Federal Court of Australia

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766

ORDERS

THE COURT DECLARES THAT:

1.    The following documents, identified by reference to the tab numbers utilised in the aide memoire prepared on behalf of the Secretary, Department of Premier and Cabinet (New South Wales), are not immune from production on the basis of public interest immunity: documents 31, 43, 44, 52, 207, 213, 215, 325, 444, 445, 446, 447, 448, 454 and 455.

THE COURT ORDERS THAT:

1.    The fourth respondent, the State of New South Wales, produce to the applicant the documents identified in the declaration by 5.00 pm on 9 December 2020, or such later time as agreed to in writing by the applicant.

2.    If the parties are unable to agree on consent orders in relation to the costs of this proceeding, they are to file written submissions, not exceeding five pages in length, in respect of that issue within seven days of this judgment and the Court will determine that issue on the papers.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The issue addressed by this judgment is whether claims of public interest immunity made by the Secretary, Department of Premier and Cabinet (New South Wales) in respect of certain documents said to be Cabinet documents should be upheld.

2    The Australian Competition and Consumer Commission (ACCC) is prosecuting a proceeding against NSW Ports Operations Hold Co Pty Limited and two of its subsidiaries (collectively, the NSW Ports parties). The ACCC alleges that the NSW Ports parties contravened s 45 of the Competition and Consumer Act 2010 (Cth) by entering into agreements with the State of New South Wales in 2013 which contained provisions which had the purpose, or would have or be likely to have the effect, of substantially lessening competition in the market for the supply of port services for container cargo in New South Wales. The NSW Ports parties subsequently filed a cross-claim against Port of Newcastle Investments Pty Limited and two related companies (collectively, the Port of Newcastle parties) and the State.

3    The claims of public interest immunity relate to documents that would, but for those claims, be required to be produced, discovered or otherwise disclosed by either the State or Morgan Stanley Australia Limited, a company which had been retained by the State to advise it in relation to the commercial transactions which lie at the heart of the proceeding. The basis of the claims is that the documents fall within a class of documents, referred to generally as “Cabinet documents”, the disclosure of which, so it was said, would prejudice the proper functioning of the government of the State. The ACCC accepted that the documents the subject of the claims were of a class which prima facie were properly the subject of claims of public interest immunity. It argued, however, that the documents contained, or were likely to contain, evidence which was material to the proceeding and that there was therefore a public interest in requiring them to be produced. That public interest, the public interest in the proper administration of justice, was said to outweigh the countervailing public interest in preserving the confidentiality of Cabinet documents.

4    The issue which must be resolved, in simple terms, is whether there is a public interest in requiring the production of some or all of the documents in respect of which there is a claim of public interest immunity because they contain, or are likely to contain, relevant and material evidence, and, if so, whether that public interest outweighs the public interest in preserving the confidentiality of the Cabinet documents.

THE PROCEEDINGS

5    It is necessary first to consider briefly the nature and scope of the relevant proceedings. A short summary of the proceeding was included in an earlier judgment of the Court which dealt with claims of legal professional privilege in respect of other documents: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [11]-[23]. That summary is repeated here for convenience, with some minor variations to reflect some of the additional issues that arise on this application.

6    The proceeding arises out of the State’s privatisation of three ports in New South Wales: Port Botany; Port Kembla; and the Port of Newcastle. Each of those ports had been owned by State-owned statutory corporations or subsidiaries prior to the transactions and agreements in question.

7    The substantial majority of all shipping cargo originating from, or bound for, New South Wales passes through either Port Botany, Port Kembla or the Port of Newcastle. Port Botany is located in southern Sydney, Port Kembla is located in Wollongong, a city south of Sydney and the Port of Newcastle, as the name suggests, is located in Newcastle.

8    Port Botany is the primary port for container cargo in New South Wales. It has the only dedicated facilities with specialised infrastructure and equipment for the efficient loading and unloading of container ships and the transfer of containers within and to and from land transport. Port Kembla is primarily a bulk cargo port. It includes a large motor vehicle import hub and grain and coal export facilities. The Port of Newcastle is also primarily a bulk port and includes coal export facilities, as well as other commodities.

9    Neither Port Kembla nor the Port of Newcastle have container terminals. They are able to load and unload containers by using ships’ cranes and general wharf cranes; however, that is a significantly less efficient method of dealing with container cargo than a container terminal. Since 2001, however, the Port of Newcastle has held development approval for a container terminal and since at least 2009, the operator of that port has taken steps to pursue that development.

