FEDERAL COURT OF AUSTRALIA

North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080

PRACTICE AND PROCEDURE – Discovery of documents – Claim of public interest immunity – Northern Territory government documents – Internal memoranda relating to proposed statutory amendments and powers of Administrator, drafts of Cabinet submission, final Cabinet submission and record of formal Cabinet decision – No documents revealing Cabinet deliberations – Claim of public interest immunity disallowed.

Sankey v Whitlam (1978) 142 CLR 1 referred to.

Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 distinguished.

Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 applied.

NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC v HUGH BURTON BRADLEY and NORTHERN TERRITORY OF AUSTRALIA

D 17 of 2001

WILCOX J

MELBOURNE (HEARD IN SYDNEY)

10 AUGUST 2001

THE COURT ORDERS THAT:

1.                  The claim of public interest immunity made by the second respondent in respect of certain documents listed in that respondent’s Supplementary List of Documents be disallowed.

2.                  The second respondent forthwith produce the said documents for inspection by other parties.

3.                  The costs of the application in respect of public interest immunity be the applicant’s costs in the principal proceeding.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     The second respondent, the Northern Territory of Australia, claimed certain documents, listed in that respondent’s Supplementary List of Documents, are subject to public interest immunity.  The applicant, North Australian Aboriginal Legal Aid Service Incorporated, disputed that claim.

The public interest immunity application

2                     In order to resolve that dispute I appointed a hearing in Sydney, with video-links to Melbourne and Darwin, for Friday, 3 August 2001.  At that hearing two affidavits were read.  One affidavit was made by Athol Geoffrey James, solicitor for the applicant.  Mr James had not, of course, seen the relevant documents.  However, he set out what might be called informed speculations about their likely nature and contents and explained how such documents might bear on the issues raised in the principal proceeding.

3                     The other affidavit was made by Paul Charles Wilford Tyrell, Chief Executive Officer of the Northern Territory Department of the Chief Minister and Secretary to Cabinet.  This affidavit described the procedures adopted in the Northern Territory in respect of Cabinet submissions and listed the documents for which there was a claim of public interest immunity.  Mr Tyrell stated the Northern Territory government objected to the production of the listed documents “on the basis that the disclosure would be injurious to the public interest in that it would adversely affect the processes and functioning of Cabinet”.  He explained:

“11.     The convention of collective Cabinet responsibility requires all Cabinet Ministers to support publicly Cabinet Decisions regardless of their own personal views.  The production of documents indicating the views of individual Ministers will tend to undermine that convention.  Each Cabinet Submission that goes to Cabinet is brought or sponsored by an individual Minister, or in rarer cases by two Ministers as co-sponsors.

12.              The proposals and recommendations contained in the Cabinet Submission identify the view of the sponsoring Minister or Ministers as to the position Cabinet should adopt in relation to the issue and the decision that Cabinet should make.  It is a feature of collective governance, however, that the decision made by Cabinet is not always in accordance with the recommendation of the sponsoring Minister or Ministers.  In such an event the relevant Minister is required to surrender his or her personal and Departmental preference to the achievement of the common view and to abide by the common decision.  If draft Cabinet Submissions and Cabinet Submissions, including their attachments, and Cabinet Decisions are disclosed, the convention of collective Cabinet responsibility will be undermined, and the position of the sponsoring Minister will similarly be undermined, as the views of the sponsoring Minister, and Cabinet’s eventual decision, on matters the subject of Cabinet deliberation will become known.

13.              Cabinet Submissions do not constitute a complete record of the matters considered and discussed by Cabinet in the course of its deliberations.  The disclosure of Cabinet Submissions and related documents would give rise to a skewed or misleading view of the matters considered by Cabinet in the course of these deliberations.  During the course of such deliberation many factors not expressly adverted to in the formal Cabinet Submission or comments may be taken into account.

14.              If Cabinet Submissions and related documents were subject to disclosure the ability of the sponsoring Minister to explore alternatives in policy formulation and the decision-making process would be fettered.  The sponsoring Minister or Ministers would not be able to bring Submissions for consideration by Cabinet which contained candid and blunt assessments in circumstances where such assessments ran the risk of disclosure in the course of subsequent litigation.  The same fetter would be imposed on those senior public servants engaged in the preparation of Cabinet Submissions and comments on behalf of and at the direction of their Ministers.  Such a fetter would be at the expense of good government.”

4                     At the time of the hearing, the subject documents were in the course of transmission from Darwin to Sydney.  Consequently, I was not able to inspect them prior to, or during, submissions.  However, counsel for both parties were content to proceed on the basis that I would inspect the documents when they became available and reach a decision based on the application to them of the appropriate legal principles.

5                     The subject documents arrived later on Friday, 3 August.  On that day and subsequently, I read them and considered the appropriate course to be taken, having regard to the principles enunciated in the relevant authorities.  I eventually formed the view that the claim of public interest immunity should be disallowed, that the second respondent should be ordered forthwith to produce the subject documents for inspection by other parties and that the costs of the application in respect of public interest immunity should be the applicant’s costs in the principal proceeding.  On Tuesday, 7 August 2001 I made orders to that effect, and said I would publish my reasons on Friday, 10 August 2001.  What follows are my reasons for making those orders.

