FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Construction, Forestry, Mining & Energy Union [2000] FCA 453

EVIDENCE – public interest immunity – letter from Minister to Prime Minister seeking to raise a matter in Cabinet – whether letter reveals the deliberations of Cabinet – whether letter a Cabinet submission – whether letter a Cabinet document

APPEAL – standing to appeal from an interlocutory order requiring production of a document in respect of which public interest immunity privilege is claimed by a non-party to the substantive proceeding – Federal Court Act s 24

Federal Court Act 1977 (Cth) s 24(1)

Workplace Relations Act 1996 (Cth) s 170NC

Brouwer v Titan Corporation Ltd (1997) 73 FCR considered

Re Markham; Markham v Markham (1880) 16 Ch D 1 applied

Re Securities Insurance Co [1894] 2 Ch 410 applied

Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23 applied

Witness v Marsden [2000] NSWCA 52 distinguished

Sen v The Queen (1991) 30 FCR 173 distinguished

Shields v Official Receiver in Bankruptcy (1996) 66 FCR 171 distinguished

Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 applied

Sankey v Whitlam (1978) 142 CLR 1 applied

Alister v The Queen (1984) 154 CLR 404 applied

New South Wales v Ryan (1998) 101 LGERA 246 applied

Attorney-General v Hamilton [1993] 2 IR 250 applied

Egan v Chadwick (1999) 46 NSWLR 563 applied

New South Wales v Ryan (1998) 101 LGERA 246 applied

Commonwealth v Northern Land Council (1993) 176 CLR 604 applied

Hooker Corporation Ltd v Darling Harbour Authority (New South Wales Supreme Court, 7 May 1997, unreported) referred to

Hearne The Government of England 2^nd ed. 1986 at p.218

Cabinet Handbook 4^th ed. 1994

THE COMMONWEALTH OF AUSTRALIA v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND JONATHAN HAMBERGER (IN HIS CAPACITY AS THE EMPLOYMENT ADVOCATE)

V 605 of 1999

BLACK CJ, TAMBERLIN & SUNDBERG JJ

MELBOURNE

12 APRIL 2000

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

THE COURT:

1.         Orders that leave be granted to the Commonwealth of Australia to appeal from the judgment of Marshall J delivered on 8 October 1999.

2.         Orders that the appeal be allowed.

3.         Orders that the orders made by Marshall J on 8 October 1999 be set aside.

4.         Declares that the document listed in part 2 of schedule 1 of the second respondent’s list of discoverable documents dated 23 July 1999 is privileged on the basis of public interest immunity privilege and is not required to be produced.

5.         Orders that the first respondent pay the costs of the appellant’s application before Marshall J and of this appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an application for leave to appeal and, if leave is granted, an appeal from an order of a Judge of the Court (“the Judge”) made on 8 October 1999, which permitted the applicant (“the Union”) to inspect a copy letter from a Federal Minister to the Prime Minister.  The letter was discovered by Mr Hamberger in his capacity as the Employment Advocate (“the Advocate”).  Public interest immunity privilege has been claimed by the Commonwealth in respect of the letter.  The letter is described in the Advocate’s discovery as being a:

“Copy of Letter from the Minister for Employment, Workplace Relations and Small Business to the Prime Minister (undated)”.

2                     The list of documents states that the Advocate had the copy letter in his possession and claims privilege on the ground of public interest immunity.

The substantive proceedings

3                     The Application in the substantive matter was filed on 29 May 1999.  In that proceeding the Union seeks the imposition of a penalty on the Advocate pursuant to the Workplace Relations Act 1996 (Cth) (“the Act”).  The Union claims the Advocate contravened s 170NC of the Act by allegedly threatening to take action within intent to coerce Multiplex Constructions Pty Ltd (“Multiplex”), the Union and two other Unions to vary an agreement known as the “Federation Square Productivity Agreement” (“the Agreement”).  The Union also sought an injunction under s 170 NG of the Act restraining the Advocate and other incidental orders together with interlocutory relief.