10    In July 2012, the State announced its intention to privatise Port Botany and Port Kembla and subsequently invited bids for the acquisition of those ports. At some point, it was recognised or considered that the potential development of the Port of Newcastle as a container terminal may negatively affect the value of the bids for Port Botany and Port Kembla. A bidder in due course requested the State to provide assurances that the development of a container terminal at the Port of Newcastle would not proceed.

11    Port Botany and Port Kembla were ultimately acquired by a consortium of companies that, as noted earlier, may conveniently be referred to as the NSW Ports parties. As part of the sale, the NSW Ports parties and the State entered into agreements referred to as the Port Commitment Deeds. Clause 3 of those deeds contained provisions which, in general terms, required the State to pay compensation to the new operators of the ports if, at any time in the next 50 years, container cargo through the Port of Newcastle exceeded a specified cap and diverted container cargo away from Port Botany or Port Kembla. Those provisions may conveniently be referred to as the compensation provisions.

12    The ACCC alleges that the compensation provisions would have, or would be likely to have, one or more of the following effects: first, the effect of substantially lessening the “competitive constraint” on the new operators of Port Botany and Port Kembla arising from their supply or potential supply of port services for container cargo by the Port of Newcastle by reason of their rights to compensation for loss of container traffic; second, the effect of causing the State to “procure” that the Port of Newcastle would not materially increase its ability or capacity to compete in the supply of port services for container cargo in New South Wales for so long as the Port of Newcastle was owned directly or indirectly by the State; and third, the effect of substantially lessening the competitive constraint on the new operators of Port Botany and Port Kembla by causing the State to impose on any acquirer of the Port of Newcastle, the privatisation of which was then in contemplation, an obligation to reimburse the State for any compensation the State was required to pay, and thereby preventing or hindering any new owner of the Port of Newcastle from developing a container terminal.

13    The ACCC alleged, on that basis, that by “making” the Port Commitment Deeds, including the compensation provisions, the NSW Ports parties contravened s 45(2)(a)(ii) of the Act, as in effect at the time the deeds were made, which prohibited the making of a contract containing a provision which has the purpose, or would have or be likely to have the effect, of substantially lessening competition. The ACCC also alleged that if the NSW Ports parties sought compensation in the future under the compensation provisions, it would contravene s 45(1)(b) of the Act, which prohibits a corporation from giving effect to a provision of a contract which has the purpose, or has or is likely to have the effect, of substantially lessening competition.

14    That was not, however, the end of the matter. As events transpired, the Port of Newcastle was privatised by the State on terms which required the acquirers to reimburse the State for any compensation the State was required to pay the new operators of Port Botany and Port Kembla under the compensation provisions of the Port Commitment Deeds. As will be seen, that gave rise to yet further controversy.

15    In June 2013, the State announced its intention to privatise the Port of Newcastle and invited bids for its acquisition. In April 2014, the State announced that it had agreed to lease the port to a consortium. The agreements that were entered into as part of that transaction included a deed, entered into by the State and the Port of Newcastle parties on 30 May 2014 (the Port of Newcastle Deed), cl 3 of which required one of the Port of Newcastle parties to reimburse the State for any payments that the State was required to make under the compensation provisions of the Port Commitment Deeds. That clause may conveniently be referred to as the reimbursement provision.

16    The ACCC alleges that the likely effect of the reimbursement provision was and is to make it uneconomical to develop a container terminal at the Port of Newcastle for the 50 year term of the compensation provisions of the Port Commitment Deeds. It therefore provided a barrier to the expansion of the supply of port services for container cargo in New South Wales. In that context, the ACCC alleges that, but for the reimbursement provision, it was likely that the new owners or operators of the Port of Newcastle would be likely to build a container terminal at the port and thereby compete with Port Botany and Port Kembla in the supply of port services for container cargo in New South Wales.

17    The NSW Ports parties deny a number of the ACCC’s key allegations, including the allegations concerning the purpose and effect, or likely effect, of the compensation provisions and the Port Commitment Deeds generally. As mentioned, they have also filed a cross-claim against the Port of Newcastle parties and the State.

