National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610

FEDERAL COURT OF AUSTRALIA

EVIDENCE – public interest immunity – Cabinet submission prepared by Minister – applicant’s belief that document which came into its possession copied from document discovered as Cabinet submission – respondents’ refusal to confirm or deny that this was so – whether inspection of submission would reveal deliberations of Cabinet – whether submission properly subject to claim of public interest immunity.

Workplace Relations Act 1996 (Cth) s 170NC

Duncan v Cammell, Laird and Co Ltd [1942] AC 624 at 641-642 referred to

Rogers v Home Secretary [1973] AC 388 at 406-407 referred to

Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1111 referred to

Sankey v Whitlam (1978) 142 CLR 1 at 38, 49 applied

Conway v Rimmer [1968] AC 910 at 952 referred to

Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 432 referred to

R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 referred to

Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 referred to

Mann v Carnell (2001) 201 CLR 1 referred to

Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (2001) 201 CLR 49 referred to

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

Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at 43 applied

Attorney-General v Hamilton (1993) 2 IR 250 at 266 referred to

Egan v Chadwick (1999) 46 NSWLR 563 at 573-576 and 589-592 referred to

NATIONAL TERTIARY EDUCATION INDUSTRY UNION v COMMONWEALTH OF AUSTRALIA and DAVID ALISTAIR KEMP

V447 of 2000

WEINBERG J

25 MAY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V447 OF 2000

BETWEEN:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT DAVID ALISTAIR KEMP SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	25 MAY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The claim for public interest immunity in respect of documents 1, 3, 5 to 11, and 13 to 17 of Annexure A to Part 2 of Schedule 1 to the respondents’ list of discovered documents be upheld.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V447 OF 2000

BETWEEN:

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA

FIRST RESPONDENT

DAVID ALISTAIR KEMP

SECOND RESPONDENT

JUDGE:	WEINBERG J
DATE:	25 MAY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 The National Tertiary Education Industry Union (the NTEU) is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (the Act). Its members constitute academic and general staff of thirty-seven separate tertiary institutions throughout Australia. It has brought proceedings against the Commonwealth of Australia and against the Honourable Dr David Kemp MP, the Minister for Education, Training and Youth Affairs. The Department of Education, Training and Youth Affairs is known by the acronym “DETYA”.

2 The NTEU has been involved, since late 1998, in negotiations with a number of tertiary institutions for new certified agreements under the Act. Throughout the period between August 1998 and March 2000 it initiated bargaining periods with each of those tertiary institutions. It managed to reach agreement with eleven of them. Seven of those agreements were certified by the Australian Industrial Relations Commission.

3 The NTEU contends that tertiary institutions receive in excess of 65 per cent of their funding from the Commonwealth, taking into account amounts recoverable by the Commonwealth under the Higher Education Contribution Scheme (HECS). This funding is provided mainly in the form of operating grants under the Higher Education Funding Act 1988 (Cth) (the HEFA). Part 2 of the HEFA sets out the maximum operating grants that can be made under that part (s 17) and the conditions upon which the Minister may grant financial assistance for operating purposes (s 18).

4 In October 1999, s 17 of the HEFA was amended to enable the operating grants which can be made under that Act to be increased by an amount equivalent to a 2 per cent salary increase across the sector. However, no amendment was made to s 18 to enable the conditions under which funding was to be granted to be altered.

5 In late December 1999 a series of documents were published on the DETYA website. These included:

· Guidelines for the Workplace Reform Programme (the Guidelines);

· Explanatory Notes for the Workplace Reform Programme (the Explanatory Notes); and

· A document entitled “Questions and Answers on the Workplace Reform Programme Guidelines” (the Q & A document).

6 The NTEU contends that the Guidelines provide, inter alia, that:

· the Workplace Reform Programme (the Programme) is intended to provide funding for higher education institutions upon the adoption of flexible and more efficient governance and management structures;

· higher education institutions wishing to submit proposals for a grant to be made under the HEFA to assist reform aimed at enhancing efficiency in the higher education sector should have regard to the Guidelines;

· the aims of the Programme are to foster more direct relations between employers and employees, and to improve the efficiency of management and administration processes; and

· institutions will be required to apply for the grants and additional funding will only be provided where they commit to, and implement, significant reform in workplace relations arrangements, management and administration.

7 Funding under the Programme is additional to the operating grant already provided to tertiary institutions under the HEFA. A failure to secure a grant under the Programme will not mean a reduction of the tertiary institutions’ guaranteed operating grant.

8 The Guidelines also provide that:

· grants will be provided in two stages with institutions required to apply separately at each stage;

· the first grant will be given after consideration of a submission addressing a number of the criteria set out in the Guidelines;

· the second grant will be available not less than twelve months after the first grant has been allocated, and subject to an assessment by DETYA (in consultation with the Department of Employment, Workplace Relations and Small Business) of the effectiveness of the reforms undertaken; and

· payments to individual institutions will be two per cent of the national salary component (seventy-five percent) of the operating grant.

9 Dr Kemp is the Minister responsible for determining the outcomes of applications for grants based on the assessments provided by DETYA.

