FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia (No 3) [2012] FCA 637

THE COURT ORDERS THAT:

1.    The first respondent’s claim for public interest immunity in relation to the documents (or parts of documents) specified in the affidavits of:

1.1    Philippa Spence, affirmed on 29 February 2012; and

1.2    Philippa Spence, affirmed on 16 March 2012;

be upheld in full.

2.    The first respondent’s costs in relation to the question of public interest immunity be the first respondent’s costs in the proceeding.

3.    The proceeding be listed for further directions at 9.30am on Friday, 3 August 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This proceeding was commenced on 12 June 2007. On 28 August 2008, on the motion of the first respondent, the Commonwealth of Australia, I ordered that the proceeding be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) on the basis that the applicant, Mr Spencer, had no reasonable prospect of successfully prosecuting the proceeding. An appeal by leave to the Full Court was dismissed.

2    Following the decision of the Full Court, the High Court delivered its reasons in ICM Agriculture Pty Ltd v The Commonwealth (2010) 240 CLR 140 (ICM). On 1 September 2010, the High Court upheld an appeal from the orders of the Full Court and set aside the order for summary dismissal (see Spencer v Commonwealth of Australia (2010) 241 CLR 118). The decision in ICM was a substantial basis for the decision of the High Court. In their joint judgment, French CJ and Gummow J observed (see [28]) that Mr Spencer alleged in his amended statement of claim the existence of a scheme or device to which the Commonwealth and the State of New South Wales were parties, and which was designed to avoid the “just terms” constraint on the exercise of the legislative power of the Commonwealth under s 51(xxxi) of the Constitution. The Commonwealth laws and arrangements were said to have been made for the purpose of taking property other than on just terms, including Mr Spencer’s property.

3    In dealing with the appeal from the Full Court, French CJ and Gummow J said that the question that arose was whether Mr Spencer’s pleading left open the possibility, requiring factual explanation and possible amendment, of an informal arrangement between the Commonwealth and the State of New South Wales conditioning Commonwealth funding to the State upon acquisition by the State of Mr Spencer’s property rights on other than just terms. Their Honours considered that, on the face of the pleading as it then stood, that possibility was open, even if not fully formulated or adequately particularised.

4    Their Honours adverted to the possibility that, given the existence of Commonwealth Acts and the relevant inter-governmental agreements, it was likely that there were negotiations and communications between the Commonwealth and the State of New South Wales, records of which might flesh out or cast light upon the practical operation of the Commonwealth and State funding arrangements. Their Honours considered that documentary and electronic records of such negotiations and communications might be amenable to discovery and ancillary processes that could be invoked by Mr Spencer. Their Honours said that, in the light of the decision in ICM, it could not be said, for the purposes of s 31A of the Federal Court Act, that Mr Spencer had no reasonable prospect of successfully prosecuting the proceeding. Their Honours considered that the pleading in that respect, as it then stood, raised the possibility of particularisation and/or amendment, although they observed that that was not to say that, even on the basis of a proposed further amended statement of claim, Mr Spencer had a strong case. However, their Honours considered that it was sufficient to say that his case was not fanciful, and therefore it could not be said that it was a case that Mr Spencer had no reasonable prospect of successfully prosecuting.

5    Following remitter of the proceeding by the High Court, Mr Spencer filed an amended statement of claim dated 14 February 2011 (the further amended statement of claim). Relevantly, in paragraph 34A, Mr Spencer alleged that, by an informal arrangement between the Commonwealth and the State of New South Wales, made in or prior to November 1997, and extended or amended in or about 2003, the Commonwealth and the State agreed to acquire property of Mr Spencer other than on just terms. He alleged that the arrangement was to the effect that, in return for money, the State of New South Wales would make measures that would preclude or reduce the exposure of one or both of the Commonwealth and the State to the requirements of the guarantee given in s 51(xxxi) of the Constitution.