18    The NSW Ports parties allege, in both their defence and their cross-claim against the Port of Newcastle parties, that if it be the case that the operators of the Port of Newcastle are unlikely to build a container terminal at the Port of Newcastle, that is the result of the reimbursement provision, not a result of the compensation provisions. Indeed, in their cross-claim, the NSW Ports parties seek both a declaration that, by making the Port of Newcastle Deed including the reimbursement provision, the Port of Newcastle parties contravened s 45(2)(a)(ii) of the Act and an order that the Port of Newcastle parties be restrained from giving effect to that provision. They also contend, in their defence, that if the Port of Newcastle parties are enjoined from giving effect to the reimbursement provision, it follows that giving effect to the compensation provisions would not have the effect of substantially lessening competition in the relevant market as alleged by the ACCC.

BACKGROUND TO THE IMMUNITY CLAIMS

19    On 1 May 2018, before the proceeding was commenced, the ACCC issued and served a notice pursuant to s 155 of the Act to Morgan Stanley. It was common ground that Morgan Stanley had been retained by the State to provide advice concerning the sale of Port Botany, Port Kembla and, in due course, the Port of Newcastle.

20    The ACCC alleged that the advice that the State sought and obtained from Morgan Stanley included advice concerning the means by which the successful bidder for Port Botany and Port Kembla could be protected from competition from any container terminal that was developed at the Port of Newcastle. The ACCC also alleged that the means by which that objective was eventually achieved was the inclusion of the compensation provisions in the Port Commitment Deeds.

21    The s 155 notice served on Morgan Stanley on 1 May 2018, and later iterations of it, required Morgan Stanley to produce certain categories of documents. It is unnecessary to consider those categories in great detail. It is sufficient to note that the categories included documents that Morgan Stanley provided to, or received from, the State which recorded the rationale for the development of the compensation provisions.

22    On 2 July 2018, Morgan Stanley advised the ACCC that it had “not provided documents responsive to the Notice over which the State has asserted a claim for … cabinet in confidence immunity”. There was some further correspondence between the ACCC and Morgan Stanley in October and November 2018 concerning the basis upon which some of the documents produced by Morgan Stanley had been redacted and the basis of the asserted claim of “cabinet in confidence immunity” by the State. It does not appear, however, that the ACCC took any active steps to test the State’s immunity claims adverted to by Morgan Stanley in its letter dated 2 July 2018 until about a year later.

23    In October 2019, the ACCC’s solicitor, the Australian Government Solicitor (AGS), requested the State to indicate whether it intended to maintain any public interest immunity claims and, if so, to provide further details of those claims. It would be fair to say that the State’s solicitors were fairly slow to respond to the AGS’s request for confirmation and particularisation of any public interest immunity claims. A substantive response was not provided by, or on behalf of, the State until early February 2020. That response identified the documents which Morgan Stanley had produced which had been redacted to reflect public interest immunity claims, but provided little or no helpful detail in relation to the immunity claims.

24    Shortly thereafter, on 28 February 2020, the trial judge, Jagot J, ordered the State, who by this time had been joined as a respondent to the proceeding, to provide discovery in accordance with certain discovery categories. Those categories included, relevantly (and in simplified terms), documents that recorded consideration by the State of the compensation provisions, any proposal by, inter alia, the State to prevent or restrict the development of a container terminal or increase the container handling capacity at the Port of Newcastle or any consideration by the State that a new container terminal, or new container handling capacity, at the Port of Newcastle would impact the value to bidders or the sale price obtained by the State for the sale of Port Botany and Port Kembla.

25    On 24 April 2020, the State filed a discovery affidavit which identified 541 documents which the State had withheld from production on the basis that the whole of each of those documents were the subject of claims of public interest immunity. The affidavit identified a further 66 documents which had been produced in redacted form on the basis of claims of public interest immunity over part of each of those documents by the State.

26    Some months later, on 11 May 2020, the AGS, on behalf of the ACCC, sought further particulars of the State’s public interest immunity claims from the State’s solicitors. The response from the State’s solicitors was, regrettably, far from helpful. They declined to provide the further information sought by the ACCC about the documents over which public interest immunity was claimed. They also identified a further 16 documents which had been withheld from production on the basis of public interest immunity claims over the whole of those documents.

27    The State’s position in relation to the public interest immunity claim became somewhat clearer when, in mid-June 2020, the State retained the New South Wales Crown Solicitor’s Office (CSO) to act for it in respect of the claims. The CSO indicated that the documents the subject of the public interest immunity claims were being reviewed and categorised.