4                     On 21 May 1999 the Judge granted interlocutory injunctive relief.  On 28 May an undertaking in lieu was substituted in the same terms as the injunctive relief granted by the Judge on 21 May.  On 2 June 1999 the Court ordered that the Advocate be released from his undertaking and that a verified list of documents comprising correspondence between the Advocate or his staff and the Ministry of Workplace Relations, concerning the Federation Square Project (“the Project”), be filed on or before 23 July.  The Project is a large construction project in Flinders Street, Melbourne.  The matter was then adjourned to 26 July.  On that day the list of documents was filed in which the privilege was claimed.

5                     On 20 August 1999 the Commonwealth filed and served an affidavit by Mr Alan Henderson in support of a claim by the Commonwealth for public interest immunity regarding the copy letter.  There was no cross-examination of Mr Henderson on the contents of his affidavit.

Affidavit of Mr Henderson

6                     Mr Henderson details his experience since 1967 which includes a number of senior positions in Government.  His present position, in which he has acted since February 1998, is that of Executive Co-ordinator in the Department of the Prime Minister and Cabinet responsible for the custody of Cabinet records.  He refers to the convention of confidentiality in respect of the deliberation of Ministers in Cabinet.  He also says that he has read the letter and has formed the opinion that its disclosure would reveal the deliberations of Cabinet, thereby breaching the convention of Cabinet confidentiality which would undermine the working of the Cabinet system of Government.  His description of the letter is of importance and reads:

“8.       The document is an unsigned version of a letter from the Minister for Employment, Workplace Relations and Small Business (“the Minister”) to the Prime Minister (“the letter”) which I am informed by … [an officer of the Minister’s Department] …was sent by her to Jonathan Hamberger [the Advocate].  The letter was signed by the Minister on 13 May 1999 and was forwarded to the Prime Minister.  I have compared the letter with the signed version received by the Prime Minister and have confirmed that the texts of the two are identical.

9.         The letter seeks the Prime Minister’s agreement to raise certain matters, including of high level government policy in relation to workplace relations issues, discussed in some detail in the letter, in Cabinet at its next meeting.  I am advised by … [the] Assistant Secretary, Cabinet Secretariat, and believe, that the letter was circulated amongst Ministers in the Cabinet room at that meeting.  The letter reveals issues that the Minister sought to have considered by Cabinet and the Minister’s proposed course of action in relation to those issues, as well as giving an indication of the arguments to be put by the Minister.  In the circumstances, the letter is in the same position as a Cabinet submission and the matters it contains were the subject of Cabinet deliberation.  Given the content of the letter and the fact that it was circulated in Cabinet as sought by the Minister, disclosure of the letter would breach the convention of Cabinet confidentiality.”

7                     On 6 September 1999, after hearing argument from counsel for the Commonwealth and for the Union, the Judge ordered that the Advocate produce the copy letter to the Court.  This was duly produced for inspection by his Honour and, on 8 October 1999, his Honour ordered that the Advocate permit the Union to inspect the copy letter.  He also ordered that the filing of any application or leave to appeal from his order should operate as a stay until further order.  On 27 October 1999 a Notice of Appeal was filed by the Commonwealth.

Statement of Claim

8                     The substance of the Union’s claim as set out in the pleadings is that the Agreement, which concerned the Project, was entered into on 5 May.  The Project was administered by the Office of Major Projects (“the OMP”), a Division of the Department of Infrastructure of the State of Victoria.  The builder engaged by OMP was Multiplex.  It is alleged by the Union that the Agreement was negotiated with the involvement of the OMP and was entered into by the parties with the approval of the OMP.  It is said that at some time prior to 5 May, the Commonwealth of Australia committed itself to provide funds of $50 million to the State of Victoria (“the Commonwealth funds”).  At the time the Agreement was entered into all of the parties to it proposed to apply to the Australian Industrial Relations Commission for certification of the Agreement under Division 4 of Part VIB of the Act.  It is alleged that on 11 May 1999 the Advocate told representatives of the OMP that he required a number of variations to be made to the Agreement as a condition of the Commonwealth providing the Commonwealth funds.  It is said that on 17 May 1999 the Advocate confirmed to representatives of the OMP that the variations required were a condition.  The variations are then particularised. 

