FEDERAL COURT OF AUSTRALIA

Queanbeyan City Council v ACTEW Corporation Limited [2008] FCA 1983

PRACTICE AND PROCEDURE – Discovery of documents –Claim of public interest immunity – Australian Capital Territory government documents – Cabinet deliberations, drafting instructions to Parliamentary Counsel’s office - need to weigh public interest in confidentiality of documents against public interest in administration of justice

Acts Interpretation Act 1901 (Cth), s 15AB

Commonwealth Constitution, s 90

Evidence Act 1995 (Cth), s 130

Utilities (Network Facilities) Tax Act 2006 (ACT)

Water Resources Act 1998 (ACT)

Water Resources Act 2007 (ACT)

Air Services Australia v Canadian Airlines International Ltd (1999) 202 CLR 133

CIC Insurance Ltd v Bankstown Football Club Ltd (1997)187 CLR 384

Commonwealth v Northern Land Council (1993) 176 CLR 604

Ha v State of New South Wales (1997) 189 CLR 465

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

Sankey v Whitlam (1978) 142 CLR 1

Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63

QUEANBEYAN CITY COUNCIL v ACTEW CORPORATION LIMITED and THE AUSTRALIAN CAPITAL TERRITORY

ACD 52 of 2007

STONE J

23 DECEMBER 2008

CANBERRA (heard in sydney)

THE COURT ORDERS THAT:

1.                  Subject to order 2 of these orders, the application for access to the documents listed in the Schedule to the Court’s reasons be dismissed.

2.                  The second respondent provide discovery of the email in the Department of Treasury document numbered 284 in the Schedule to the Court’s reasons.

3.                  The applicant pay the second respondent’s costs of and incidental to the notice of motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     By notice of motion filed on 28 November 2008, the applicant in this proceeding seeks orders that the second respondent be required to produce certain documents to the applicant for inspection.  Attached to the notice of motion are lists of the documents to which the applicant sought access. 

2                     The main proceeding involves a challenge to the constitutional validity of certain levies on the grounds that, contrary to s 90 of the Commonwealth Constitution, they are excise duties.  These levies are:

(a)        a water abstraction charge imposed on water licence holders under the Water Resources Act 2007 (ACT) and previously under the Water Resources Act 1998 (ACT); and

(b)        a network facilities tax imposed on the owners of utility network facilities under the Utilities (Network Facilities) Tax Act 2006 (ACT). 

3                     On 14 July 2008 the Court ordered the second respondent to provide discovery of certain categories of documents said to be relevant to whether or not the above charges can be characterised as excises.  In accordance with that order the second respondent filed three lists of documents originating from departments of the second respondent, being the Department of Territory and Municipal Services, the Chief Minister’s Department and the Department of Treasury.  The second respondent claimed public interest immunity and legal professional privilege in respect of the documents listed in part 2 of schedule 1 to each list.

4                     When the notice of motion came on for hearing before me on 10 December 2008, Mr Kirk of Counsel, who appeared for the applicant, advised that the applicant no longer pressed its claim for access to documents in respect of which the second respondent claimed legal professional privilege.  Similarly, in respect of those documents to which the applicant still presses its claim, it does not seek access to those portions of these documents which are subject to a claim for legal professional privilege.  Mr Kirk noted, however, that some of those documents had, in fact, been produced.  Subsequent to the hearing the applicant, at the request of the Court, provided an affidavit sworn on 18 December 2008 by John Andrew Larkings, of Williams Love & Nicol Lawyers, solicitors for the applicant.  Mr Larkings' affidavit confirmed the above and annexed a revised list of the documents showing those to which the applicant currently seeks access.  The list also shows those documents where there is an unchallenged claim to legal professional privilege over part, but where the claim for access to the remainder of the document is still pressed.  The revised list is annexed as a schedule to these reasons.

Public interest immunity

The present context

5                     The applicant’s contraction of its claim means that the only issue I need decide is whether the documents in the revised list (or relevant parts of such documents) are immune from production on the basis of public interest immunity.  The second respondent claims that these documents are protected by public interest immunity on the grounds that:

(a)                it would be against the public interest to disclose the contents of the material, and

(b)               the material belongs to a class that, in the public interest, ought not to be disclosed - regardless of the content of the material.

6                     To understand the context in which the applicant seeks access to the documents it is necessary to understand the applicant's claims in the main proceeding.  The applicant claims that its interest in challenging the levies referred to above is that both have been passed on by ACTEW to the applicant.  Paragraphs [21]-[29] of the applicant's submissions on the question of public interest immunity contain a convenient summary of the basis of its challenge.