6    The further amended statement of claim asserted that the Commonwealth and the State agreed the terms of the alleged informal arrangement between themselves at a series of meetings held in or prior to 1997. The further amended statement of claim alleged that the informal arrangement included, or was evidenced by:

    the Council of Australian Governments (COAG) ministerial committee minutes of the National Environment Protection Council from 1993 to 2005;

    the special minutes of COAG in a series of meetings convened in November 1997 leading up to and during the Kyoto Protocol conference commencing in December 1997;

    a letter between the Prime Minister or the Minister for the Environment of the Commonwealth to the Premier of the State dated in or about 2003; and/or

    informal discussions and understanding between those persons to the same effect, referring to the National Vegetation Initiative and extension of the land clearing controls in New South Wales.

7    The further amended statement of claim then went on to assert, in paragraph 36, that, pursuant to the alleged agreements or informal arrangement, the State made legislative measures including the Native Vegetation Conservation Act 1997 (NSW) and the Native Vegetation Act 2003 (NSW). Finally, paragraph 37 asserted that the Commonwealth had received a substantial benefit from the passage of those State measures.

8    Following disputation as to the entitlement and extent of discovery that was appropriate, in the light of those allegations and their denial by the State and the Commonwealth, orders were made by consent on 31 May 2011 that the Commonwealth give discovery of documents created between 1 January 1997 and 6 March 2007 that fell within one of three categories. The first category specified documents that relate to paragraphs 34A, 36 and 37 of the further amended statement of claim. The second category specified the inter-governmental agreements referred to in paragraphs 14, 24, 26 and 28 of the further amended statement of claim, documents evidencing any amendment to those agreements, and documents regarding implementation and compliance with those agreements by the State, insofar as they related to preserving native vegetation or preventing the clearing of native vegetation on land that includes Mr Spencer’s property. The third category specified correspondence relating to funding or payments from the Commonwealth to the State in relation to, or under, those inter-governmental agreements, or any informal arrangement referred to in paragraph 34A of the further amended statement of claim, and referring to preserving native vegetation or preventing the clearing of native vegetation on land that includes Mr Spencer’s property.

9    The Commonwealth filed affidavits of discovery in compliance with those orders. However, in respect of a number of documents, the Commonwealth claimed public interest immunity, and asserted that no access to those documents should be granted to Mr Spencer. After further disputation, some accord was reached as to the way in which the claim for public interest immunity would be resolved. The Commonwealth identified seven specific documents, including a file, in respect of which public interest immunity was claimed. The parties agreed that a determination of the claim for public interest immunity in relation to those documents would resolve the question that presently exists.

10    The Commonwealth’s claim, apart from the affidavits of discovery, is based on evidence of Dr Ian Watt, Secretary to the Australian Government Department of the Prime Minister and Cabinet, and Ms Philippa Spence, First Assistant Secretary, Cabinet Division, within the Department of the Prime Minister and Cabinet. Before dealing with their description of the seven sample documents, and the evidence that is said to support the claim for public interest immunity, it is desirable to say something about the principles that are applicable to the resolution of the question before me.

11    Papers that have been brought into existence within the governmental organisation for the purpose of preparing a submission to Cabinet belong to a class of documents that are of a nature that ought not to be examined by the Court except in very special circumstances (see Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 at 653). An objection may be made to the production of a document because it would be against the public interest to disclose its contents or because it belongs to a class of documents that, in the public interest, ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. A claim to withhold documents because of the class to which they belong will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However, there are certain documents that, by their nature, fall in a class that ought not to be disclosed, no matter what the documents individually contain. That is to say, the law recognises that there is a class of documents that, in the public interest, should be immune from disclosure. The class includes Cabinet minutes and minutes of discussions between heads of departments, papers brought into existence for the purpose of preparing a submission to Cabinet, and any documents that relate to the framing of government policy at a high level (see Sankey v Whitlam (1978) 142 CLR 1 at 39).

12    The object of the protection of such documents, however, is not to protect ministers and other servants of the Crown from criticism, but to ensure the proper working of government. It is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No minister or senior public servant could effectively discharge the responsibilities of his or her office if every document prepared to enable policies to be formulated was liable to be made public. The public interest, therefore, requires that some protection be afforded by the law to documents of that kind. On the other hand, it does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal (see Sankey v Whitlam at 40).