9                     It is further alleged that during May the Advocate told representatives of the OMP that they should prevent certification of the Agreement and should procure variations of the Agreement or else the funds would be withdrawn.  This conclusion was said to be an inference from the changes in approach taken by the OMP to the Agreement.  A further allegation is made that during May the OMP instructed Multiplex not to apply to the Australian Industrial Relations Commission for Certification of the Agreement and the facts relied on are there set out.  The allegation is that by engaging in this conduct the Advocate took or threatened to take action with intent to coerce the parties to the agreement not to seek to certify or to vary an Agreement and that this is in contravention of s 170NC of the Act. 

10                  That section provides:

“Division 9 – Prohibition of coercion in relation to agreements

170NC            Coercion of persons to make, vary or terminate certified agreements etc.

            (1)        A person must not:

            (a)        take or threaten to take any industrial action or other action;

                        or

            (b)        refrain or threaten to refrain from taking any action;

                        with intent to coerce another person to agree, or not to agree, to:

            (c)        making, varying or terminating, or extending the nominal

                        expiry date of, an agreement under Division 2 or 3; or

            (d)        approving any of the things mentioned in paragraph (c).

…

Division 10 - Enforcement and remedies

170ND            Penalty provisions

For the purposes of this Division, each of the following is a penalty provision:

(a)       section 170MDA;

(b)       section 170MN;

(c)        section 170MU;

(d)       section 170NB;

(e)        section 170NC.

…

170NF                        Penalties for contravening penalty provisions

(1)       A contravention of a penalty provision is not an offence.  However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision. (Emphasis added)

(2)       The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

            …

170NG            Injunctions

An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.”

11                  At the outset of the appeal hearing two preliminary matters were raised.  These concern the locus standi of the Commonwealth to appeal and whether leave to appeal should be granted.

Locus standi

12                  The Union submits that the Commonwealth was not a party to the substantive proceeding.  Its position is said to be that of a stranger intervening in proceedings between the parties to the proceeding who are the Union and the Advocate.  It is contended that while it may be appropriate for the Court at first instance to hear the Commonwealth in respect of its claim for public interest immunity, the Commonwealth has no standing to set aside the discovery or object to inspection, and is therefore not a proper appellant in the present proceedings.  Therefore, according to the Union, the present appeal is incompetent. 

13                  In support of this contention reference was made to the decision of the Federal Court in Brouwer v Titan Corporation Ltd (1997) 73 FCR 241.  In that case the Full Court considered whether a judgment appealed from was final or interlocutory.  The Court, in a joint judgment, referred to R v Gray; Ex parte Marsh (1981) 157 CLR 351, which involved an application by a stranger to set aside subpoenas issued at the request of a party to a proceeding in this Court.  The High Court held that the issue of subpoenas to the stranger and the application to set the subpoenas aside were steps in the Federal Court proceedings and rejected an argument that the setting aside of the subpoenas constituted an order made in a separate proceeding commenced by the issue of the subpoenas; see 362 per Gibbs CJ (with whom Mason, Wilson and Deane JJ agreed).  The Full Court in Brouwer pointed out that the decision of the Court in Marsh v Adamson (1985) 9 FCR 408 at 417 was to the same effect. They also reviewed a number of other cases and concluded that the orders of the primary Judge were interlocutory in character. At 244 they said:

“The final orders to be made in proceedings No VG 346 of 1993 will be orders which will finally determine the rights of the parties to those proceedings in relation to the issues presented for decision in them.  In contrast, a decision in relation to a subpoena, the issue of which is a procedural step in the existing proceedings provided for by the rules of court governing them, seems to us to be a paradigm case of an interlocutory judgment.”

14                  The decision proceeded on the basis, which was apparently not argued, that an appeal by leave from an order by a trial judge for the production of documents could be brought by a person not a party to the substantive proceeding.  The Court decided against granting leave and in the course of its consideration it expressed doubt as to whether a non-party to a proceeding in the Court had a right of appeal to the Full Court under s 24(1) of the Federal Court Act 1977 (“the FCA”).