28    Unfortunately, however, the CSO’s review of the documents the subject of the immunity claim appeared to take an inordinate amount of time. Ultimately, the ACCC was effectively required to bring the issue to a head by filing an interlocutory application which sought an order that the Court inspect and determine the validity of the State’s public interest immunity claims and that the State be required to produce or discover the documents, or parts thereof, which the Court determined were not the subject of valid public interest immunity claims.

29    The Secretary eventually intervened to press or maintain the public interest immunity claims which had first been identified by the State. The claims in respect of 459 documents were pressed by the Secretary and challenged by the ACCC.

30    The interlocutory application was unfortunately not able to be heard until close to the time of the commencement of the main proceeding.

EVIDENCE ADDUCED BY THE SECRETARY

31    The Secretary’s claim of public interest immunity was supported by affidavit evidence from Ms Kathryn Boyd, who is the General Counsel of the Department of Premier and Cabinet of the State, having held that position since April 2019. Her evidence was that, in that capacity, she had direct experience and knowledge of Cabinet and Cabinet processes. The ACCC did not seek leave to cross-examine Ms Boyd or otherwise challenge any of her evidence.

32    The ACCC did, however, observe that claims of public interest immunity, including those based on the fact that the documents said to be immune from production were Cabinet documents, are ordinarily supported by evidence from the Secretary of the relevant government Department, or at least a very senior officer of the Department. The ACCC submitted that the fact that Ms Boyd was not such a senior officer was a relevant consideration in assessing the weight that should be given to some of her evidence.

33    There is some merit in that submission. It may be accepted that Ms Boyd is a relatively senior officer of the Department and that, by virtue of her position as General Counsel, she has some direct knowledge of the Cabinet processes and procedures. Nevertheless, she has no formal role or responsibilities in respect of Cabinet meetings or deliberations. While she may attend Cabinet meetings as note-taker, the Secretary is the actual Cabinet Secretary and is the person who is formally responsible for advising the Premier, attending Cabinet meetings and recording its decisions. Ms Boyd has also only occupied her present position for a relatively short period of time. That, of course, is not a criticism of Ms Boyd. As discussed in some more detail later, however, it is a consideration that must be borne in mind when assessing the probative value and weight to be given to some of the very high level views and observations that Ms Boyd makes in her evidence about the importance of maintaining the secrecy of Cabinet documents generally. That is particularly the case in respect of her evidence as to what Ministers or other members of Cabinet may or may not do if the secrecy of Cabinet documents is not assured.

34    Ms Boyd’s evidence included some fairly general evidence concerning Cabinet processes and procedures. It is unnecessary to consider that evidence in any detail. It suffices to note that it may readily be accepted that “Cabinet processes, including Cabinet meetings, are a forum for frank and uninhibited discussion, consideration, and formulation of significant and sensitive issues of public policy and administration”. It may equally be accepted that the “proceedings of Cabinet are conducted in secret and strict confidentiality procedures apply to the handling of Cabinet documents”. Cabinet documents, in that context, include formal records of Cabinet deliberations; Cabinet submissions, which are usually prepared by a government agency for a Minister to submit to Cabinet; and documents containing advice that may be attached or annexed to such submissions. More will be said later about the classes or categories of documents that may fall within the rubric of Cabinet documents.

35    Perhaps more significantly, as adverted to earlier, Ms Boyd’s evidence included various observations and views concerning the rationale and reasons for maintaining the confidentiality of Cabinet deliberations and Cabinet documents. Without being critical of Ms Boyd, those observations and views tended to be expressed at a fairly high level of generality. For the most part, they also essentially rehearsed what has been said in the authorities concerning the rationale for this particular species of public interest immunity. Those authorities are considered later. To that extent, it may be accepted that some of Ms Boyd’s observations and views concerning the need to maintain the confidentiality of some categories of Cabinet documents are not particularly controversial. Her views and observations about some categories of Cabinet documents are, however, somewhat questionable, particularly in the broad and unqualified terms that they were expressed by Ms Boyd.

36    Ms Boyd’s evidence concerning the reasonable rationale for maintaining the secrecy of documents which record or would reveal Cabinet deliberations included the following (at [23]-[24]):

The proceedings of Cabinet are conducted in secret so that Minsters, while working towards a collective position, are able to discuss proposals and a variety of options and can express their views frankly, and with complete freedom. The decisions taken by Cabinet often involve matters of controversy and complexity. Good decision-making is facilitated by creating an environment in which Ministers are free to provide to Cabinet with all the information relevant to an issue on a frank and candid basis. The possibility of disclosure of documents revealing Cabinet’s deliberations would be likely to impede future deliberations and curb the free and vigorous exchange of views by Ministers mindful of subsequent public scrutiny.