The basis of the constitutional challenge to both levies is s 90 of the Constitution, which provides that the power of the Commonwealth Parliament to “impose duties of customs and of excise” is “exclusive”.  An excise is a tax imposed on goods.

At issue in the proceedings as regards both levies is whether or not each can properly be characterised as a tax.  The classical, albeit non-exhaustive, definition of a tax is “a compulsory exaction of money by a public authority for public purposes, enforceable by law, and … not a payment for services rendered” … The very definition of a tax, therefore, involves ascertainment of the purpose of the measure in question.

Moreover, in this proceeding what is also at issue as regards both levies is specifically whether or not the levies can be characterised as “a charge for the appropriation of a limited and valuable public resource” as regards the WAC [water abstraction charge] … or it a fee for the right to use land as regards the UNFT [network facilities tax] … as opposed to a tax.…

In part the task of distinguishing between such a fee or charge and a tax will depend upon whether “the amount of the exaction has no discernible relationship with the value of what is acquired”… However, [it] is also relevant to seek to ascertain whether the true purpose of the measure, properly understood, is to raise revenue. …

It is the case of the Applicant that the purpose of both measures is to raise revenue for the ACT  and that both should be characterised as, in truth, taxes.  The purpose in character of the levies in question is thus a constitutional fact at issue in this case.

That constitutional validity, and associated constitutional facts, are at issue is a matter of significance in this case.  It touches upon the fourth factor identified by the Full Federal Court in Northern Land Council, namely the seriousness of the issues in relation to which production is sought.

…

In this context, to the extent that it is relevant to take account of considerations such as candour by public servants, or other such justifications used in support of the claim for [public interest immunity] in relation to this type of cabinet documents, it must be recalled that the very existence of the government in question ultimately is founded upon the Constitution and is subject to it.

Public interest immunity - the principles

7                     The first point to make is that the common law principles concerning public interest immunity apply here.  Section 130 of the Evidence Act 1995 (Cth) is not relevant here as it deals with the balance between the public interest in admitting information or documents into evidence and public interest immunity. 

8                     The leading case with respect to public interest immunity is Sankey v Whitlam (1978) 142 CLR 1.  Proceedings had been brought against a former Prime Minister of Australia and three former Commonwealth Ministers in which it was alleged that the defendants had been involved in a conspiracy to effect a purpose unlawful under Commonwealth law as well as a conspiracy at common law to deceive the Governor-General.  The High Court heard an application that Commonwealth documents which public interest immunity was claimed should nonetheless be disclosed.  The documents for which public interest immunity (then often referred to as “Crown privilege”) was claimed were characterised by Stephen J, at 51-2, as being concerned with:

… the highest level of the executive government, with the deliberations of Cabinet Ministers and with the advice given to those Ministers by heads of Commonwealth departments.

Specifically the documents were:

an explanatory memorandum and schedule referable to the minutes of a meeting of the Executive Council held on 7th January 1975, memoranda of various kinds passing between Treasury and the Department of Minerals and Energy together with letters between the respective Ministers, a Treasury minute paper and certain Loan Council documents.

9                     I agree with Wilcox J’s comment in North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [8] that the headnote to the report of Whitlam v Sankey in the Commonwealth Law Reports accurately summarises the substantial common ground between the members of the High Court, each of whom wrote a separate judgment.  It is, however, useful to refer to individual judgments which discuss the principles more specifically.  Before doing so, I note that the Court in Sankey was referring both to the production of documents and to their admission into evidence.  As stated above, s 130 of the Evidence Act now deals specifically with claims of public interest immunity in the context of the admission of evidence; however, this does not detract from the relevance of the High Court’s comment on the issue of disclosure.  

10                  In relation to public interest immunity, Gibbs ACJ stated the general rule at 38-39 as follows:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it.  However the public interest has two aspects which may conflict.  These were described by Lord Reid in Conway v Rimmer [1968] AC 910 at 940, as follows:

“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. …

11                  The Acting Chief Justice noted that objection to the production of a document might be on the basis of the document's contents or “because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document".  In relation to the class basis for objection his Honour held, at 43:

… 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 documents of this class, but it will not treat all such documents as entitled 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.

12                  Among the classes of documents mentioned by his Honour were Cabinet documents and other papers concerned with policy decisions at a high-level.  His Honour noted that, despite claims that such documents were absolutely protected from production, in his view they did not form a homogenous class “all members of which must be treated alike”. 