Legal principles

6                     The parties agree that the issue of public interest immunity must be determined by reference to common law principles.  That seems to be correct.  Section 130 of the Evidence Act 1995 deals with public interest immunity, but only in the context of adducing evidence in a court.  The section has no relevance to a claim of immunity at an earlier stage of litigation: compare Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; 201 CLR 49.

7                     The leading Australian authorities concerning the relevant common law principles are the decisions of the High Court of Australia in Sankey v Whitlam (1978) 142 CLR 1 and Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604.

8                     Sankey v Whitlam arose out of criminal proceedings against four former Commonwealth Ministers.  The Court rejected a claim of Crown privilege, as public interest immunity was then commonly called, in respect of an explanatory memorandum and Schedule relating to a meeting of the Executive Council, three memoranda from a senior official of one government department to a senior official of another department, a file note recording a meeting with the Prime Minister, a minute paper from a senior official of Treasury to his Minister and part of the minutes of a meeting of the Loan Council.  Although each member of the Court (Gibbs ACJ, Stephen J, Mason J, Jacobs J and Aickin J) wrote a separate judgment, there was substantial common ground between them all.  It was summarised, accurately I believe, in the Commonwealth Law Reports headnote in this way:

“Cabinet documents and papers concerned with policy decisions at a high level are entitled to protection from disclosure irrespective of their contents but, although that protection may be asserted by any party or the court itself, it is not absolute or permanent.  The court must balance the need for secrecy against the need to produce the documents in the interests of justice and production may be withheld only when that is necessary in the public interest.  The court may inspect the documents.  Production will usually be ordered where a document has been published by tabling in Parliament or otherwise or where, by effluxion of time, it ceases to be necessary to preserve the secrecy of its contents.  The usual reasons for according protection to cabinet documents and similar papers have less force when disclosure is essential to a prosecution for misfeasance in public office.

9                     Northern Land Council arose out of an action in this Court in which the Council sought rescission of an agreement it had made with the Commonwealth in respect of uranium mining in the Northern Territory.  The Council claimed the agreement was made under duress and as a consequence of breaches of fiduciary duty by the Commonwealth.  A judge made an order permitting inspection by counsel and solicitors of notebooks recording discussions at Cabinet meetings held during the period of pre-contractual negotiations.  A Full Court of this Court (Black CJ, Gummow and French JJ) dismissed an appeal against that order:  see Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1.  At 38 the Court referred to the “concession of public interest immunity” as “a self-imposed judicial restraint” that requires “a balancing process between the public interest in the administration of justice and the public interest invoked in support of the immunity”.  The Court identified six factors relevant to that process:

“1.       where the contents of the documents are relied upon, the interests affected by their disclosure eg national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information; where the impact of disclosure on the public interest is peculiarly within the knowledge of the Executive, its contentions will be given particular weight;

2.                  where the class of documents is invoked, the public interest which immunity for the class is said to protect eg political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect;

3.                  the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents or the documents themselves came into existence;

4.                  the seriousness of the issues in relation to which production is sought eg innocence of a criminal charge or governmental misconduct bearing upon the case;

5.                  the likelihood that production of the documents will affect the outcome of the case;

6.                  the likelihood of injustice if the documents are not produced.”

10                  The High Court, by majority (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ, Toohey J dissenting), reversed the Full Court decision.  In doing so, the majority emphasised, at 614, that the subject documents were “documents which record the actual deliberations of Cabinet or a committee of Cabinet”.  Their Honours distinguished such documents from “documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet”.  In relation to documents of the latter kind, the majority said (at 614-615):

“Documents of that kind are often referred to as Cabinet documents.  When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest.  The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity.  On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has ‘received an excessive dose of cold water’ [see Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1112]”

11                  The High Court majority accepted (at 616) that, even in the case of documents revealing Cabinet deliberations, immunity from disclosure is not absolute: “[t]he claim of public interest immunity must nonetheless 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”.  However, their Honours expressed doubt (at 618) “whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings”.  The ill-effects of disclosure of Cabinet deliberations were identified by the majority at 615:

“Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential.  Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government.  Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course.  The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny.”  [Citations omitted]

Discussion

12                  None of the documents under consideration in the present case reveals the course of deliberations in the Northern Territory Cabinet.  One document records a decision of the Cabinet, but it does not indicate which Ministers favoured that decision or whether any Ministers took a contrary view.  It gives no information as to whether or not there was a Cabinet debate and, if so, what points were argued or by whom.  It follows that disclosure of that document would have none of the consequences identified by the Northern Land Council majority in the preceding paragraph.

