’] case more generally”. We agree with the primary judge. The Unions failed to demonstrate how documents recording meetings between Mr Mullett and third persons (not in their capacity as a member of an elected government but in their capacity as a member of the Labour Party), being meetings not attended by Ms Nixon or any officer of the State of Victoria, could be relevant to the issues pleaded in the SFASOC.

90    Indeed, the Unions’ written submissions made such a conclusion inevitable when they stated that production of the documents was necessary “because they potentially shed light on the relationships between the relevant protagonists and so provide critical context relevant to establishing the prohibited reasons for the adverse action taken against Mr Mullett or the improper reasons for that action” (emphasis added). The admission that the category of documents rises no higher than “context” is itself a sufficient reason to reject the Unions’ contentions.

91    There is, however, one further reason why we would reject the Unions’ appeal on this question. Mr Mullett attended the meetings. The other attendees were members of a political party who attended the meeting representing that political party, not the State of Victoria. Given the capacity in which the attendees (other than Mr Mullett) named in Item 10 attended the meetings (as a member of the Labor Party), none of the documents sought by Item 10 are likely to be in possession, custody or control of either of the Respondents. A political party acting as a political party is not the State of Victoria and is certainly not Ms Nixon.

92    One other matter should be noted. The Unions referred to the decision of Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 on the issue of “real reason” for the conduct under the WR Act. Special leave to appeal to the High Court was granted on 2 September 2011.

93    We reject the Unions’ submissions that the primary judge misdirected himself as to the correct test to be applied and that he erred in failing to find that the Item 10 documents were not relevant. We would also refuse the application for discovery on the grounds that the documents are not in the possession, custody or power of either of the Respondents.

ORDERS

94    For those reasons, we propose to make the following Orders:

1.    In VID 252 of 2010, that:

1.1    The Appellants have leave to appeal;

1.2    Order 2 made on 1 April 2010 in VID 1213 of 2007 be set aside;

1.3    The Appeal be otherwise dismissed;

1.4    The Appellants pay the Respondents’ costs of the appeal, such costs to be taxed in default of agreement..

2.    In VID 583 of 2011, that:

2.1    The Appellants have leave to appeal;

2.2    The Appeal be allowed;

2.3    The Order made on 2 June 2011 in VID 1213 of 2007 be set aside;

2.4    Paragraph 1 of the notice of motion dated 30 July 2009 and filed in VID 1213 of 2007 by the Police Federation of Australia and The Police Association (except for documents numbered 54 and 73 in Pt 2 of Sch 1 of the Respondent’s list of documents dated 27 July 2009) be remitted to the new primary judge; and

2.5    The Appellants pay the Respondents’ costs of the appeal, such costs to be taxed in default of agreement.

3.    In VID 584 of 2011, that:

3.1    The Appellants have leave to appeal;

3.2    The appeal be allowed;

3.3    The Order made on 2 June 2011 in VID 1213 of 2007 be set aside;

3.4    Paragraph 1 of the notice of motion dated 30 July 2009 and filed in VID 1213 of 2007 by the Police Federation of Australia and The Police Association (except for documents numbered 54 and 73 in Pt 2 of Sch 1 of the Respondent’s list of documents dated 27 July 2009) be remitted to the new primary judge; and

3.5    The Respondents pay the Appellants’ costs of the appeal, such costs to be taxed in default of agreement.

Unless by 12 noon on 19 December 2011, one or more of the parties files written submissions objecting to the proposed orders and outlining the ground or grounds of that objection, the proposed orders will be entered at 4:00pm on 19 December 2011.

Associate:

Dated:    12 December 2011