13    In a particular case, the Court must balance the general desirability that certain documents should not be disclosed against the need to produce such documents in the interests of justice. The extent of protection required will depend, to some extent, on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the Court concludes that their disclosure would not really be detrimental to the public interest, an order for production may be made (see Sankey v Whitlam at 43). Cabinet decisions and Cabinet papers do not stand outside the general rule that requires the Court to determine whether, on balance, the public interest requires production or non-production. Thus, for example, the public interest does not call for the non-disclosure of Cabinet documents when their significance has become purely historical (see Sankey v Whitlam at 96).

14    However, the efficiency of government would be seriously compromised if Cabinet decisions and papers were disclosed whilst the topics to which they relate are still current or controversial. Cabinet proceedings have always been regarded as secret and confidential (see Sankey v Whitlam at 97). On the other hand, a prohibition against the disclosure of Cabinet proceedings until such time as they are only of historical interest gives overmuch protection to government at the expense of the litigant’s right to a fair trial. If the topics to which a proceeding relates are no longer current, the risk of injury to the efficient working of government is slight, and the requirements of the administration of justice should prevail (see Sankey v Whitlam at 98).

15    To ensure that the protection given to Cabinet proceedings is effective, documents and communications passing between a minister and the head of his or her department relating to Cabinet proceedings, as well as material prepared for Cabinet, must be protected. Further, important matters of policy are often resolved below the level of Cabinet. Accordingly, documents and communications such as reports of inter-departmental and other government committees, passing between ministers and public servants, would also be subject to public interest immunity. On the other hand, documents that relate to issues that are no longer current will not be afforded immunity (see Sankey v Whitlam at 98-100).

16    While there is increasing public insistence upon the concept of open government, members of Cabinet should not be severely hampered in the performance of the function expected of them. They would be so hampered if they had constantly to look over their shoulders at those who would seek to criticise and publicise their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited (see Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615-616).

17    The classification of claims for public interest immunity into class claims and contents claims is an accepted one. It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever their contents, from those documents that ought not to be disclosed because of their particular contents. Documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure, regardless of their contents. However, the immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must, as I have said, be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a litigant of access to relevant and otherwise admissible evidence (see Commonwealth v Northern Land Council at 616).

18    In a case where a document falls into a class of documents the disclosure of which would be injurious to the public interest, regardless of its content, a Court could conclude that disclosure would not really be detrimental to the public interest only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, that outweighed the public interest in the preservation of confidentiality. To inspect the contents of documents as a matter of course would be to disregard the basis of the immunity for a document falling within the class described. In many class cases, a court may find it necessary to inspect a document, in order to determine whether it does in truth fall into a class that attracts immunity. The contents of the document may have a bearing on that question, as may the topic with which it deals, particularly if it is no longer current or controversial.

19    However, where a document clearly falls within a class that attracts immunity, a different approach is called for. Documents recording Cabinet deliberations upon current or controversial matters are an example. There are extremely strong considerations of public policy weighing against their production, regardless of how significant disclosure of their contents might be to the case of one side or the other in a proceeding in which the claim for immunity is raised (see Commonwealth v Northern Land Council at 617).

20    Where it is established that a document belongs to a class that attracts immunity, a court will initially lean against ordering disclosure. It must be doubtful whether the disclosure of the records of Cabinet deliberations upon matters that remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights, although the position may be different in criminal proceedings (see Commonwealth v Northern Land Council at 618).

21    It is only in a case in which quite exceptional circumstances give rise to a 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 would be necessary or appropriate to order production of the documents to the Court. Where such exceptional circumstances do exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure. The judge ought not to order the disclosure of the contents of documents recording Cabinet deliberations unless the judge is satisfied that the material is crucial to the proper determination of the relevant proceeding (see Commonwealth v Northern Land Council at 619). Even though years may have passed since a relevant document was brought into existence, and government may have changed, it does not follow that the matters that are the subject of such documents have ceased to be current or controversial (see Commonwealth v Northern Land Council at 620).