10 Paragraph 5 of the Guidelines sets out the criteria for assessing the applications for funding. The initial grant is said to be tied to:

“(1) Enterprise agreements which include measures which promote institution specific terms and conditions, costs savings and freedom of association.”

11 Agreements are expected to give all employees, collectively and individually, equal opportunity to participate in future bargaining processes, end reliance on sector wide industrial instruments, provide for Australian Workplace Agreements (AWAs) to be made with staff and guarantee freedom of association, refraining from any indication of disposition towards, or against union membership. Agreements are also expected to provide, where payment is made for union fees to be collected through payroll deduction, an opportunity for staff to elect whether or not to continue to make such payments by that means, and to reflect active pursuit of award simplification consistent with the objectives of the Act.

12 The Explanatory Notes provide that tertiary institutions are encouraged to do the following things, inter alia, in order to meet the criteria for grants under the Programme:

· enter into certified agreements under s 170LK rather than under s 170LJ of the Act (ie. non-union rather than union certified agreements);

· ensure that awards or any of their terms are not included in certified agreement unless the tertiary institutions have justified to the Minister and DETYA the incorporation of such awards or any of the their terms and, specifically, to ensure that there is no “large-scale” importation of award terms into the certified agreements;

· insert clauses into certified agreements which expressly permit tertiary institutions to enter into AWAs with all staff;

· ensure that provisions previously contained in the Universities and Post Compulsory Academic Conditions Award 1995 concerning disciplinary action and termination of employment are not included in the certified agreements; and

· ensure that the certified agreements do not contain union facilitation and union encouragement clauses.

The relevant legislative provisions

13 Section 170NC(1) of the Act provides as follows:

“(1) A person must not:

(a) take or threaten 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:

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

14 The Court has certain remedial powers in relation to a contravention of this section. These are contained within Div 10 of the Act which deals with enforcement and remedies. Section 170NF provides for penalties of up to $10,000 for a body corporate, and $2,000 in other cases, for contravening “penalty provisions”. Section 170ND provides that s 170NC is a “penalty provision”. Section 170NG allows this Court to grant injunctive relief requiring a person not to contravene, or to cease contravening, a penalty provision.

The NTEU’s application

15 By an amended application filed on 12 September 2000, the NTEU alleges that by requiring the tertiary institutions to meet the criteria set out in the Guidelines in order to obtain grants under the Programme, the Commonwealth and the Minister have taken action, or threatened action, with an intent to coerce the tertiary institutions, or the NTEU, to agree, or not to agree, to one or other of the making or varying of a certified agreement, in contravention of s 170NC.

16 The underlying basis for that claim is that the success or otherwise of tertiary institutions in obtaining additional funding under the Programme is crucial to their very viability, and that a number of those institutions have no choice, in practical terms, but to comply with the conditions imposed by the Guidelines. The pressure which the respondents have exerted upon both the tertiary institutions and the NTEU is said to amount to “coercion”, and to be proscribed, at least in relation to certified agreements, by s 170NC

The procedural issue

17 On 21 December 2000, orders were made by consent regarding the giving of discovery by each party. It was ordered that the NTEU file and serve its affidavit of documents by 19 January 2001 and that the Commonwealth and the Minister likewise file and serve their affidavit of documents by the same date. It was further ordered that each party allow the other to inspect the discovered documents by 2 February 2001.

18 Regrettably, it soon became apparent that there were a number of issues which could not be resolved by agreement between the parties. On 12 April 2001, the NTEU filed a notice of motion seeking orders requiring the respondents to produce for inspection a number of documents which had been discovered, but which the respondents contended ought not be produced. In resisting production, the respondents claimed legal professional privilege, parliamentary privilege under the Parliamentary Privileges Act 1987 (Cth), and public interest immunity. On 19 April 2001, I gave judgment in relation to the respondents’ claims for legal professional privilege and parliamentary privilege. However, the issue which remained to be determined was whether a number of the documents which the NTEU sought to inspect were by reason of their status as “Cabinet documents”, not to be produced for inspection. That issue proved to be more complex than it originally seemed, and could not be determined on an ex tempore basis.

19 The documents which are the subject of the claim for public interest immunity are all included in Annexure A to Pt 2 of Sch 1 to the respondents’ list of discovered documents. There are a total of twenty-five documents listed in Annexure A, of which eighteen were originally identified as falling within this category. However, the claim for public interest immunity is no longer pressed in relation to documents 2, 4, 12 and 19. Copies of those documents have been provided by the respondents to the NTEU.

20 This leaves a total of fourteen documents (being those marked 1, 3, 5-11 and 13-17) as those for which a claim for public interest immunity continues to be asserted.