13                  A more recent, but not inconsistent, analysis is to be found in Commonwealth v Northern Land Council (1993) 176 CLR 604 where the issue was whether the Commonwealth was obliged to produce for inspection notebooks recording the deliberations of Cabinet or committees of Cabinet made variously by Cabinet officers or departmental officers.  The context was the Northern Land Council’s action to set aside an agreement it had made with the Commonwealth on the basis that the Commonwealth had acted unconscionably in negotiating and entering into that agreement. 

14                  The High Court, (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ, Toohey J dissenting) ordered the Commonwealth to produce the documents.  In their joint judgment the majority observed, at 616, that it was “hardly contestable” that records of the actual deliberations of Cabinet fell within the class of documents in respect of which “there are strong considerations of public policy militating against disclosure”.  Nevertheless even for these documents their Honours accepted that the protection is not absolute and the claim of public interest immunity must be weighed against public interest in the administration of justice.  They noted, however, (at 617) that the routine inspection of documents for which immunity is claimed on a class basis would be “to disregard the basis of the immunity for a document falling within the class described”.  Their Honours concluded at 617 that the distinction between class and content claims is “often rough and imprecise” and that it may be necessary to inspect a document to determine whether it attracts immunity.  In relation to the notebooks, their Honours said in their joint judgment, at 617-619:

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 the contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised.

…

It follows that, in our view, it is only in a case where there are quite exceptional circumstances which give rise to significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it will be necessary or appropriate to order production of the documents to the court.

15                  The applicant submits that "by implication, such a stringent approach is not adopted with respect to other types of documents which might be described as “Cabinet documents”, such as reports or submissions for the assistance of Cabinet".  In relation to these documents the applicant relied on the comments made in the joint judgment in Commonwealth v Northern Land Council at 614-615 where their Honours said:

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].

16                  The principle was certainly subject to some expression of scepticism by Wilcox J in North Australian Aboriginal Legal Aid Service v Bradley [2001] FCA 1080.  The matter involved a controversy over the appointment of Mr Bradley as Chief Magistrate of the  Northern Territory.  The Northern Territory government claimed that certain documents that the applicant wished it to disclose were protected by public interest immunity.  It was claimed that the production of the documents would adversely affect the processes and functioning of the Northern Territory Cabinet.   His Honour described the relevant documents at [12]-[13] of his reasons:

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 ….

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.

17                  His Honour reviewed the documents on the basis that the claim for public interest immunity was based on the possible in addition of candour.  His Honour accepted that there are situations where public officers might be discouraged from a candid expression of their views because they believed or feared that their words might be revealed to others and that “any such discouragement would be inimical to the public interest”.  He added, however that “everything must depend upon the nature, and subject matter of the documents”.

18                  Wilcox J attached importance to the fact that one claim made by the applicant was that the Northern Territory government was “actuated by improper purpose” in appointing Mr Bradley.  His Honour commented at [23]:

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.

19                  In concluding that the documents should be disclosed, his Honour (correctly, in my respectful opinion) weighed the impact that disclosure would have on the public interest against the impact that non-disclosure would have on the administration of justice.  Wilcox J expressed some doubt as to whether there could be “substance in a “class” claim based on the inhibition of candour” it is clear from his Honour’s reasons that, consistent with the comments of the High Court in Northern Land Council, Wilcox J recognised that the decision in any particular case very much depends on the facts of that case.

20                  The class/content categories are not absolute or mutually exclusive.  The distinction gives a starting point.  It recognises that some classes of documents, by reason of their provenance, attract a higher degree of public interest in their confidentiality than others.  It requires therefore, a commensurately higher likelihood that the public interest in the administration of justice requires their disclosure for them to be deprived of public interest immunity.  It is clear that there is an extremely high public interest in the confidentiality of documents recording Cabinet deliberations.  In general it may be said that the more closely connected documents are with actual Cabinet deliberations the greater the need to disclose them in the interests of the administration must be for access to be granted.  Ultimately, it is for the Court in the individual case to assess the material for which public interest immunity is claimed and to balance the factors referred to in Sankey v Whitlam. The general principles are not controversial and previous decisions dealing with different material can be of only limited assistance.

The subject documents

21                  At the hearing of the present application the applicant emphasised that it does not seek access to documents recording Cabinet deliberations and which attract the highest level of public interest immunity protection.  It stated that the documents which it seeks to inspect disclose the background to the imposition of the levies it seeks to set aside and claimed that “the intentions of the executive branch in introducing the measure are relevant to ascertaining the purposes of the Act, just as the purpose of legislation may be found from a Minister's Second Reading Speech”. 