15                  There is long line of cases in which it has been held that a non‑party can appeal by leave.  In Re Markham; Markham v Markham (1880) 16 Ch D 1 a potential beneficiary under a will who was not a party to administration proceedings was granted leave to appeal despite not having been a party to the cause.  The Court of Appeal (Lord Selborne LC and Brett and Cotton LJJ) did not give reasons for their decision, but would appear to have accepted the submission of counsel for the applicant:

“According to the practice before the Judicature Acts a party interested, though not a party to the cause, could obtain leave to appeal.  The Acts and Rules do not contain anything bearing on the point, and it is submitted that the old practice remains: Seton on Decrees [4^th ed. at p 1605].  According to that practice, the application was made by petition or motion ex parte: Parmiter v Parmiter [(1860) 2 DF & J 526].”

Section 19 of the Supreme Court of Judicature Act 1873 conferred on the Court of Appeal “jurisdiction and power to hear and determine Appeals from any judgment or order … of Her Majesty’s High Court of Justice”.

16                  In Re Securities Insurance Co [1894] 2 Ch 410 a judge had approved a scheme of arrangement.  Creditors whose interests were affected by the scheme, but who had not appeared before the judge, purported to appeal against the approval.  The appeal was dismissed as incompetent, no leave to appeal having been obtained.  Lindley LJ said, at 413:

“I understand the practice to be perfectly well settled that a person who is a party can appeal … without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave.  It does not require much to obtain leave.  If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal.”

17                  There are numerous cases in which a witness who is dissatisfied with the outcome of an application in relation to a subpoena has appealed with leave.  Thus in Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23 Lord Denning MR said, at 32‑33:

“If the judge makes an order with which the witness is aggrieved, the witness will have an appeal to this Court.  Although he is not a party to the suit, he is a person who is aggrieved by the order: and he is entitled, by leave, to appeal against it: see In re Markham; Markham v Markham (1880) 16 Ch D 1 and In re Securities Insurance Co [1894] 2 Ch 410.”

A review of the cases was recently undertaken by the Court of Appeal of New South Wales in Witness v Marsden [2000] NSWCA 52.  The Court concluded that an aggrieved witness has standing to seek leave to appeal.  It was not necessary to decide whether the witness could appeal as of right.  The appeal provision in question in that case was s 101(1) of the Supreme Court Act 1970 (NSW) which, so far as material, provided that “an appeal shall lie to the Court of Appeal from any … judgment or order of the Court in a Division”.

18                  Section 24 of the Federal Court Act 1976 confers on the Court “jurisdiction to hear and determine … appeals from judgments of the Court constituted by a single Judge”.  There being a judgment, there can be no doubt that jurisdiction to hear an appeal from it is conferred by s 24.  The point of controversy here arises because an entity other than a party wishes to invoke that jurisdiction.  Having regard to the legislation and the authorities discussed in the preceding paragraphs, we are of the view that s 24 picks up the long established practice that permits non‑parties to appeal by leave.  In the Marsden case at 16‑17 Heydon JA referred to the observations of Knox CJ and Starke J in Cuthbertson v City of Hobart (1921) 30 CLR 16 at 25 that a person not a party to proceedings cannot appeal except by leave, and that leave is given as a rule if the person applying might properly have been a party.  Heydon JA said:

“Their Honours do not appear to have been propounding an exhaustive test for leave to appeal.  The test propounded, in any event, must give way to the structure of legislation and rules within which the Court in question works: rights of appeal depend on statute, not common law.  The Supreme Court of New South Wales is in part controlled by Part 37 rule 8, as expounded by authority since the time of Cuthbertson’s case.  Section 101 of the Supreme Court Act and equivalent provisions in other jurisdictions are construed in the light of more generous standing tests such as whether persons are ‘aggrieved’ or ‘sufficiently interested’.”

19                  Cases such as Sen v The Queen (1991) 30 FCR 173 and Shields v Official Receiver in Bankruptcy (1996) 66 FCR 171, in which it is said that a non‑party cannot appeal under s 24, do not bear upon the present question, which is whether a non‑party can obtain leave to appeal, not whether the non‑party can appeal as of right.