21 The documents in question are described by the respondents in their revised version of Annexure A in the following terms:

Disc No	Doc Date	Doc Type	Pgs	Author Organisation	Addressee Organisation
1	15/06/1999	Letter	1	Riggs, L Department of Employment, Workplace Relations and Small Business	Department of Education, Training and Youth Affairs
3	Undated	Guidelines	2
5	Undated	Guidelines	2
6	20/09/1999	E-mail	3	Wildermuth, C Department of Education, Training and Youth Affairs	Gillespie, D Department of Employment, Workplace Relations and Small Business
7	20/09/1999	E-mail	3	Gillespie, D Department of Employment, Workplace Relations and Small Business	Wildermuth, C Department of Education, Training and Youth Affairs
8	20/09/1999	E-mail	3	Wildermuth, C Department of Education, Training and Youth Affairs	Gillespie, D Department of Employment, Workplace Relations and Small Business
9	20/09/1999	E-mail	2	Gillespie, D Department of Employment, Workplace Relations and Small Business	Wildermuth, C Department of Education, Training and Youth Affairs

10	20/09/1999	E-mail	2	Gillespie, D Department of Employment, Workplace Relations and Small Business	Wildermuth, C Department of Education, Training and Youth Affairs
11	20/09/1999	E-mail	2	Wildermuth, C Department of Education, Training and Youth Affairs	Gillespie, D Department of Employment, Workplace Relations and Small Business
13	20/09/1999	E-mail	2	Wildermuth, C Department of Education, Training and Youth Affairs	Gillespie, D Department of Employment, Workplace Relations and Small Business
14	30/09/1999	Submission	1	Kemp, D MP Minister for Education and Youth Affairs
15	01/10/1999	Letter	1	Riggs, L Department of Employment, Workplace Relations and Small Business	Department of Education, Training and Youth Affairs
16	01/10/1999	E-mail	3	Riggs, L Department of Employment, Workplace Relations and Small Business	Dunford, B Department of Education, Training and Youth Affairs
17	05/10/1999	Brief (Ministerial)	1		Kemp, D MP Minister for Education, Training and Youth Affairs

The evidence in support of the claim for public interest immunity

22 The respondents’ claim for public interest immunity is supported by an affidavit sworn on 18 April 2001 by Alan Gilbert Henderson, the Executive Co-ordinator in the Department of the Prime Minister and Cabinet. Mr Henderson has held that position on an acting basis since February 1998 and substantively since November 1998. He has held various positions in the Commonwealth Public Service since 1967 including positions at the First Assistant Secretary and Acting Deputy Secretary level in the Department of the Prime Minister and Cabinet. In his current position, which is at the Deputy Secretary Level, he is responsible for the custody of Cabinet records.

23 Mr Henderson has deposed to various matters which go to the importance of maintaining Cabinet documents and deliberations in confidence. He placed importance on the following matters:

· Although the affairs of government are conducted for the public benefit and the deliberations of the Parliament are conducted in public, convention establishes and Commonwealth legislation acknowledges that confidentiality properly attaches to the deliberations of Ministers in Cabinet and Cabinet documents.

· This convention is said to be followed by all governments in Australia, both State and Federal, and in other nations with a similar system of government.

· The convention recognises that there must be a forum in which full and frank discussion by Ministers can take place, uninhibited by the need to temper debate to meet sectional interests or media pressures, and in which individual opinions may be expressed freely among colleagues without public comment and exposure. Otherwise, the efficiency of the policy making process would be significantly impaired.

· Such confidentiality is necessary for the preservation of the principle of collective responsibility which requires that decisions, once arrived at in Cabinet, be supported by all Ministers whatever their personal views.

· This principle is intended to bring about effective and efficient government by facilitating finality of decision-making and that the government as a whole is properly accountable and responsible to the Parliament, and through it to the people.

· The principles of Cabinet confidentiality and collective responsibility are both of long standing.

24 Exhibited to his affidavit are extracts from the most recent edition of the Cabinet Handbook, where these principles are set out. The extracts deal with the convention of the collective responsibility of Ministers for government decisions, and the importance of Cabinet confidentiality. Also included in these extracts is a section dealing with the definition of Cabinet documents. That definition notably includes Cabinet submissions and memoranda, reports and attachments to submissions and memoranda which have been brought into existence for the purpose of being considered by Cabinet and any papers circulated by Ministers in the Cabinet room relating to matters under discussion by the Cabinet. The definition stipulates that all Cabinet documents are to be marked “Cabinet-in-Confidence”, and are to be given a level of protection at least equivalent to that given to documents bearing the sensitive material classification, “Protected”.

25 Mr Henderson says that he has read and carefully considered each of the fourteen documents for which public interest immunity is claimed by the respondents in this proceeding. He says:

“… Based on that reading and consideration, and on advice I have received about those documents which is outlined below, I have formed the opinion that disclosure of the documents would reveal material submitted to Cabinet, the substance of that material or the deliberations of Cabinet. I have formed the opinion that this disclosure would breach the principle of Cabinet confidentiality and undermine the principle of collective responsibility and, as a result, would be contrary to the public interest. …”

26 Mr Henderson then turns his attention to the documents in question on an individual basis. For reasons which will become apparent, he deals first with document 14. He says:

“8. Document 14 is a submission which the Minister for Education, Training and Youth Affairs submitted to Cabinet for its consideration. I am advised by Mr John Doherty, an Assistant Secretary in the Cabinet Secretariat in my Department, that Cabinet considered Document 14 on 18 October 1999. The content of Document 14 reveals issues considered by Cabinet, the Minister’s position on those issues and suggests the arguments that the Minister could be expected to have advanced during the Cabinet meeting. Based on the content of Document 14 and its consideration by Cabinet, I consider that disclosure of Document 14 would breach the principle of Cabinet confidentiality. To the extent that Document 14 reveals the Minister’s position on issues considered by Cabinet, I also consider that disclosure of Document 14 would undermine the principle of collective responsibility.”

