FEDERAL COURT OF AUSTRALIA

Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196

REASONS FOR RULING

Introduction

1    This matter has already been the subject of previous interlocutory rulings, in which the background to it appears. I shall not repeat that background: see Sportsbet Pty Ltd v Harness Racing Victoria [2009] FCA 1471; Sportsbet Pty Ltd v Harness Racing Victoria (No 2) [2010] FCA 952; Sportsbet Pty Ltd v Harness Racing Victoria (No 3) [2010] FCA 1420.

2    The present issues concern the extent to which the State of Victoria (the State) as the second respondent should make available for inspection certain documents which it has discovered in its list of documents of 13 December 2010 and over which it has claimed a privilege from production and inspection on the grounds of public interest immunity or Parliamentary privilege. There is a related interlocutory issue in relation to a document produced under subpoena by the Allen Consulting Group Pty Ltd (the Allen document), in respect of which the State also claims that it should not be available for inspection also on the ground that it is privileged from such inspection on the ground of public interest immunity. Public interest immunity is capable of applying to a document produced from the hands of a private party, if that interest nevertheless resides in the State: Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 per Mason J at 591.

3    I have had the benefit of very helpful submissions from senior counsel for both the State and Sportsbet Pty Ltd (Sportsbet). The general principles applicable to a claim for public interest immunity at this stage of the proceeding are the common law principles: Mann v Carnell (1999) 201 CLR 1; Queanbeyan City Council v ACTEW Corporation Ltd (2008) 253 ALR 121 at [7] per Stone J. Those principles are conveniently set out in the reasons for judgment of McLellan CJ in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2003] NSWLEC 322 at [19], and by Jagot J in Betfair Pty Ltd v Racing New South Wales (No 7) (2009) 181 FCR 66. In determining the claim for public interest immunity, the Court may inspect the documents in issue, although as a starting point it is not routinely done. As was said in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 36-37, the Court should conduct a “kind of anticipatory balancing exercise” to decide whether a document should be inspected.

4    For the purpose of considering the matters in issue, there are three steps. First it is necessary to decide whether there is a risk that production and inspection of the documents in issue would be injurious to the public interest. Secondly, it is necessary to determine whether there is a public interest in Sportsbet having access to those documents; namely in the interest in the fair administration of justice. In particular, one must have regard to the circumstances in which discovery and inspection takes place, that is with the implied undertaking attached to the benefit of inspecting the documents discovered in a proceeding and the limited use to which any information obtained by inspecting such material may be put. Ultimately, the third step is whether the public interest in the fair administration of justice outweighs the desirability that the information not be disclosed. That is, there is a balancing of two public interests: the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered: see Sankey v Whitlam (1978) 142 CLR 1.

5    It is accepted that documents that actually record the deliberations of Cabinet are more likely to attract the immunity than documents prepared outside of Cabinet, such as submissions or reports: Commonwealth v Northern Land Council (1993) 176 CLR 604. The balancing exercise, which is the third step, where the Court is required to undertake a balancing process between the public interest in the administration of justice and the public interest involved in support of the immunity, is discussed by the Full Court in The Commonwealth v Northern Land Council [1991] 30 FCR 1 at 38. In that case the following factors for consideration were identified per Black CJ, Gummow and French JJ:

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.

6    The State has provided a list of the 131 discovered documents over which it initially sought to claim that the documents should not be available for inspection on the ground of public interest immunity. That list was broken into two sections: “Specific Claims” comprising 74 documents and “Class Claim” comprising 57 documents and within each section there were subheadings to describe a group of specified documents. In addition, by the two final submissions, the number of documents over which public interest immunity was claimed had reduced somewhat.

7    The “Specific Claims” involved 43 documents described broadly as “Documents from the Office for Racing (Department of Justice)”, three documents described as “Documents from the Office of the Minister for Racing”, seven documents described as “Documents from the Department of Premier and Cabinet (and Office of the Chief Parliamentary Counsel)”, and one document described as “Document from the Office for Racing (Department of Justice)” previously listed under “Class Claim”.

Consideration

8    The “Class Claim” included 12 documents described under the heading “Cabinet Documents from Cabinet Secretarial Branch, Department of Premier and Cabinet” and 25 documents described under the heading “Documents from Office of Chief Parliamentary Counsel, Department of Premier and Cabinet”.

(1)    The Class Claim

9    The Class documents are said generally to constitute Cabinet documents, that is documents which show the deliberations of Cabinet. If that is so, I accept that as a starting point they are generally immune from inspection. Exceptionally, their inspection should only be permitted in very special circumstances: see Cross on Evidence, (8th ed, 2010) at 960-961. That general recognition extends to documents of a Cabinet committee: Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2) [2001] VSC 249 at [21] per Byrne J.