20                  In a case where a non‑party seeks leave to appeal from an interlocutory judgment or order, the matters to be taken into account will include those that are customarily considered on an application for leave by a party.  In the circumstances of this case it is not necessary for the Court to decide whether the Judge’s order is final or interlocutory because it is clear that leave ought to be granted.  We consider that, having regard to the general guidelines referred to in Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 398-399, the present is a case in which the decision of the primary Judge is attended with sufficient doubt to warrant reconsideration by the Full Court and also that substantial injustice would result if leave were refused supposing the decision to be wrong.  These are not rigid rules, but application of them to the circumstances of the present case supports the grant of leave to appeal if it were necessary.  The Commonwealth has a direct and specific interest in obtaining a ruling on the question of public interest immunity privilege concerning Cabinet documents.  As Gibbs J said in Sankey v Whitlam (1978) 142 CLR 1 at 43:

“In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the Government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made.  Moreover no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so … (Emphasis added).”

See also Alister v The Queen (1984) 154 CLR 404 at 415 and New South Wales v Ryan (1998) 101 LGERA 246 at 254.

Judgment appealed from

21                  The Judge accepted that the copy letter was prepared outside Cabinet and therefore a lesser degree of protection against disclosure was afforded to it than would be the case with documents which record actual Cabinet deliberations.  He considered that Mr Henderson’s evidence did not establish as a fact that disclosure would reveal the deliberations of Cabinet but considered that the statement by Mr Henderson was an expression of his opinion on that matter.

22                  His Honour referred to the need to balance the competing public interests and decided to inspect the copy letter.  He accepted that it was probable that the contents of the letter were “involved in” the deliberations of Cabinet.  His Honour also formed the view that the substantive proceeding involved a very serious allegation of what is alleged to be a gross abuse of power by a very senior public official analogous to a corruption claim against a senior police officer.  He also considered that the document may be critical in the proceedings.

23                  Having inspected the document his Honour formed the view that the public interest in the proper administration of justice outweighed the competing interest in non-disclosure of what his Honour characterised as a Cabinet document.  His Honour formed the view that the letter was an important document which the applicant was entitled to have before the Court as part of the evidence to ensure a fair disposition of the proceeding based on all relevant and material evidence. His Honour therefore decided to make the document available for inspection.

Privilege - relevant principles

24                  The nature of Cabinet responsibility and the need for confidentiality are described by Professor Hearne in his work on The Government of England 2^nd ed. 1886 in Chapter VIII, especially at 218, where the author observed:

“… It is a … consequence of [the] corporate character of the cabinet that the responsibility which attaches to the acts of any one member extends to the whole body.  As the individual member by his silence in public ratifies and adopts the measures which although against his wish have been adopted by the whole Cabinet, so the collective Cabinet is responsible for the official acts of its separate members.  Each member is as it were the agent of his partners for the execution of his particular duties.  In the political partnership as well as in the commercial partnership, and in each case on the same principles, the act of the partner binds the firm.”

25                  In the recent decision of the Supreme Court of Ireland: Attorney-General v Hamilton [1993] 2 IR 250 at 266, the Chief Justice referred to the principle of collective responsibility in these terms as :

“… The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by majority.  The obligations to accept collective responsibility for decisions and, presumably, for acts of government as well, involves, as a necessity, the non-disclosure of different or dissenting views held by members of the government prior to the making of decisions.”

26                  These observations were recently cited with approval by the New South Wales Court of Appeal in Egan v Chadwick (1999) 46 NSWLR 563 at 575. In that case the Court of Appeal was concerned with questions as to the power of the Legislative Council to require the production of documents to which legal professional privilege attached and to which public interest immunity extended.  The Court decided that, with the exception of executive documents other than Cabinet documents, the Court could not prohibit the Legislative Council from examining the documents but that there was a complete immunity in respect of the production of Cabinet documents.  There is an extended discussion of public interest immunity by Spigelman CJ at 573-6 and by Priestley JA at 589-92. After considering the history and nature of responsible government and the principle of collective responsibility, Spigelman CJ referred to the evidence of the Director-General of the Cabinet Office and concluded at 576:

“This evidence indicates that the documents which the Legislative Council sought included documents which revealed the internal deliberations of the Cabinet.  In my opinion, the Legislative Council does not have power to require the production of such documents.