22    It is possible to identify three steps that are involved in the consideration of a claim for public interest immunity. The first step is to decide whether there is a risk that production and inspection of the documents in issue would be injurious to the public interest. The second step is to determine whether there is a public interest in a party having access to those documents because such access is in the interests of the fair administration of justice. The third step is to determine whether the public interest in the fair administration of justice outweighs the desirability that the information not be disclosed. Thus, there is a balancing of two public interests, being the harm that may be caused by disclosure and the interest in ensuring that justice can be effectively administered (see Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196 at [4]).

23    Against that background, I shall consider the documents described by the witnesses in the present case and their evidence in support of a claim for public interest immunity. The documents in question fall into four categories, described by Dr Watt as follows:

    Category 1: documents submitted to and considered by Cabinet, including documents that are both identical in all relevant respects to those considered by Cabinet, and precursors of documents submitted to Cabinet;

    Category 2: documents that reveal the decision and/or deliberations of Cabinet;

    Category 3: documents prepared by the Department of the Prime Minister and Cabinet to brief the Prime Minister for the chairing of Cabinet meetings; and

    Category 4: documents brought into existence for the purpose of preparing a submission to Cabinet.

Dr Watt went on to say something about each category.

24    Category 1 consists of documents that have been considered by Cabinet, and includes Cabinet submissions, Cabinet memoranda, and other documents circulated in the Cabinet room or otherwise submitted for consideration by Cabinet. Dr Watt considers that the release of documents falling within category 1 would breach the necessary confidentiality of the Cabinet process by allowing reliable inferences to be drawn about, and in many cases directly reveal, the position taken by particular ministers in Cabinet and the subject matter of discussions by Cabinet.

25    Category 2 consists of documents that have not been considered by Cabinet, but that record or evidence either what was to be, and ultimately was, considered by Cabinet, or what had been considered and/or decided by Cabinet. The category includes Cabinet notebooks and Cabinet minutes. Where only a part of a document meets the description, the Commonwealth does not assert a claim for public interest immunity over any other part of the document. Dr Watt has said that the release of documents falling within category 2 would also breach the necessary confidentiality of Cabinet process by revealing what was discussed by Cabinet.

26    Category 3 consists of documents prepared by the Department of the Prime Minister and Cabinet, prior to a meeting of Cabinet, to brief the Prime Minister for the chairing of Cabinet. Occasionally, that category may also be provided to other ministers to brief them on an aspect of what was going to be considered by Cabinet. Those briefs set out advice from the Department of the Prime Minister and Cabinet on the Cabinet submissions or memoranda, and include recommendations, as well as background and other relevant issues relating to a particular matter that is to be considered by Cabinet. It is usual for the Prime Minister, who chairs Cabinet meetings, to bring Cabinet briefs to Cabinet meetings and to speak from those briefs. Those briefs suggest what was considered by Cabinet, and the position that various members of the Cabinet would have taken in relation to such issues, as well as arguments that the various ministers could be expected to have advanced to Cabinet. Dr Watt considers that the release of documents falling within category 3 would interfere with the efficient operation of Cabinet for three reasons: first, by breaching the necessary confidentiality of the Cabinet process; secondly, by being open to being interpreted as revealing issues, options or proposals that have been considered by Cabinet; and thirdly, by being open to being interpreted as revealing the manner in which the Prime Minister proceeded in relation to certain proposed policy changes.

27    The process directed to obtaining a Cabinet decision upon a matter of policy necessarily involves documents being created within government departments and instrumentalities for the purpose of preparing a submission to Cabinet. Documents in that category, which is category 4, may include preparatory material, parts of which were subsequently included in a Cabinet submission, or letters from ministers seeking consideration by Cabinet of a particular issue. Dr Watt considers that the release of documents falling within category 4 would interfere with the efficient operation of Cabinet by breaching the necessary confidentiality of the Cabinet process by allowing reliable inferences to be drawn about and, in many cases, by directly revealing the position taken by particular ministers in Cabinet, and the subject matter of discussions by Cabinet.