10    I have considered the documents listed in the Class documents. In my view, subject to those specifically dealt with below, each is either a record of the deliberations or decisions of Cabinet or of a Cabinet committee or a document submitted to Cabinet or to a Cabinet committee for its consideration, or in a few instances a draft of such a document. That general conclusion is supported by the affidavit evidence of the State.

11    All the remaining Class documents but one, those numbered 112, 114, 123, 124 and 125, are notes of the deliberations of Cabinet prepared for the Minister for Racing. If the record of his public comments were available it would, if appropriately relevant, be discoverable and be available for inspection. The evidence does not disclose that. If those notes were used, what was said may not have included the details of the notes. Consequently, at present those records really are a different form of record of the deliberations of Cabinet. The final document in the Class documents is that numbered 130, an advice from the Department of Treasury and Finance to the Treasurer on a Cabinet Submission. Its contents would, I am satisfied, reveal a Cabinet submission.

12    I do not think there are strong reasons why the public interest in the administration of justice requires the disclosure of the contents of those documents to Sportsbet. I am assuming their contents might be of some interest to Sportsbet in its claim, but having regard to the issues in the proceeding, on a clear balance I would not direct their inspection. In my view, in the case of those documents, the balance lies firmly in favour of the public interest in preserving Cabinet confidentiality. The factor primarily influencing that conclusion is that the assessment of the purpose or effect of the impugned provision of the Gaming Regulation Act 2003 (Vic), or its effect on the operation of interstate trade in the market identified by Sportsbet requires an objective determination. If there are comments attributed to a person or persons about those matters, even comments recorded in a Cabinet discussion or in a Cabinet resolution, that material would not in my view legitimately influence the objective assessment of the purpose or effect of the impugned provision, or the relationship of the scope of the impugned provision to the State, or at least be most unlikely to do so. Perram J in Betfair Pty Ltd v Racing New South Wales (2010) 268 ALR 723 at [236]-[237] made comments to the same effect.

13    The contentions of senior counsel for Sportsbet stressed that, in the measurement of the significance or potential significance of many of the documents to Sportsbet’s case, references to material that focused on “revenue leakage” or to plugging a “hole in the protectionist wall” may be strongly probative and so the public interest in his client having access to that material would be strong. I am prepared to accept that such material might be of some assistance, but for the reasons just given I do not think that subjective expressions of persons in those documents (assuming they appear) will greatly inform the Court’s task in deciding the validity of the impugned provision.

14    The attack upon the condition imposed by HRV is subject to a separate line of challenge, but again I doubt that any material in the Class documents could usefully inform the reasons for HRV imposing the impugned condition. Even allowing for some relevance of that material, and I am not sure it has such relevance, the factors which militate against the disclosure of Cabinet considerations in the public interest would lead to the exercise of the discretion to preserve Cabinet confidentiality.

(2)    The Specified Documents

15    As the State did, I shall deal with these documents in categories.

16    It is convenient at this point to refer to another argument of counsel for Sportsbet. In effect, it was put that the selection of the privileged material has been somewhat random. He pointed to other discovered and inspected material which apparently is quite similar in character to the disputed documents. He also pointed to the fact that some claims for non-production based on public interest immunity have not been pursued. I do not think that those matters support the inference that, in respect of the presently contentious documents, the claim to public interest immunity is not properly made. It is necessary to consider those individual claims on their merits.

17    There are 13 documents said to be subject to parliamentary privilege, numbered 1, 2, 3, 21, 25, 26, 27, 33, 35, 56, 57, 60 and 74 in the Schedule of the Disputed Documents provided by the State.

18    The relevant principles are discussed by Gray J in Mees v Roads Corporation (2003) 128 FCR 418 at [72]-[79].

19    There is also authority to indicate that the term “proceedings in Parliament” extends to proceedings in parliamentary committees: see eg R v Murphy (1986) 5 NSWLR 18 at 25 per Hunt J; Cornwall v Rowan (2004) 90 SASR 269 at [387]-[389] per Bleby, Besanko and Sulan JJ. The identification of what constitutes proceedings in Parliament is a practical one, rather than one driven by artificial and narrow lines: R v Chaytor [2010] UKSC 52 at [47] per Lord Phillips. In Sportsbet Pty Ltd v New South Wales (No 3) (2009) 262 ALR 27 (Sportsbet (No 3)) at [19] and [21] adopted such an approach.

20    The extent of protection of documents which fall within the description of proceedings in Parliament is explained in Rowley v O’Chee [2001] 1 Qd R 207 at 222-223 per McPherson JA (with whom Moynihan JA agreed). The privilege protects the documents from disclosure and not merely from use: see per Jagot J in Sportsbet (No 3) at [19] and [21].