In order to avoid inconsistency between the power to call for documents and one of the bases on which it has been determined that the power is reasonably necessary (namely executive accountability derived from responsible government), the power should, at least, be restricted to documents which do not, directly or indirectly, reveal the deliberations of Cabinet.” (Emphasis added)

27                  Similarly on the aspect of “indirect” disclosure of Cabinet deliberations the Full Federal Court in New South Wales v Ryan (1998) 101 LGERA 246, speaking of a report made solely for submission to Cabinet to assist it to consider matters of high public policy and administration concerning oyster industry safeguards, said at 252:

“Furthermore, the authorities also require weight to be given to the government’s claim that disclosure of the documents would be harmful, and it is simply not correct to say that disclosure of the recommendations couched in broad terms or which are implicit rather than express, could not justify this claim.  On the contrary, recommendations of any kind involved in a document submitted to Cabinet are quite likely to have been involved in the deliberations of Cabinet.”

28                  A helpful discussion of public interest immunity is to be found in the Sankey case.  In that case the documents the High Court ordered to be produced were not documents disclosing Cabinet deliberations and indeed were not even Cabinet documents.  The Court held that the documents were not within the privilege. Gibbs ACJ said, at 43:

“… I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever.  The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest.  In a particular case the Court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice.  The Court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of the documents of this class, but it will not treat all such documents as entitled to the same measure of protection – the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned.  If a strong case has been made out for the production of the documents, and the Court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.” (Emphasis added)

29                  These remarks were adopted by Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ in The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617.  In that case the documents in question were note books recording the actual deliberations of Federal Cabinet or committees of Federal Cabinet.  The Court held that the note books were privileged and should not have been ordered to be produced for inspection by the trial Judge.  In their joint judgment their Honours pointed out that the documents actually recorded the deliberations of Cabinet or a committee of Cabinet and that they were not documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet which are sometime loosely referred to as Cabinet documents.

30                  After considering earlier case law their Honours said, in relation to Cabinet confidentiality, at 615-616:

“Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticise and publicise their participation in discussions in the Cabinet room.  It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited.  The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support.”

31                  At 616 their Honours, after referring to the distinction sometimes drawn between “class claims” and “content claims” said:

“It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.  Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents. … [T]he immunity from disclosure of documents falling within such a class is not absolute.  The claim of public interest immunity must nevertheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence.” (Emphasis added)

32                  At 617-618 their Honours said in relation to disclosure of documents which came within the class given the highest degree of privilege:

“Documents recording Cabinet deliberations upon current or controversial matters, such as the records in question in this case, are an example.  Obviously, there are extremely strong considerations of public policy weighing against their production regardless of how significant disclosure of their contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised. …  However … the immunity which membership of the class confers is not absolute and that is so even if, as in the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted. …  In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. …

Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings.” (Emphasis added)

The present case

33                  Counsel for the Union accept that documents that actually record or would reveal Cabinet deliberations are generally immune from disclosure other then in exceptional circumstances.  They also accept that there is a another class of “Cabinet documents”, which include “Cabinet Submissions”, which they say are entitled to a lesser degree of protection.  Within this second class, it is said, greater protection is granted to Cabinet Submissions than ancillary documents.  It is submitted that the copy letter in the present case is at the highest a document ancillary to a Cabinet submission.

34                  The characterisation of the copy letter contended for by the Union is that it is a document prepared outside Cabinet in which the author expresses a desire to raise certain matters in Cabinet.  The Union submits that such a document would not on any view reveal the actual deliberations of Cabinet.

35                  The second submission advanced by the Union is that even if the letter was prepared for use in Cabinet it is afforded less protection than documents which record Cabinet deliberations.  It is pointed out that documents which may fall within a class of “Cabinet documents” do not form a homogenous class to be treated as alike. 