27 In relation to the remaining documents, Mr Henderson had the following to say:

· Documents 6 to 11 and 13 either contain or refer to a particular passage which is contained in the body of the submission at document 14. As a result, he considers that parts of the former set of documents reveal material submitted to Cabinet, or the substance of that material, and ought not to be required to be produced for inspection.

· Documents 3 and 5 are draft versions of a paper produced by the Department of Employment, Workplace Relations and Small Business and DETYA for the purpose of inclusion as an attachment to the Cabinet submission at document 14. As a result, inspection of those documents will reveal material submitted to Cabinet.

· Documents 1 and 15 contain “coordination comments” on a Cabinet submission which was considered by Cabinet on 28 June 1999. He explains that once a Cabinet submission has been approved by a responsible Minister, but before it is considered by Cabinet, the submission is requested to be circulated to relevant departments for formal comment. These comments are known as coordination comments. They express the Department’s views on the submission. He says that coordination comments are lodged with the Department responsible for the submission and are included in the submission as an attachment when it is considered by Cabinet. As a result, he considers that parts of documents 1 and 15 reveal material submitted to Cabinet and that disclosure of those parts of the documents will breach the principles of Cabinet confidentiality. He also says that although Ministers are not bound to support coordination comments during Cabinet discussion, those comments gave some indication of the position likely to be taken by the Minister during Cabinet’s consideration. As a result he considers that disclosure of parts of those documents will undermine the principle of collective responsibility by disclosing the position that the Minister could be expected to have taken during Cabinet’s consideration of those submissions.

· Document 16 contains proposed amendments to draft versions of the coordination comments at document 15 and that its disclosure will reveal the substance of the coordination comment attached to the Cabinet submission. As a result he considers that parts of document 16 will reveal material submitted to Cabinet, or the substance of that material.

· Document 17 is a Cabinet brief prepared by DETYA for the use of the Minister during Cabinet consideration of the submission at document 14. Parts of document 17 paraphrased and discussed the content of document 14. As a result disclosure of that document will reveal the substance of matters considered by the Cabinet and will breach the principle of Cabinet confidentiality and will also undermine the principles of collective responsibility by disclosing the position that the Minister could be expected to have taken during Cabinet’s consideration of that submission.

28 Mr Henderson concludes his affidavit by saying:

“Based on my experience and position, I consider that, by breaching the principles of Cabinet confidentiality and collective responsibility, disclosure of these 14 documents would interfere with the working of the Cabinet system of government and would, for the reasons discussed [above] be contrary to the public interest.”

The significance of the 14 documents sought

29 The NTEU proposes to rely, in support of its claim that the respondents have contravened s 170NC of the Act, upon the evidence of Ms Julie Wells, who is the Policy and Research Coordinator in the National Office of the NTEU. In her affidavit, affirmed 13 March 2001, Ms Wells deposes, inter alia:

“21. On 13 October 1999 I received a facsimile transmission from the Australian Newspaper which I believe is a true copy of a cabinet submission of Dr Kemp titled “Proposals for Reform in Higher Education”. A copy of the document is attached hereto and marked “JW4”.”

30 Exhibit “JW4” to Ms Well’s affidavit is an eleven page document (the Document). It purports to be a “Cabinet-in-Confidence” Cabinet submission headed Proposals for Reform in Higher Education, emanating from the Honourable Dr David Kemp MP, Minister for Education, Training and Youth Affairs. At the foot of each page the following comment appears:

“This document is the property of the Australian Government and is not to be copied or reproduced.”

and:

“This document has been re-typed from the original.”

31 The Executive Summary which appears on page 1 gives the flavour of the Document. It identifies as “KEY ISSUES”:

“Imperatives to reform the higher education system are at paragraphs 1 to 4. Information is provided on cost projections for a demand-driven, more deregulated higher education system (Attachment B), private returns to higher education (Attachment C), options to encourage greater participation from disadvantages groups (Attachment D) and mechanisms for quality assurance (Attachment E). Consistent with imperatives for reform and with this further information, my preferred reform option – a demand driven system characterised by fee and admissions deregulation, improved quality assurance arrangements, a universal public subsidy for undergraduate students in a broad range of accredited institutions, and a loans scheme to finance the costs of tuition – is described at paragraphs 6 to 12. An alternative approach based on funding additional higher education places within a less flexible framework is described at paragraphs 13 to 14. My preference on workplace reform is to pursue reform in the sector vigorously, as described at paragraphs 22 and 23 and at Attachment F. This has immediate financial implications. Initiatives to improve access to higher education for some groups are described in paragraph 25.

I seek Cabinet’s agreement in principle to my preferred higher education reform package, and agreement to consider a detailed package and a policy paper on reform in higher education based on this package before the end of this year.”

32 The Document next contains a series of detailed recommendations including a proposal for deregulation of fees which entails the abolition of HECS and its replacement by loans for full fee paying students. The Document recognises that these recommendations are contentious and that liberalising the capacity of universities to introduce additional fee paying undergraduate places will be opposed in many quarters.