It follows that the prospect of future disclosure of Cabinet’s deliberations could impede Cabinet deliberations by muting a free and vigorous exchange of views between members of Cabinet or by discouraging lengthy discussions entered into, all with a view to subsequent public scrutiny. This would divert Cabinet processes from their proper course and would not be in the interests of good public policy and would accordingly harm the public interest.

37    Similarly, Ms Boyd opined as follows in relation to the disclosure or possible disclosure of records disclosing the content of decisions of Cabinet and Cabinet deliberations (at [34]-[35]):

In many cases, the disclosure of a Cabinet decision would disclose, implicitly or explicitly, its deliberations. Documents known as Cabinet decisions may disclose dissenting views or disclose positions of particular Ministers, which positions were rejected by Cabinet. As such, disclosure of Cabinet decisions would undermine the principle of collective responsibility upon which the Cabinet operates.

If the records of Cabinet deliberations were liable to being disclosed in Court proceedings (or, indeed, elsewhere), it would tend to inhibit the phrasing and recording of those decisions. In some cases, decisions may be phrased and recorded in a manner calculated to be suitable for disclosure to the public. There would also be a tendency to phrase and record decisions in more circumspect and inhibited language, perhaps with statements of reason and qualification incorporated. A tendency would also arise for the phrasing and recording of decisions in less precise terms. It would be against the public interest for Cabinet decisions to be recorded imprecisely or verbosely.

38    As has already been noted, Ms Boyd’s evidence that the secrecy of Cabinet deliberations is necessary to ensure that Ministers can debate and decide questions of policy with frankness and candour reflects the rationale which has been referred to in many of the leading authorities concerning claims of public interest immunity in respect of Cabinet documents. To that extent it is relatively uncontroversial. That said, as will be discussed in more detail later, that rationale has, at times, been doubted, particularly in respect of certain categories of Cabinet documents.

39    Ms Boyd’s evidence also included her views and observations about the need to preserve the secrecy of submissions or minutes prepared by senior public servants and Ministers for the purpose of being put before Cabinet for consideration and debate. Those submissions and minutes often include or annex advice provided by government officials and, at times, external advisers or consultants. As for the need to keep such advice secret, Ms Boyd’s evidence was as follows (at [26]):

If advice or a Submission that Ministers or Cabinet receives on an issue is at risk of disclosure then this would significantly inhibit the ability of Cabinet to make decisions because either:

(a)    Ministers or Cabinet may not seek such advice or Submissions at all; or

(b)    if they did seek such advice or Submissions, they may only seek them in oral form so there is no written record of it; or

(c)    the advice or Submissions may be drafted in such a way as to minimise controversy if they are subsequently disclosed such as, for example, by excluding discussion of a controversial issue, avoiding controversial recommendations, or drafting the advice or Submission in only vague terms.

40    Similarly, Ms Boyd expressed the following view about what might occur if there was a risk of disclosure of any advice which was received by government officials or Ministers and subsequently referred to in, or annexed to, Cabinet submissions (at [28]):

Those preparing Submissions or other advice for Ministers or Cabinet are often reliant on advice and information from other persons within government and, on occasion, outside of government on issues to be discussed in the Submission. If those preparing the advice for Cabinet are unable to obtain such advice and information without fear that such advice and views could be publicly disclosed then they may seek it in more limited terms. Further, those providing their advice or views may feel inhibited in the information they place in the document which may affect the way in which other information is presented. This would be contrary to the public interest to the extent that it would detract from the quality of the advice being provided to Cabinet, and the quality of its decisions.

41    The observations and views expressed by Ms Boyd in relation to the harmful effect that disclosure, or the risk of disclosure, of advice provided to government officials or Ministers who prepared Cabinet submissions and minutes would have on the functioning of government also apparently applied to external advisors. In that regard, Ms Boyd’s evidence was (at [47]-[48]):

Some of the documents are copies of reports or documents which disclose the contents of reports prepared at the request of the Treasurer, as the Minister responsible for the implementation of the leases of Port Kembla, Port Botany and the Port of Newcastle, solely for the purpose of providing legal, financial or governance advice to the Treasurer on matters intended to be brought before Cabinet, so as to enable the Treasurer to provide advice to Cabinet regarding the feasibility of the transactions and to determine related policy issues.