28    Dr Watt considers that any release of documents that breach the confidentiality of the Cabinet process, as outlined above, would significantly interfere with the efficient operation of Cabinet, and, therefore, with decision-making and policy development in Australia, regardless of the subject matter of the document. He considers that any compromise of the confidentiality of Cabinet would cause current and future Cabinet ministers, as well as the officials having the task of briefing them about matters to be discussed in Cabinet, to apprehend that what was written by them for the purposes of Cabinet, and what was discussed in Cabinet, might not remain confidential. That might cause them to temper what they wrote or said in the course of Cabinet deliberations. Against that background, I shall now consider the seven documents in question.

29    The first document, described as Document 603 in the affidavit of discovery, falls within category 4. Document 603 is a briefing provided by Dr Watt to the then Prime Minister’s Chief of Staff on 28 October 1998 in relation to the possibility of bringing forward expenditure from the Natural Heritage Trust Fund. Immunity is claimed only in respect of a part of the document that describes issues that were to be considered by Cabinet and how the matter was to be brought before Cabinet. Dr Watt considers that the disclosure of that part of the document would allow reliable inferences to be drawn, particularly when combined with other pieces of information, about the subject matter of discussions by Cabinet, the likely timing of such discussions, the urgency of a particular Cabinet deliberation, and the position taken on a particular issue by a Cabinet minister. He considers that the revelation of such matters would breach the necessary confidentiality of the Cabinet process.

30    The relevant material relates to Australia’s approach to natural resource management, which, Dr Watt says, is generally a matter of current sensitivity. Funding for the Caring for Our Country program, which is a successor program to the Natural Heritage Trust, is, he says, a current issue. Dr Watt considers that the disclosure of information concerning aspects of Cabinet’s deliberations concerning that topic, albeit in 1998, would cause current and future Cabinet ministers, as well as the officials who brief them, to have significant concerns about the possibility that details of their deliberations would be released prior to the open access period provided for in the Archives Act 1983 (Cth) (the Archives Act). He considers that they would therefore strongly consider tempering what they said or wrote in the course of Cabinet deliberations. That would undermine the process of decision-making and policy development in Australia.

31    The second document, described as Document 604, is in category 2. Again, only part of the document is the subject of a claim for public interest immunity. Document 604 contains a handwritten notation on agenda papers for the first meeting of the Ministerial Committee on Greenhouse on 1 June 1998. The notes were prepared by an officer of the Department of the Prime Minister and Cabinet. Dr Watt considers that the relevant handwritten material in the document would reveal what was considered by Cabinet during a particular month and year. He says that the material relates to Australia’s strategies to address climate change.

32    The third document, Document 660, is also in category 2, and is a draft of a paper titled “Climate Change, Third Conference of Parties (COP 3) Negotiating Instructions for the Final Stages”. The paper addresses the positions to be taken by Australia at the Kyoto conference. Dr Watt categorises Document 660 as a high-level document that reveals deliberations of Cabinet. However, it is not a document considered by Cabinet or a precursor of a document submitted to Cabinet. Document 660 had previously been categorised as a category 1 document by Ms Spence. Dr Watt considers that the disclosure of Document 660 would allow reliable inferences to be drawn about matters considered by Cabinet.

33    The next document is Document 661, which is also in category 2. Document 661 is a facsimile dated 22 June 1998 from the Manager, Business Competitiveness and Coordination Branch, of the Department of Industry, Science and Tourism, to officers of the Australian Greenhouse Office, the Department of Primary Industries and Energy, the Department of Foreign Affairs and Trade, the Department of the Prime Minister and Cabinet, and a minister’s office. The document contains drafting comments on a draft Cabinet submission, consistent with the normal process of development of a Cabinet submission. The draft Cabinet submission refers to Australia’s strategies to address climate change. The facsimile quotes parts of a draft Cabinet submission, discusses the issues raised by the draft Cabinet submission, and provides detailed proposed amendments. Dr Watt considers that disclosure of Document 661 would reveal the substance of significant aspects of a subsequent Cabinet submission, and thus reveal what was considered by Cabinet. He considers that the subject of Australia’s strategies to address climate change is one of continuing sensitivity.