33 The Document then turns to the issue of workplace reform. It suggests in par 21 that higher education institutions’ capacity to respond flexibly and efficiently to emerging student and employer demand is “hamstrung” by continuing workplace rigidities, by the retention of unwieldy government structures and by the persistence of an NTEU-dictated pattern bargaining agenda. It says that in the current round of negotiations, the NTEU is seeking to impose conditions which will worsen the sector’s rigidity. In particular, the NTEU is demanding salary increases of nineteen per cent over three years, the prohibition of AWAs, a reduction in staff workloads and a limit on operating times. The Document proceeds:

“The Commonwealth could allow workplace reform in the sector to proceed in the manner and at the pace which suits individual universities’ management objectives. However, with some exceptions, the reform process is likely to be protracted. There is a real risk that some existing institutions, particularly in the regions, will become financially unviable as unsatisfactory pay and conditions arrangements in the sector become locked in until at least 2002-03. In introducing fee deregulation from 2002 the risk is that institutions will pass on the costs of inefficiencies and unfunded salary increases in higher fees if workplace reform is left until after fees have been deregulated.”

34 The Document then suggests in par 22 that some salary increases for academic staff are warranted and that low rewards in academia are driving quality staff to other fields of employment or overseas universities. It then contains the following observation:

“… Workplace reform could be pursued immediately through an up-front injection of funds contingent on the achievement of specific workplace relations reforms (in particular, the inclusion of satisfactory provisions in Enterprise Bargaining agreements) reflecting government policy objectives (see Attachment F). The Australian Government Solicitor considers it appropriate to act on the basis that the Workplace Relations Act’s prohibition of coercion, in relation to agreement-making, does not apply when a government imposes conditions on a proposed grant of funds. Legal advice is being obtained on minimising the risk of legal challenge. …” (emphasis added)

35 The Document then continues at par 23:

“The timing or the delivery and the quantum of any additional funds is critical. On timing, the availability of additional funds would need to be announced as soon as possible to influence outcomes in the current round of negotiations. On quantum, current indexation arrangements already provide sufficient funds to finance at least a one per cent increase in academic and general staff salaries. I propose an injection of funds from January 2000 sufficient to underwrite a further two per cent salary increase in the sector – enough in my judgment to persuade universities to hold firm during what is likely to be extensive industrial unrest. I prefer delivering additional funds by increasing universities’ operating grant over altering current indexation arrangements, to avoid any flow-on to other Commonwealth own-purpose outlays.” (emphasis added)

36 Finally, the Document concludes in par 27:

“Cabinet’s endorsement of a preferred reform package, and of an approach to workplace reform in the sector, is critical to setting the timetable for reform. The proposal to provide additional Commonwealth funding contingent on workplace reform needs to be announced immediately if it is to influence outcomes from the current round of salary negotiations. …” (emphasis added)

37 Somewhat curiously, the Document is dated “XX October 1999” and purports to have been prepared by “David Kemp”.

38 The NTEU also relies upon an affidavit affirmed by Ms Alanna Duffy on 18 April 2001. Ms Duffy is a National Industrial Officer with the Union. She deposes to the following:

“2. On 13 October the NTEU received a facsimile transmission from the Australian Newspaper which was a copy of a cabinet submission of Dr Kemp titled “Proposals for Reform in Higher Education”. At around the same time we received an electronic copy of the document by email.

3. The electronic version of the document was posted on the NTEU website on 14 October 1999 and has been continuously available on the website since that date. To the best of my knowledge the document was also made available on the websites of the Australian Labor Party and the National Union of Students on or around 14 October 1999 and has been continuously available on the Australian Labor Party website since then.

4. The document is currently available on the NTEU website. Attached hereto and marked with the letters “AD 1” is a copy of the first page of the document accessed via the NTEU website on 18 April 2001.

5. I am also aware that the document can currently be accessed via the websites of the Australian Labor Party and the Wollongong University Postgraduate Association. …”

39 During the course of argument I was informed that when the trial of this matter is ultimately heard, the NTEU will be inviting me to conclude that the Document is in fact a re-typed copy of a Cabinet submission put forward by the Minister which was leaked to The Australian newspaper, and subsequently published on the internet. The NTEU will contend that at least some of the statements contained in the Document provide evidence that the respondents were involved in a contravention of s 170NC of the Act.

40 The NTEU recognises that there may be difficulties in persuading the Court to accept that the Document is what it purports to be. It is clear from the respondents’ affidavit of discovery that document 14 in Annexure A is described as a “submission” which is dated 30 September 1999 and is said to have been prepared by Dr David Kemp. The NTEU suspects that document 14 (for which public interest immunity is claimed) is in fact the source of the Document. It seeks inspection of document 14 in order to confirm its suspicion that this is so, and to enable the contents of the Document to be relied on in support of its case.

41 Par 9 of Mr Henderson’s affidavit is as follows:

“9. The submission at Document 14 was not published by the Commonwealth. It would not be appropriate for the Commonwealth to confirm or deny whether a document disclosed without authority which is alleged to be a Cabinet document is in fact a Cabinet document. To confirm that a document is a Cabinet document in a particular case would breach Cabinet confidentiality and reveal the deliberations of Cabinet. To deny that a document is a Cabinet document in one case would, in the absence of a denial in other cases, tend to confirm that the documents in those other cases are Cabinet documents.”