While some of those reports or documents were prepared by various NSW government agencies, some were prepared by external consultants engaged on behalf of NSW Treasury, and include Morgan Stanley, MinterEllison, PriceWaterhouseCoopers, GHD and ERM. Cabinet will often formulate public policy that has a nexus with commercial transactions. It is imperative that Cabinet have the ability to obtain the advice of external consultants with the expectation that the reports or documents prepared by them will be treated with the same degree of confidentiality as those prepared by internal advisors to the government.

42    It is, with respect, somewhat questionable that Ms Boyd was truly in any sort of position which enabled or permitted her to opine as to what Ministers, or their advisors, in particular external advisors, might or might not do if they were not assured or confident that their advice would be kept secret. The weight that can or should be given to Ms Boyd’s views in that regard is discussed in more detail later. It suffices to note at this juncture that some of the general views or propositions advanced by Ms Boyd are open to question and certainly should not be unfailingly or uncritically accepted as applying to all advice that might be sought and received by Minister’s or bureaucrats for the purpose of Cabinet meetings or decisions.

43    Ms Boyd identified 459 documents which were the subject of the Secretary’s claim of public interest immunity. The documents that were the subject of the claim were classified in accordance with 12 broad categories:

(1)    Formal records of confidential deliberations of Cabinet, including drafts thereof (Category A). That category included, for example, formal records of Cabinet meetings.

(2)    “Informal” records of Cabinet deliberations, including drafts thereof (Category B). That category included emails and other documentary communications that recorded what was said during Cabinet meetings.

(3)    Cabinet submissions and minutes submitted by a Minister to Cabinet (Category C).

(4)    Annexures and attachments to Cabinet submissions and minutes (Category D).

(5)    Drafts of Cabinet submissions and minutes (Category F).

(6)    Drafts of annexures and attachments to Cabinet submissions and minutes (Category G).

(7)    Drafts of speaking notes prepared for Ministers for the purpose of Cabinet meetings (Category H).

(8)    Documents that disclose the contents of documents otherwise within categories C and F; that is, submissions to Cabinet and drafts thereof (Category I).

(9)    Documents such as emails that disclosed the content of the annexures and attachments to Cabinet submissions and minutes and drafts of such documents (Category J).

(10)    Documents prepared and submitted to a Minister, Departmental Secretary or senior Departmental officer for the purpose of a briefing concerning the content of records of Cabinet meetings, Cabinet submissions, minutes and annexures or attachments thereto, or speaking notes prepared for Ministers, or other matters to be (or expected to be) discussed in Cabinet (Category L).

(11)    Drafts of documents within Category L (Category M).

(12)    Documents such as emails that disclosed the contents of documents within categories L and M (Category N).

44    The documents within those 12 categories were also further categorised having regard to whether the content of the documents dealt with matters of public policy as opposed to commercial transactions or proposed or contemplated commercial transactions. More will be said later in these reasons about the significance of the distinction between Cabinet documents that record or disclose deliberations concerning policy issues and those that record or disclose advice or issues relating to purely commercial or contractual issues. At this point, however, it suffices to note that the subcategories that were allocated to the documents were not particularly helpful and upon inspection of the documents it became apparent that in many cases the subcategories were neither accurate nor reliable.

45    A detailed table which set out the general descriptions of the 459 documents that are the subject of the Secretary’s public interest immunity claims was prepared by a CSO solicitor. Ms Boyd’s evidence concerning the categorisation and subcategorisation of the documents was based on what she had been told by that solicitor. Ms Boyd did, however, state that she had reviewed the documents the subject of the public interest immunity claims, and was “satisfied that their disclosure would prejudice the proper functioning of the government of the State”. More will be said later about the contents and helpfulness of that table, and the subsequent further version provided to the Court.

46    It should be emphasised at this point that the Secretary acknowledged that the public interest immunity claims were “class” claims as opposed to “contents” claims. The Secretary’s claim is not that the disclosure of the specific content of any of the documents would prejudice the proper functioning of the government of the State. Rather, the Secretary’s claim, in short, is that because the documents fall within a particular class of documents, namely Cabinet documents, the disclosure of the documents would prejudice the proper functioning of government because the threat of similar disclosures in the future would stifle or hinder discussion or debate at future Cabinet meetings and would inhibit or constrain the provision of advice to Ministers in the context of future Cabinet meetings.