13                  The other subject documents all fall into one of three categories.  First, there are memoranda between officers of the Northern Territory government concerning two subjects: proposed amendments to the Magistrates Act (NT) and the powers of the Administrator in relation to determination of the remuneration of the Chief Magistrate.  The second category comprises various drafts, and the final version, of a Cabinet submission to amend the Magistrates Act in particular respects.  Departmental comments are noted on some drafts. Third, there are memoranda from officers of the Department of Attorney-General to the Attorney-General submitting to him the various drafts, and the final version, of the Cabinet Submission.

14                  It is apparent from Mr Tyrell’s evidence that the Northern Territory government’s claim for immunity is a “class” claim; the claim does not depend upon the particular contents of any document.  That being so, I bear in mind the rationale of such a claim, as stated by the High Court majority, in the passage of their judgment in Northern Land Council which I set out above at para 10 above “disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions”.

15                  As will be apparent from the quoted passage in Northern Land Council, there has been a tendency in recent years to disparage or downplay this line of reasoning.  The High Court majority noted that tendency, but found it unnecessary to make any definitive statement about it.

16                  Despite the recent tendency, I accept there are situations where a belief, or fear, that their words may be revealed to others might discourage public officers from expressing views with candour.  Any such discouragement would be inimical to the public interest.  However, everything must depend upon the nature, and subject matter, of the documents.  It is difficult to believe that a writer of a memorandum concerning proposals to amend a particular statute, or discussing the powers of the Administrator in relation to a particular matter, would feel inhibited by the possibility of his or her views reaching an unintended audience.  Nothing in any of the subject memoranda would embarrass its author, even if the relevant memorandum was published in the media.  The same statement may be made about the memoranda forwarding the various versions of the Cabinet submission to the Attorney-General.

17                  The Cabinet submission shows what was put before Cabinet.  A person who read the drafts of this document, and the departmental comments upon them, might obtain some understanding of the position on particular matters of particular departments.  However, it accords little credit to the integrity of senior departmental officers to think they might be influenced, in the expression of their department’s view about proposed legislation, by the possibility that someone might learn the department held that view.

18                  A person who read the final Cabinet submission, and compared it with the Cabinet decision, would learn whether, and if so to what extent, Cabinet departed from the submission.  However, the person would have no information about the reasons for, or circumstances of, that departure.  The person would not learn whether the departure was controversial or unanimous or at whose instigation it occurred.  Even reading the two documents together, they provide no information about Cabinet’s deliberations.  This point is of crucial importance.  It distinguishes the case, not only from Northern Land Council, but also from other recent cases in which a claim for immunity was upheld on the basis that disclosure of the document would reveal the internal deliberations of a Cabinet: see Egan v Chadwick (1999) 46 NSWLR 563 at 576, Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2000] FCA 453 at paras 42 and 43 and National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610 at paras 70 and 77.  Egan v Chadwick is distinguishable upon the additional ground that it concerned production of documents to a House of Parliament, in relation to which matter different principles apply.

19                  Counsel for the present applicant drew attention to the fact that nothing was said by the High Court, in Northern Land Council, to cast doubt upon the appropriateness of the six factors identified by the Full Court in that case, and listed at para 9 above.  Counsel submitted I should consider each of those factors in carrying out the required balancing exercise.  That submission was not disputed and I accept its correctness.

20                  Factors 1 and 2 may be considered together.  It is not suggested that disclosure of any of the subject documents would affect national security, relationships with foreign governments or unfairly prejudice other parties.  The impact of disclosure is the impact on the Executive claimed by Mr Tyrell; that is, possible inhibition of candour.  I have already dealt with that matter.

21                  Factor 3 requires attention to the extent to which the interests have become attenuated by the passage of time or occurrence of intervening events.  There may have been such an attenuation in relation to the political impact of actions taken by the Northern Territory government in early 1998.  However, to the extent there is substance in a “class” claim based on inhibition of candour, it would seem to make no difference that some time has elapsed and that some changes have occurred in persons holding particular offices.

22                  I turn to the fourth factor.  One of the claims made by the applicant in the principal proceeding is that, in appointing Mr Bradley as Chief Magistrate, the Northern Territory government was actuated by improper purposes.  Although the claim is made in a civil proceeding, this claim raises a matter of serious concern.  It is important that statutory powers be used by their donees for the purposes envisaged by the statute, and no other purposes.

23                  The final two factors may be considered together.  In order to make good a charge of improper purposes, it is obviously necessary for an applicant to provide evidence of the actions, motivation and thinking of the person against whom the charge is brought.  In the case of a body politic, this can only be done by proving the actions, motives and reasons, of those who acted in the matter on behalf of the body politic.  Any exclusion of evidence about the actions of senior government officers, whether Ministers or public servants, is likely to impede proof of those actions, motives and reasons.

24                  I have not reached any conclusion upon the question whether or not production of the subject documents would have a decisive bearing on the applicant’s ability to make out its improper purposes case.  However, it is apparent that exclusion of the documents from production would seriously hamper whatever chance the applicant may have of doing so.

25                  Considering all the above matters, it seemed to me that, in the present case, the public interest required disclosure of the subject documents to the applicant.  It was for that reason that I decided to make the orders of 7 August 2001.

Associate:

Dated:              10 August 2001