42 The position taken by the respondents, as is clear from that paragraph, is that they will neither confirm nor deny that the Document is a true copy of document 14. It is understandable that they take this position.

43 There are two other important matters to note at this stage. The description given to document 14 in the final version of the respondents’ affidavit of discovery records that document as being 1 page in length. An earlier version of the respondents’ affidavit was silent as to the number of pages contained in the document. There is plainly a disconformity between the description of document 14 which has now been provided by the respondents, and the contents of the Document which the NTEU suspects is a re-typed copy.

44 Secondly, document 14 is described by the respondents as bearing the date 30 September 1999. As already noted, the NTEU’s Document is dated “XX October 1999”. It is difficult, therefore, to assume that one document is a copy of the other.

45 There is nothing in the evidence which explains the differences between the two documents. I make that observation because I have deliberately refrained from examining document 14 for myself, and note that neither side sought to dissuade me from that course.

46 It follows that it cannot be assumed that the NTEU’s suspicions about document 14 are correct. Such objective indicia as are present suggest that whatever the Document may be, and whether it be genuine or not, it is not a re-typed copy of the document described as document 14 in Annexure A.

The principles governing inspection of Cabinet documents.

47 Much of the law of privilege has developed with the rules for the discovery and inspection of documents, since an objection to produce a document before trial may be taken on this ground. Public interest immunity was formerly known as “Crown privilege”, the latter term being abandoned for reasons described by Viscount Simon in Duncan v Cammell, Laird and Co Ltd [1942] AC 624 (at 641-2):

“The withholding of documents, on the ground that their publication would be contrary to the public interest, is not properly to be regarded as a branch of the law of privilege connected with discovery. “Crown privilege” is for this reason not a happy expression. Privilege, in relation to discovery, is for the protection of the litigant and could be waived by him, but the rule that the interest of the state must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litigation, and, indeed, is a rule on which the judge should, if necessary, insist, even though no objection is taken at all.”

48 Waiver of public interest immunity is not possible: Rogers v Home Secretary [1973] AC 388 at 406-7. Moreover, the rule which permits secondary evidence of a privileged document to be adduced is inapplicable to documents which are the subject of a claim for public interest immunity.

49 A distinction is often drawn between a “class claim” and a “contents claim”. A class claim is a shorthand reference to those claims for immunity which are made in relation to documents which belong to an identifiable class. Typical examples include Cabinet minutes, and diplomatic despatches. It may be that the document in question comprised in the class contains no sensitive material. A contents claim, on the other hand, is made in respect of a particular document on the ground that it contains material the contents of which are so sensitive as to warrant the non-disclosure of the document.

50 In Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1111 Lord Wilberforce commented:

“The claim to “public interest immunity” in respect of these documents is clearly what has come under a rough but accepted categorisation to be known as a “class” claim, not a “contents” claim, the distinction between them being that with a class claim, it is immaterial whether the disclosure of the particular contents of particular documents would be injurious to the public interest – the point being that it is the maintenance of the immunity of the class from disclosure in litigation that is important; whereas in a contents claim the protection is claimed for particular contents in a particular document. A claim remains a class even though something may be known about it contents: it remains a class even if parts of documents are revealed and parts disclosed.”

51 Speaking broadly, the Court will not compel or permit the disclosure of information where to do so would be injurious to the public interest. The public interest must be understood as having two separate components – the public interests whose protection demands non-disclosure and that of the proper administration of justice which calls for disclosure of relevant material: Sankey v Whitlam (1978) 142 CLR 1 at 38 and 49.

52 It has long been recognised that there are classes of such vital interest to the State that documents belonging to them should not be produced for inspection. These include Cabinet minutes, minutes of discussions between heads of government departments and despatches from Ambassadors abroad. In Conway v Rimmer [1968] AC 910 Lord Reid said at 952:

“I do not doubt that there are certain classes of documents which ought not to be revealed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.”

53 In Cross On Evidence 6^th (Australian edition at 769) Cabinet papers are described as “the archetype” of a class for which public interest immunity will normally be granted. However, the courts still regard the matter as one requiring a balance to be struck. They are not prepared to countenance automatic immunity even for Cabinet papers: Air Canada v Secretary of State for Trade (No 2) [1983] 1 AC 394 at 432; Sankey v Whitlam (supra); R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 and Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60.

54 Although the law relating to public interest immunity as a basis for the exclusion of evidence has now been codified for the purpose of proceedings brought in federal courts (see Evidence Act 1995 (Cth) s 130), the provisions of that Act concern the adducing of evidence and do not apply to a request for inspection of documents pre-trial: Mann v Carnell (1999) 201 CLR 1 and Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. It follows that the common law principles which have evolved in relation to public interest immunity are applicable to the determination of the issues at this stage of the present proceeding.

55 In Commonwealth v Northern Land Council (1993) 176 CLR 604 an action had been brought, at first instance, by the Northern Land Council to set aside an agreement between it and the Commonwealth on the ground of alleged unconscionable conduct. The Commonwealth discovered notebooks containing notes made by Cabinet officers of the deliberations of Cabinet and other containing notes made by departmental officers of the deliberations of Cabinet or committees of Cabinet. The Commonwealth resisted inspection of the notebooks on the ground that the disclosure of their contents was against the public interest.