36                  Counsel for the Union submit that Mr Henderson does not attest to any specific harm which would flow from the revelation of the contents of the letter, apart from the claim that disclosure would undermine the principle of collective responsibility and interfere with the working of the Cabinet system of government.  In relation to this assertion Counsel assert that this evidence is too vague and general to be of assistance in determining the question of privilege: cf Mason J in Sankey at 62.   They further submit that the issues to which the letter goes, on the evidence of Mr Henderson, are not matters of profound secrecy in the nature of matters of national security or fiscal policy, the revelation of which might cause serious public concern or harm, but relate only to a particular workplace relations issue. Reference is made to the statement of Rogers J in Hooker Corporation Ltd v Darling Harbour Authority (New South Wales Supreme Court, 7 May 1997, unreported) at p 7:

“Cabinet discussions and decisions can range from the relatively inconsequential determinations of no general importance, to matters of profound secrecy and confidentiality.  It cannot be right that the same importance attach to the preservation of the entire range of Cabinet papers decisions.”

37                  In addition, it was submitted that the copy letter, looked at alone, did not have the character of a Cabinet document but that it was it was properly to be classified as “a document sent to the office of the Advocate” and it was not relevant that the original of the document was distributed among Cabinet members at some stage.

38                  Finally, in relation to the balancing process it is said that the allegations made against the Advocate in the substantive proceedings are akin to criminal allegations of culpable conduct contrary to statute.  Accordingly, although the penalty involved is in the nature of a civil penalty, due regard should be had to the seriousness of the allegation in carrying out the balancing process required by the authorities.

Reasoning

39                  The evidence of Mr Henderson establishes that the copy letter is an unsigned version of an original letter from the Minister to the Prime Minister, signed on 13 May 1999 and sent to the Prime Minister.  The undated copy letter was sent by the Group Manager of the Minister’s Department to the Employment Advocate.  The text of the copy letter and the original circulated in Cabinet are identical, although the documents may not be identical in every respect.

40                  In par 9 of his affidavit Mr Henderson states that the letter seeks the Prime Minister’s agreement to raise certain matters in Cabinet at its following meeting and that it includes high level government policy in relation to workplace relations issues and that these are discussed in some detail in the letter.  The letter was in fact circulated amongst Ministers in the Cabinet room at that meeting and he says that it reveals issues that the Minister sought to have considered by Cabinet.  According to Mr Henderson, it sets out the Minister’s proposed course of action in relation to these workplace relation issues and gives an indication of the arguments to be put by the Minister.  Mr Henderson says that the matters contained in the letter were in fact the subject of Cabinet deliberations. 

41                  The context in which the Minister sent the letter to the Prime Minister appears from chapter 7 of the Cabinet Handbook 4^th ed. (1994).  Ministers may, by writing to the Prime Minister, seek his agreement to raise particular matters in Cabinet without lodging a formal Cabinet Submission.  Matters that can be dealt with “under the line” in this way include urgent policy matters that are sufficiently straightforward not to require a formal Cabinet Submission and which cannot be resolved in another way (for example, by an exchange of correspondence between Ministers).  The Handbook provides (par 7.5) that Ministers’ letters to the Prime Minister asking that a matter be raised “under the line” should include sufficient information on the subject and background to form the basis for Cabinet discussion, and indicate the reasons for urgency.  The letter should specify those colleagues with a portfolio interest in the matter, and each should receive a copy of the letter.  The letter should be stamped “Cabinet‑in‑Confidence”.  Should the Prime Minister agree to the matter being raised, the Cabinet Office will circulate a copy of the Minister’s letter to all Cabinet Ministers’ offices.