47    The fact that the Secretary’s claim is a class, as opposed to contents, claim, was further demonstrated or exemplified by the Secretary’s important concession that the subject matter of the documents was no longer current or controversial. The main subject matter of the Cabinet documents was plainly the privatisation of Port Botany, Port Kembla and the Port of Newcastle or, more particularly, the transactions by which the privatisations were to be effected. The privatisation of those ports was finalised many years ago. It is, at best, unclear whether the sale of the ports or any aspect of the transactions by which the sales were effected was controversial at the time. Even if there was any controversy at the time, there is clearly no longer any such controversy. The Secretary does not contend that the disclosure of any particular information in any of the relevant documents would be harmful or would cause any prejudice to the government of the State.

48    The significance of the fact that the content and subject matter of the relevant Cabinet documents is no longer current or controversial is discussed in more detail later in these reasons.

RELEVANT PRINCIPLES

49    The legal principles concerning public interest immunity which are applicable in determining the Secretary’s claims in this matter were not significantly in dispute. It is accordingly unnecessary, for present purposes, to discuss the relevant principles in great detail. Following is a short summary.

50    A valid and successful claim of public interest immunity renders documents immune from production, and information immune from disclosure, on the basis that production or disclosure, as the case may be, would be contrary to the public interest.

51    Public interest immunity is a doctrine of substantive law, not a rule of evidence or procedure. A public interest immunity claim which is made so as to resist the production of documents which would otherwise need to be produced, either pursuant to a notice under s 155 of the Act, or pursuant to a discovery order, falls to be determined under the common law, rather than s 130 of the Evidence Act 1995 (Cth).

52    There are a number of heads or categories of public interest immunity. The one relevant to this matter is the one which serves to protect the public interest in the proper functioning of government and, more specifically, the public interest in maintaining the confidentiality of the deliberations of Cabinet in support of the collective responsibility of Cabinet government: Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615; State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [45].

53    Documents may be immune from production on the basis that their status as Cabinet documents means that their disclosure may be harmful to the public interest in the proper functioning of government. Cabinet documents, in this context, include (in general terms): Cabinet minutes and other documents that record the deliberations and decisions of Cabinet; documents submitted and considered by Cabinet; documents brought into existence for the purpose of preparing a submission to Cabinet; and documents and communications passing between high-level government officials relating to Cabinet proceedings: Northern Land Council at 616-618; Spencer v The Commonwealth (2012) 206 FCR 309 at [42]-[43]; Ticketing Corporation at [50].

54    The conventional rationale or reason given for the need to protect Cabinet documents from disclosure is that an assurance that such documents will be kept confidential is seen as necessary to ensure that communications between Ministers at Cabinet meetings can be frank and candid and that decision-making and policy development by Cabinet is uninhibited: Sankey v Whitlam (1978) 142 CLR 1 at 40; Northern Land Council at 615-616. It has been said that the threat of disclosure of such documents “may impede or mute free and vigorous exchange in Cabinet”: Ticketing Corporation at [45]. The theory is that if Ministers believe that there is a risk that what they say or discuss at Cabinet meetings may later become public, they will not talk freely or frankly.

55    As has already been noted, Ms Boyd’s evidence traversed the conventional reasons given for the need for Cabinet documents to remain confidential. The Court must give appropriate weight and “proper respect” to the evidence of Ministers or senior government officials in respect of the damage that may be caused by production of Cabinet documents: Sankey at 43-44; Gaudioso v Roads and Maritime Services (No 2) [2020] NSWLEC 51 at [23].

56    The different types or categories of documents that may be described as Cabinet documents are not all entitled to the same measure of protection from disclosure: Sankey at 43; Northern Land Council at 616-617; Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1 at [89]. The strength of the public interest in maintaining the confidentiality of some categories of Cabinet documents is stronger than others.

57    Documents that record Cabinet decisions and deliberations, particularly in respect of issues that remain current and controversial, generally attract the highest degree of protection: Northern Land Council at 618. It is only “in a case where there are quite exceptional circumstances which 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 will be necessary or appropriate to order production of the documents to the court”: Northern Land Council at 619.

58    Documents that record the matters put to Cabinet for discussion, such as minutes or submissions for the consideration of Cabinet, have been held to be in the same position as records of the deliberations or decisions of Cabinet, at least where the minutes or submissions tend to reveal the nature of the matters considered by Cabinet, the Cabinet’s deliberations, the position taken by a Minister or Ministers and the arguments that they advanced on the topic: Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at [42]-[44] (CFMEU); see also Ticketing Corporation at [50].