56 The High Court, in a majority judgment, held that the production to the court of documents recording Cabinet deliberations should only be ordered in exceptional circumstances which gave rise to a significant likelihood that the public interest in the proper administration of justice outweighed the very high public interest in the confidentiality of such documents. It was said to be doubtful whether civil proceedings would ever warrant the production of documents recording Cabinet deliberations upon a matter which remained current or controversial.

57 The Court observed that in criminal proceedings exceptional circumstances may exist if withholding the documents would prevent a successful prosecution or impede the conduct of the defence. Where such exceptional circumstances existed, the appropriate course to be followed would ordinarily be for the judge to inspect the documents in order to decide whether the relevance of the material to the proceedings in which disclosure was sought was sufficient, even in those exceptional circumstances, to justify disclosure. Importantly for present purposes the Court commented (at 619):

“Having regard to the strength of the claim for immunity, a judge ought not order the disclosure of the contents of documents [recording Cabinet deliberations] unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings.” (emphasis added)

58 The Court referred to Sankey v Whitlam (supra) where a former Prime Minister and three former Ministers were charged with unlawful conspiracy to borrow a large sum of money. Gibbs ACJ had noted that the matters referred to in the documents, which he categorised as “state papers”, related to a proposal which had never been implemented. Three years had gone by, and there had been a change of government. His Honour expressed the view that if the documents were withheld “the informant will be unable to present to the court his case that the defendants committed criminal offences while carrying out their duties as Ministers”. Stephen J observed that the ordinary reasons supporting a claim for public interest immunity seemed “curiously inappropriate when to uphold the claim is to prevent successful prosecution … because what is charged is itself the grossly improper functioning of [the executive] arm of government and of the public service which assists it”.

59 In Sankey v Whitlam the documents which the Court ordered to be produced were not even Cabinet documents, let alone documents disclosing Cabinet deliberations. This can be contrasted with Commonwealth v Northern Land Council which was, in any event, a civil case albeit one in which it was contended that the Commonwealth had behaved unconscionably, and in breach of its fiduciary duty. In these circumstances the public interest in the immunity from of the deliberations of Cabinet was of the highest order, and the Commonwealth should not have been ordered to produce the documents for inspection.

60 In Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, a Full Court of the Federal Court allowed an appeal from an interlocutory decision of a primary judge whereby his Honour ordered the Commonwealth to discover a letter from a Minister to the Prime Minister, for which letter the Commonwealth had claimed public interest immunity.

61 The respondent Union (the CFMEU) alleged the contravention of s 170NC of the Act by the Employment Advocate who was said to have threatened to take action with intent to coerce Multiplex Constructions Pty Ltd, the CFMEU and two other unions to vary an agreement. The Commonwealth relied upon an affidavit sworn by Mr Alan Henderson in support of its claim for public interest immunity regarding the letter.

62 The Full Court noted that the letter was prepared outside Cabinet and that a lesser degree of protection against disclosure was afforded to it than would be the case with documents which record actual Cabinet deliberations. The primary judge had accepted that it was probable the contents of the letter were “involved in” the deliberations of Cabinet. He also formed the view that the substantive proceeding involved a very serious allegation - a gross abuse of power by a senior public official - and that the letter might be “critical” in the proceedings. Having inspected the letter, the primary judge concluded that it was an important document which the CFMEU was entitled to have before the Court as part of the evidence to ensure a fair disposition of the proceedings.

63 The Full Court analysed the nature of Cabinet responsibility and the need for confidentiality. It cited Attorney-General v Hamilton (1993) 2 IR 250 at 266 where the Chief Justice of the Supreme Court of Ireland 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.”

64 See also Egan v Chadwick (1999) 46 NSWLR 563 at 573-576 per Spigelman CJ and at 589-592 per Priestly JA.

65 Counsel for the CFMEU accepted that documents that actually recorded or would reveal Cabinet deliberations were generally immune from disclosure other than in exceptional circumstances. They also accepted that there was another class of “Cabinet documents” which included “Cabinet submissions” which they submitted were entitled to a lesser degree of protection. They submitted that the allegations made against the Employment Advocate in the substantive proceedings were akin to criminal allegations of culpable conduct contrary to statute. Accordingly, although the penalty involved was in the nature of a civil penalty, due regard should be had to the seriousness of the allegation in carrying out the balancing process which the law required.

66 The Full Court reasoned that the letter was in the form of a proposal for discussion by Cabinet, and that it disclosed the Minister’s proposal, views, and at least some of his arguments. The evidence established that it was an important Cabinet document. Although it did not in terms record actual deliberations of 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 revealed what would in the ordinary course be discussed by Cabinet. It could reasonably be inferred that the Minister would have attended the meeting and put before Cabinet the position and arguments as set out in the letter. The position taken by the Minister in Cabinet was part of the Cabinet’s deliberations. The Full Court said (at 43):

“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.”

67 The Full Court concluded that when the evidence was balanced, the CFMEU had not established any exceptional circumstances that outweighed those militating against disclosure. The content of the letter, on the evidence, did not appear to be “crucial” to the determination of the issues in the substantive proceeding. Moreover, although serious allegations had been made, the letter was not “central to the resolution of the substantive dispute”. Accordingly, the claim for public interest immunity had been made out.