21    I have considered the description of each of the documents listed above. Variously, they concern either the proceeding of a Joint Committee of the Victorian Parliament directly or by reference to what there took place, or are notes prepared for the Minister for Racing for use in that Parliament.

22    In my view, they are so closely connected to the business of the Victorian Parliament so as to fall within the aegis of parliamentary privilege.

23    A second group of the specified claims documents are said to be closely related to Cabinet processes, as they are documents prepared as Cabinet proposals or submissions or drafts of those documents or disclose such material (documents numbered 4, 8, 9, 11, 14, 15, 18 and 20) or contain correspondence between departmental officers commenting on draft proposed Cabinet submissions (documents numbered 5, 6, 7, 10, 12, 13 and 16).

24    Whilst slightly more remote than the Cabinet documents considered above, having regard to the description of those documents, I am of the view that they have the characteristics attributed to them by the State. Accordingly, I accept that there is a public interest in their non-disclosure. For the reasons already given, I do not consider that, on the issues which concern the State in this proceeding, the contents of these documents do not carry much evidentiary significance. Sportsbet, through its counsel, has not persuaded me to the contrary. Accordingly, whilst I assume that they may have some significance to Sportsbet’s case, the balancing exercise required by the third step nevertheless leads me to the view that the public interest falls in favour of not requiring those documents to be produced for inspection.

25    I have reached the same conclusion in respect of a further group of documents which, it is contended by the State, concern “high level policy”. They are documents numbered 52, 53, 54, 55, 69, 70, 71, 72 and 73. Their descriptions confirm that they are correspondence between the Minister for Racing and the Premier concerning proposed legislative amendments, and briefings to the Premier on that topic. The affidavit evidence explains in a little more detail their character. In my view and on much the same analysis as referred to above, public interest is better served by the non-disclosure of the documents. They are not documents of such an apparent character so as to materially advance, or potentially to materially advance, Sportsbet’s case against the State or against HRV. Consequently, I do not think it is necessary to fully explore the remarks of Heydon J in Thomas v Mowbray (2007) 233 CLR 307 at [621]-[626] regarding the means of proof of “constitutional facts”. His Honour’s remarks suggest that such facts must be proved in the ordinary way. The nature of the present challenge is a different one from that being considered by his Honour.

26    The next group of documents addressed in submissions (documents numbered 17, 22, 23, 24, 34, 39, 41, 46, 47, 48 and 58) are said to concern intergovernmental relations, that is communications at a ministerial or high level between the State and other governments. It is obviously the case that such communications, if private, should not be routinely disclosed. The disclosure may inhibit an appropriate level of frankness. That is probably equally so in respect of ministerial briefings for such communications as it is with the intergovernmental communications themselves at ministerial level. Again, having considered the documents as described, and in the light of the submissions, I have some doubt that the documents, if inspected, will provide anything of real significance to the case of Sportsbet. However, even accepting that their contents may have some relevance to the case of Sportsbet, on balance I am of the view that the public interest is better served by preserving their confidentiality.

27    Finally, documents 37, 38, 59, 61, 67 and 68 are of concern to the State. They are characterised, satisfactorily in my view, as documents concerning stakeholders. Importantly, they are documents created at a high policy level, and in part at least (on the evidence) reflective of Cabinet deliberations. They are also in part dealing with ongoing sensitive policy issues. I am satisfied that there is a significant public interest in their non-disclosure. I have not been persuaded that their disclosure is necessary in the interests of the administration of justice, that is to secure a fair trial for Sportsbet. The contents may be of some significance, but I do not think that the documents will materially advance its case. On the balancing exercise required, I propose to preserve their non-disclosure.

28    The Allen document was procured to be included as part of a Cabinet submission. On the evidence, it has been used for no other purpose. It is within a class of documents which routinely would attract a public interest in its non-disclosure. It is, in addition, a document of ongoing political policy significance, in the course of developing a policy on matters somewhat related, but not directly so, to the issues in this proceeding. It may contain relevant background, but being part of a policy review of gambling licences it is not likely to contain material significant to Sportsbet’s case of a form which may be used in evidence. Again, on balance, I think that public policy requires its confidentiality to be preserved.

29    For the purposes of reaching the above conclusions, I have not considered it necessary to inspect any of the documents in contention. They have been made available to me to do so, had I thought that to be necessary. The documents will be returned to the solicitors for the State in due course.

30    For the reasons given, I decline to direct that the contentious documents or any of them should be made available to the solicitors for Sportsbet for inspection.

Associate:

Dated:    8 March 2011