42                  It is apparent from Mr Henderson’s evidence that the letter was in the form of a proposal for discussion by Cabinet, and that it discloses the Minister’s proposal, views, and at least some of his arguments.  This evidence as to the content of the letter and the persons by whom and to whom it was addressed make it apparent that the letter is an important Cabinet document.  Although the letter does not in terms record actual deliberations at a Cabinet meeting, it was circulated amongst Ministers in the Cabinet room at the meeting, and the matters in it were discussed and considered by those present.  In that sense it reveals what would in the ordinary course be discussed by Cabinet.  Some possible contingencies might be imagined whereby the letter was not in fact considered at the meeting, such as a last minute withdrawal or an adjournment, but the evidence is that the matters in it were discussed. 

43                  Disclosure of the contents of the letter would, in our view, operate to reveal the nature of the matters considered by Cabinet and at least part of the Cabinet’s deliberation of those matters.  On the evidence it can reasonably be assumed, in the circumstances of this case, that the Minister would have attended the meeting and put before Cabinet the position and arguments as set out in the letter.  Disclosure of the contents of the letter would therefore disclose the position of the Minister, the arguments he wished to advance, and the topic which in all probability was discussed at the meeting.  Otherwise it is not possible to envisage why the letter would have been handed out to the Cabinet members at the Cabinet meeting.  The position taken by the Minister in Cabinet is part of the Cabinet’s deliberations.  Disclosure of the Minister’s position in this context would not only be contrary to the convention of the collective responsibility of Cabinet, because it identifies a particular Minister’s views, but would also be contrary to the objective of ensuring that decision-making and policy development by Cabinet is uninhibited, because members of Cabinet could be hampered in the performance of their functions to candidly and comprehensively consider Cabinet proposals if subjected to publication of the details of discussions within the Cabinet room: see Northern Land Council at 615-616.

44                  When the evidence is balanced, the Union has not established any exceptional circumstances that outweigh those militating against disclosure.  The content of the letter, on the evidence, does not appear to be crucial to the determination of the issue in the substantive proceedings.  The copy letter may be contrasted with a report outside Cabinet to assist it in making a decision.  The letter in the present case reveals the subject matter of the discussions in Cabinet.  Moreover, although serious allegations are made, the letter is not central to the resolution of the substantive dispute. We bear in mind the observations of the High Court in Northern Land Council as to the public interest in avoiding serious damage to the proper working of Government at the highest level.

45                  We do not accept the Union’s submission that it is irrelevant that the original of the letter was placed before Cabinet, and that the copy letter should be considered only as a document in the possession of the Advocate.  The nature and effect of the letter, and its proper characterisation, are to be derived from its contents and the use made of it.  Subject to our comments below in relation to confidentiality, the fact the copy letter was sent to the Advocate does not alter the fact that its contents indirectly reveal the deliberations of Cabinet.

46                  Counsel for the Union has also submitted that the copy letter had lost any confidential character as a consequence of it having been sent to the Advocate.  The fact that a copy of the letter was sent to the Advocate does not amount to a waiver or loss of public interest immunity.  Nor does the sending of the copy letter amount to a disclosure such as would destroy its confidentiality.  There is no material to justify any inference that it was intended to be available to anyone other than the Advocate.  In our view it is to be inferred that the letter was sent and received on the basis that it was to be treated as a confidential communication and there has been no disclosure of such a nature as to affect the public immunity privilege which its character attracts. 

Conclusions

47                  In our view the Judge erred in forming the view that the copy letter did not attract the high degree of protection which attaches to Cabinet documents disclosing Cabinet deliberations or which are likely to reveal such deliberations.  Looked at as a practical matter disclosure of the copy letter would reveal discussions within Cabinet.  In our view his Honour erred in holding otherwise.  The approach adopted by his Honour clearly affected the way in which the balancing process was undertaken by him and his ultimate conclusion that the copy should be made available for inspection.  We also consider his Honour erred in the balancing process by emphasising to an unwarranted extent the need for the copy letter to be produced in the substantive proceedings.

48                  For these reasons we consider that a claim for public immunity privilege has been made out.  There should be a declaration to that effect and that the copy letter is not required to be produced by the respondent in proceeding number V 259 of 1999. The appeal should be allowed.  The orders made by the primary Judge should be set aside and the respondent should pay the costs of the Commonwealth both at first instance and on the appeal.

Associate:                                                                    

Dated:                                      12 April 2000