22                  The applicant organised the documents to which it seeks access into five categories, which are:

1.         Submissions to Cabinet;

2.         Draft submissions to Cabinet;

3.         Minutes/briefs to ministers;

4.         Inter-departmental or intra-departmental correspondence;

5.         Drafting instructions to Parliamentary Counsel's office.

Evidence, submissions and reasons

23                  The documents on the revised list in the schedule to these reasons are divided according to the ACT government departments from which they emanate, namely the Departments of Treasury, the Chief Minister’s Department and the Department of Territory & Municipal Services.  In support of its claim for public and interest immunity, the second respondent filed three affidavits, all made on the 5 December 2008.  They are the affidavits of Daniel James Stewart, Director of Economic, Regional and Planning Policy in the Department of the Chief Minister of the ACT; Hamish Murray McNulty, Executive Director, Environment and Recreation in the ACT Department of Territory and Municipal Services; and Jason Paul McNamara, Director, Economics Branch of the ACT Department of Treasury.  These gentlemen all deposed to the nature of the documents that fell within their respective areas of responsibility and made cogent submissions as to why the claim of public interest immunity in respect of the documents should be upheld. 

24                  The way in which the applicant has categorised the disputed documents (see [22] above) ranks them in descending order of proximity to actual Cabinet deliberations.  Category 1, (submissions to Cabinet) would, as a class, have the strongest claim to public interest immunity and Category 5 (drafting instructions to Parliamentary Counsel's office) would have the weakest claim.  The documents in each of the applicant’s categories are listed in the following table and are identified by the document number in the revised list in the schedule to these reasons and the source of each document.  The allocation of documents to categories in the table differs from that of the applicant only in a few instances.  Where the applicant expressed a doubt as to a correct categorisation, for instance in relation to Treasury document 278, or where the accuracy of the categorisation was not clear to me, I have checked the documents and reallocated them if necessary.  In some cases the position was not entirely clear.  For instance, document 19 from the Chief Minister's Department may have been a draft submission to Cabinet rather than having actually been put to Cabinet.  In view of the conclusions which I have reached this has no present significance.

25                  In oral submissions the second respondent indicated that it had no objection to my reviewing the documents if necessary.  In general I have not needed to do so, however, I have done so where there was any doubt in my mind about the nature of the document or its contents.  I have also reviewed document 293 from the Department of Territory & Municipal Services.  By oversight, this document was not mentioned in the affidavit of Mr McNulty and the second respondent invited me to review this document.  Having done so, I am satisfied that it belongs in Category 3 as a brief to the Treasurer in preparation for a submission to Cabinet.

26                  It is not necessary that I set out in detail the comments made about each particular document in the affidavits referred to above.  The affidavits were read in Court and are now part of the public record.  For present purposes it is sufficient to note that each gentleman made cogent submissions in support of the second respondent's position.  Underlying these submissions was reliance on the principles of the confidentiality of the Cabinet deliberation process and collective responsibility for Cabinet decisions.  In so far as the documents in Categories 1-4 are concerned, they were all submitted to be part of the process of briefing ministers and preparing reports for deliberation in Cabinet, even where the documents were not directly considered by Cabinet. 

27                  Two documents (Department of Treasury documents 251, 256 and 284) are categorised as drafting instructions to Parliamentary Counsel's office.  Document 251 contains instructions in relation to drafting the legislation imposingUtilities (Network Facilities) Tax.  Mr McNamara alleged at paragraph 9 of his affidavit that these instructions sought the drafting of a Bill which was "to be input into a Cabinet Submission. The subsequent Cabinet Submission was deliberated upon by Cabinet".  Mr McNamara claimed that disclosure of this document would breach Cabinet confidentiality and collective responsibility.  Document 256 does not contain any such instructions but is it a request for legal advice.  Not surprisingly, this is not clear from the revised list in the schedule or in the applicant's categorisation of the documents and it explains why, as the applicant noted, public interest immunity was not originally claimed in relation to this document.  In Mr McNamara's affidavit the claim for public interest immunity in relation to this document is supported by the same argument as for document 251.  The same submissions are made in relation to document 284 in relation to which Mr McNamara states:

Document 284 is an email from Bronwyn McCaskill, an officer from Parliamentary Counsel’s Office, to Sue Ross, an officer from Treasury, attaching the Cabinet in Confidence draft version of the Utility (Network Facilities) Tax Bill.  I would not object to the email being released, however the claim of public interest immunity is maintained in relation to the attached Bill, as I believe that the release of this document would be contrary to the public interest …

Despite the position taken by Mr McNamara, the second respondent did not resile from its submission in relation to the document and the applicant did not distinguish between the two documents.