34    The fifth document is Document 662, which is also in category 4. Document 662 is a facsimile from the Manager, Business Competitiveness and Coordination Branch of the Department of Industry, Science and Tourism to an officer in the Australian Greenhouse Office, dated 11 June 1998. It provides comments on a draft document to be considered by Cabinet, consistent with the normal process of development of a matter for Cabinet’s consideration. Dr Watt considers that disclosure of Document 662 would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet and the positions taken by particular ministers in Cabinet. He also says that the document concerns aspects of Australia’s strategies to address climate change at the time at which it was brought into existence.

35    The sixth document, Document 704, is dated 10 May 2005. It is a brief to the then Prime Minister on a Cabinet submission concerning a COAG meeting in June 2005. It is a category 3 document. The brief summarises the contents of the Cabinet submission, provides analysis of the issues raised by the Cabinet submission, refers to the Prime Minister’s approach on one issue, refers to the position taken by other departments on the Cabinet submission, and makes a recommendation as to the position that the Prime Minister should take in Cabinet in relation to the Cabinet submission. Dr Watt considers that disclosure of Document 704 would reveal issues, opinions and proposals that were considered by Cabinet, and also tend to reveal the manner in which the Prime Minister, and other ministers, proceeded in relation to the matters dealt with in the Cabinet submission. Further, he says, Document 704 addresses a broad range of issues, many of which are of continuing sensitivity, consistent with the range and nature of issues commonly considered by COAG.

36    Finally, Document 721 is a Cabinet file. Cabinet files contain official Cabinet records and administrative documentation directly related to the official Cabinet record. They are held separately from the other working files of government administration. That is reflected in the file user’s aide-memoire, which features on the cover of Cabinet files. Copies of Cabinet documents, other than those contained in Cabinet files, must be destroyed when no longer in day-to-day use. Prior to the commencement of the open access period, as defined by s 3 of the Archives Act, Cabinet files are not available to governments other than those which created them. The confidentiality of Cabinet files is protected in a manner similar to highly sensitive national security documentation, in both storage and transmission.

37    Official Cabinet files are stored by the Cabinet Secretariat in secure vaults, and the electronic transmission of official Cabinet documentation is only authorised to occur on a secure network certified by the Defence Signals Directorate. Document access records are also maintained for all official Cabinet files to complement the robust measures taken to ensure the confidentiality of Cabinet deliberations. That includes document distribution lists, unique copy numbering for documentation, and electronic forensic audit capabilities, to assist the Australian Federal Police in the event that the confidentiality of records may have become compromised.

38    The documents that are contained on Cabinet files include such things as the following:

    Cabinet submissions submitted by a minister in order to seek agreement to policy outcomes;

    Cabinet memoranda submitted by a government department in order to outline key issues relating to policy outcomes;

    corrigenda to Cabinet submissions;

    reports and attachments to Cabinet submissions and Cabinet memoranda that have been brought into existence for the purpose of being considered by the Cabinet;

    Cabinet briefs prepared by the Department of the Prime Minister and Cabinet prior to a meeting of the Cabinet to brief the Prime Minister for the chairing of Cabinet, and, occasionally, other departmental briefs related to a Cabinet submission or memorandum;

    finance briefs submitted by the Department of Finance and Deregulation for the purpose of briefing ministers on matters before the Expenditure Review Committee of the Cabinet;

    any papers circulated in the Cabinet room related to matters under discussion by the Cabinet;

    papers concerning matters to be dealt with by Cabinet which are of a genuine urgency and therefore require immediate Cabinet discussion, but not so complex as to require a Cabinet submission;

    correspondence between ministers, and between ministers and the Prime Minister;

    Cabinet minutes, which are an official record of the deliberations and decisions from a Cabinet meeting; and

    administrative documents directly related to Cabinet documents or meeting arrangements such as records of access to Cabinet files and briefing requests.