Conclusions

68 Counsel for the NTEU submitted the decisions of the High Court in Commonwealth v Northern Land Council, and of the Full Court in Commonwealth v CFMEU were distinguishable, and that the claim for public interest immunity in the present case should be rejected.

69 It was submitted that Commonwealth v Northern Land Council was a civil case, and could not be equated with an application for a penalty for contravention of s 170NC of the Act. In Commonwealth v CFMEU, the contravention alleged was against the Employment Advocate and not, as in the present case, against the Commonwealth and the Minister. Given that it was the Minister himself who was alleged to have contravened the Act the principles enunciated by the High Court in Sankey v Whitlam were said to be applicable, and to render the present case one in which exceptional circumstances existed. It was submitted that confirmation of the fact that document 14 was the same as the Document was an important part of the NTEU’s claim since it showed what the Minister himself had set out to do when he introduced the reform package, and it enabled the NTEU to prove that he had acted “with intent to coerce” within the meaning of s 170NC.

70 I am unable to accept these submissions. The first point to note is that inspection of document 14 would reveal the deliberations of Cabinet. Moreover, it would do so upon an issue which is current and controversial.

71 In Commonwealth v Northern Land Council, the majority observed, at 614-615, that notwithstanding the distinction between documents which record the actual deliberations of Cabinet and documents prepared outside Cabinet its assistance (Cabinet documents), it had never been doubted that it was in the public interest that deliberations of Cabinet should remain confidential in order that members may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made.

72 I accept that whatever the position may have been in the past, the immunity from disclosure of documents which record Cabinet deliberations or are otherwise Cabinet documents is not absolute. The claim of public interest immunity must be weighed against the competing public interest in the proper administration of justice which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence. What is involved where the documents sought are required to enable a criminal prosecution to proceed, or charges to be defended, is that the documents be of such importance to the case as to lead to the conclusion that the detriment to the public interest involved in disclosure is outweighed by the public interest in the advancement of justice.

73 In the present case the allegations made against the Commonwealth and the Minister are serious. Any finding that a Minister has contravened an Act of Parliament by engaging in conduct which is expressly proscribed must be viewed seriously. If proved, the allegations could lead to the imposition of civil penalties, although the maximum amounts, of $10,000 in the case of a corporation and $2,000 in the case of an individual might be regarded as derisory.

74 I do not underestimate the extent of the harm which might be done to the university sector, and to the public interest as well, if a Minister is permitted, with impunity, to flout the law of the land. At the same time, a contravention of s 170NC cannot really be equated with the commission of serious criminal offences, such as those alleged against the Prime Minister in Sankey v Whitlam. No one who contravenes s 170NC commits a criminal offence. Although there is a strong public interest in ensuring that the section is not contravened, there is also a strong public interest in protecting the confidentiality of Cabinet deliberations.

75 Counsel for the NTEU submitted that the reasoning of the Full Court in Commonwealth v CFMEU was not directly in point in the present case because what was alleged in that case was that the Employment Advocate had contravened the relevant provision, and not the Commonwealth or the Minister. Although it is true that the conduct of the Minister is directly in issue in the present case, and the public interest in exposing alleged wrongdoing may therefore be regarded as somewhat greater than in relation to the Employment Advocate, the balancing process which the Court must undertake is essentially the same. It is important to ascertain whether the Minister has contravened s 170NC of the Act. It is more important, in my view, in the circumstances of this case, to give effect to the public interest in protecting the confidentiality of Cabinet documents.

76 I should add that whether or not the Document is a copy of document 14 does not appear to me to be “crucial” to the NTEU’s case. No doubt the NTEU considers that its case would be assisted if it could demonstrate the authenticity of the Document. However, there is a difference between a document being of assistance to a party’s case, and it being “crucial” to that case. Merely because the NTEU may not be able to rely upon this single piece of evidence does not mean that it is prevented from putting its claim that the Commonwealth and the Minister acted “with intent to coerce”. There are many ways in which such an intent may be demonstrated.

77 Given the manner in which this issue was argued before me, it is unnecessary to deal separately with each of the other documents for which public interest immunity was claimed. It is clear that inspection of those documents would have the same tendency to reveal Cabinet deliberations as would inspection of document 14. None of the other 13 documents is said to be as important to the NTEU’s case as document 14. If the claim for public interest immunity in relation to document 14 succeeds, so too must the claim for public interest immunity for the remaining documents.

78 It follows that the respondents’ claim for public interest immunity in relation to documents 1, 3, 5 to11 and 13 to 17, inclusive, of Annexure A to Part 2 of Schedule 1 to the respondents’ list of discovered documents should be upheld. Accordingly, those documents need not be produced for inspection.

I certify that the preceding eighty-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated: 25 May 2001

Counsel for the Applicant:	Dr K.P. Hanscombe

Solicitor for the Applicant:	Maurice Blackburn Cashman

Counsel for the Respondents:	Mr P.R.D. Gray with Mr D.J. Batt

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	19 and 20 April 2001

Date of Judgment:	25 May 2001

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