28                  It is inevitable that the applicant was not able to take issue with the evidence given by Mr McNamara, Mr McNulty and Mr Stewart.  Not having had access to the documents, the applicant has had to rely on rather more general submissions of principle.

29                  The applicant contends that whether the levies can be characterised as payment for services rendered is relevant to determining whether they impose an excise.  One measure of this, it is submitted, is whether a relationship can be discerned between the charge and the value of what is acquired.  The applicant submitted that while the objective of raising revenue is not an invariable characteristic of taxation it will often be significant; Air Services Australia v Canadian Airlines (1999) 202 CLR 133 per Gleeson CJ and Kirby J at [91].  That being so it was submitted, “The purpose and character of the levies in question thus a constitutional fact at issue in this case".

30                  In my view, insofar as this submission is intended to rebut the second respondent's claim of public interest immunity, it is misconceived.  Determining whether legislation imposes an excise is an exercise in statutory interpretation.  The days have long passed when the courts held that the meaning of legislation had to be ascertained only with reference to the words of the statute.  The range of extrinsic material to which a court may refer as an aid to interpretation has been identified by statute (eg Acts Interpretation Act 1901(Cth), s 15AB), in judicial pronouncements and by academic analysis and it is not necessary to canvass its extent here. 

31                  It is also a well-established principle of statutory construction that a court may, indeed should, consider the object or purpose of an Act and its context; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.  The applicant is correct in submitting that this is not only legitimate but desirable however it is the purpose of the statute (sometimes expressed as “the intention of Parliament”) as revealed by legitimate techniques of interpretation not the purpose of the government or the executive that is relevant.  While the Minister's Second Reading Speech made in Parliament may be relevant to indicate the purpose of the statute as accepted by the Parliament, the same cannot be said of documents considered by the Executive in the course of deciding what legislation is required or in the process of drafting the legislation.  This much is clear from the comments of the Full Court in Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 where the Court held that it was permissible to refer to the Second Reading Speech of the Bill for the Racing Legislation Amendment (Bookmakers) Act in the Legislative Assembly of the New South Wales Parliament on 19 March 2002.  The Court said, at [41]:

In this case the only possible relevance of the Second Reading Speech is in the identification of a possible objective for some aspects of the legislative scheme insofar as it relates to corporations.

32                  In the Constitutional context, the need to consider not only the language of the statute but also its purpose and practical operation was recognised in Ha v State of New South Wales (1997) 189 CLR 465, the leading authority on s 90 of the Constitution.  In Ha Brennan CJ, McHugh, Gummow and Kirby JJ said at 498:

When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates - is practical operation - must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices.

There was no suggestion that in considering the purpose of the statute that the Court might move beyond the usual aids to interpretation to consider material generated within the Executive. 

33                  The applicant referred to Sankey v Whitlam not only in relation to the principles there articulated but also as an example of a case in which documents similar to those presently under consideration were ordered to be disclosed despite the claim for public interest immunity.  As mentioned above, Sankey v Whitlam concerned criminal proceedings and allegations of conspiracy to deceive and unlawful purpose.  The allegations involved implications of moral turpitude not merely actions being beyond power.  In such a situation obviously the imperatives of justice and the need to ensure that its administration is not obstructed are compelling.  In those circumstances, it is not surprising that the justice imperatives outweighed the public interest in the confidentiality of the documents in question.

34                  This case is quite different.  The applicant’s claim is that the impugned legislation is beyond the legislative power of the ACT government; there is no claim of any ethical or moral impropriety.  For the reasons given above it is my view that the documents in question have little if any relevance to the case the applicant needs to make out if it is to succeed in its claim.  The considerations lead me to conclude that to deny the applicant access to the documents in question would have little if any impact on the applicant's access to justice in the present case.  On that basis I conclude that the public interest in non-disclosure of the documents generally outweighs the public interest in their disclosure.  The only exception I would make is that position in relation to document 284 referred to in [27] above, I shall allow the applicant access to the email but not to the attached draft Bill.  I have reviewed that email and conclude that Mr McNamara’s concession was well made.

Costs

35                  In its notice of motion the applicant sought an order for its costs of the notice of motion.  At the hearing neither party made any submission in relation to costs however I see no reason why costs should not follow the event in the usual way and will so order.

Associate:

Dated:         23 December 2008

SCHEDULE