39    The relevant contents of the Cabinet file Document 721 consist of a Cabinet submission made to Cabinet by ministers in order to seek agreement to policy outcomes, a corrigendum to the Cabinet submission, a Cabinet brief prepared by the Department of the Prime Minister and Cabinet prior to a meeting of the Cabinet to brief the then Prime Minister for his chairing of Cabinet, and a number of Cabinet minutes which are official records of decisions from Cabinet meetings. Dr Watt considers that the disclosure of the contents of the file would have the consequences that I have briefly described, and which Dr Watt described elsewhere in relation to documents in categories 1, 2 and 3.

40    The issues canvassed on the discoverable documents on Cabinet file Document 721 relate to a range of subjects, which include Australia’s approach to natural resource management and Australia’s approach to management of the environment. Dr Watt considers that revelation of those materials would have an extremely prejudicial impact on the future ability of Cabinet meetings to provide a forum in which comprehensive and candid discussion by ministers could take place.

41    Dr Watt considers that the damage to the public interest that would result from the disclosure of the documents in respect of which public interest immunity is claimed would be particularly severe. The documents in respect of which public interest immunity is claimed relate to one or more of five subjects identified by Dr Watt, being:

    Australia’s strategies to address climate change;

    Australia’s approach to international treaties on climate change;

    Australia’s approach to natural resource management;

    Australia’s approach to management of the environment; and

    Australia’s approach to negotiations with the States in respect of those matters.

Dr Watt considers that those subjects continue to remain at the forefront of Australian policy development and political debate and Australia’s standing in the international community. He considers that the release of documents relating to relatively recent Cabinet deliberations of a former government concerning such matters would have a particularly chilling effect on the ability of Cabinet meetings to provide a forum in which comprehensive and candid discussions by ministers could take place.

42    That evidence, in my view, is cogent evidence in support of the claim for public interest immunity in respect of the seven documents to which I have referred. Mr Spencer contests the claim to public interest immunity on the basis that many of the documents could not be said to be current or controversial. That, however, is not to the point. The content of the documents may, indeed, not be current or controversial. However, the topics to which the documents relate are, on the basis of Dr Watt’s evidence, current and controversial.

43    Mr Spencer, through his counsel, criticises the generality with which the claim for public interest immunity is made. That, however, is the nature of such a claim. A claim in respect of a class will normally be upheld if the class is one that is recognised as being, prima facie, subject to public interest immunity. The documents presently in question all fall within one or other of the classes or categories identified by Dr Watt.

44    The Commonwealth also prepared a further, confidential affidavit by Dr Watt, outlining in more detail the basis of the claim for public interest immunity. However, senior counsel for the Commonwealth invited the Court to consider the question of immunity without reference to that further evidence and, a fortiori, without consideration of the documents themselves. I am satisfied, on the material that I have presently considered, and without reference to the confidential affidavit, that the claim to public interest immunity has been made out.

45    It is of course difficult to determine what, if any, significance the documents might have for Mr Spencer’s case. The descriptions that have been given to them by Dr Watt do not suggest to me that they would be crucial to the issues raised by paragraphs 34A, 36 and 37 of the further amended statement of claim. They do not appear to me to have more than a marginal relevance to those assertions. That assessment, of course, must be a superficial one, having regard to the fact that I have not seen the documents, and have based my assessment simply on the description given to them by Dr Watt. However, that description was accepted, in the sense that there was no cross-examination of Dr Watt.

46    I do not suggest any criticism for such a failure. Nevertheless, it seems to me that, in the circumstances, I have to accept the evidence of Dr Watt at its face value. On the basis of that evidence, the claim for public interest immunity is made out. I propose to make orders accordingly.

Associate:

Dated:    19 June 2012