59    Cabinet documents which deal with government policy are likely to attract a greater degree of protection than Cabinet documents which consider or address contractual arrangements and commercial undertakings in which the executive branch of government has participated. In Ticketing Corporation, Allsop P (as his Honour then was, with whom Hodgson JA and Sackville AJA agreed) said the following in the context of a public interest immunity claim in respect of Cabinet documents, some of which dealt with commercial or contractual considerations rather than government policy (at [55]):

… whilst not a hard and fast consideration, the commercial character of a contract as the subject matter of the document is an important consideration in the balancing exercise. In particular, consideration of a specific contractual dispute or of particular facts relevant to that dispute may require a different approach than consideration of whether a government should become involved in the proposed project. In this respect, an important consideration in the due administration of justice is the denial of any possible perception that the government is in a privileged position in how it litigates its commercial rights and entitlements against citizens, in the absence of demonstration of a proper basis of interest of a character that attracts the immunity. There are many circumstances where policy has got nothing to do with a decision by government as to a step in a commercial arrangement or dispute. There are other circumstances where commercial decision-making and policy can intersect.

60    Allsop P noted that “policy” in this context is a “broad concept”: Ticketing Corporation at [53]. In some cases, it may be difficult to discern or determine whether the content or subject matter of a document concerns matters of policy as opposed to purely commercial or contractual issues or considerations. The choice is not always binary. Plainly Cabinet deliberations concerning some commercial or contractual issues would also involve some policy considerations.

61    Allsop P also expressed the view (at [56]) that the notion that candour by public officials would be discouraged should disclosure of their communications be possible was a matter which would usually be given little weight where the subject matter concerned the “factual and legal aspects of a commercial dispute involving the State”. His Honour made the following observations in that regard (at [56]):

The candour of those reporting to Ministers and Cabinet about the factual and legal state of a contractual or commercial dispute and the available course of action is hardly likely to be undermined if, in due course, when the dispute becomes litigious, the advice is disclosed in litigation about the contract or commercial transaction.

62    Similar observations were made by Basten JA in Ku-ring-gai Council (at [91]) in respect of the notion that the frankness and candour with which external advisors to government may express their advice may be compromised by the threat or possibility that their communications may subsequently be disclosed. Indeed, his Honour suggested that such a claim “borders on the fanciful”. The external advisor in that matter was a large commercial enterprise external to government, not unlike Morgan Stanley in this case.

63    The protection which Cabinet documents as a class enjoy is not absolute and does not endure forever: Sankey at 40-41. The claim of public interest immunity from disclosure of Cabinet documents must be “weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence”: Northern Land Council at 616.

64    The relevant balancing exercise involves considering the “two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld” and deciding “which of those aspects predominates”: Alister v The Queen (1984) 154 CLR 404 at 412.

65    The balancing exercise is the “final step” in the “process” and can only be taken when it appears that both aspects of the public interest require consideration; that is, “on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence”: Alister at 412; see also Burmah Oil Co Ltd v Governor and Co of the Bank of England [1980] AC 1090 at 1113.

66    The factors or considerations which may be relevant to the balancing exercise include: the character of the subject matter of the documents, including whether they deal with matters of policy or matters relating to commercial or contractual issues; whether the subject matter of the documents is current or controversial; the nature of the court proceedings in question; and the materiality or forensic relevance of the documents to the court proceedings in question: Ticketing Corporation at [52], [69]; Spencer at [32].

67    It is not always necessary for the court to inspect the documents which are the subject of a claim for public interest immunity in order to determine the claim and the court should not do so as a matter of course: Northern Land Council at 617.

68    Inspection may not be required where the claim of public interest immunity is a “class” claim based on the status of the documents as Cabinet documents and there is no apparent countervailing public interest in the proper administration of justice: Northern Land Council at 617; Spencer at [33]. Even in such a case, however, the court may inspect the documents to determine whether they “in truth” fall within that class: Northern Land Council at 617.

69    Otherwise, inspection will generally only be necessary or appropriate where it is apparent that the documents are or may be relevant and significant to the court proceedings in question. In those circumstances, inspection would be appropriate to “test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity”: Spencer at [33]; see also Northern Land Council at 619; Ticketing Corporation at [65].

THE PUBLIC INTEREST AGAINST PRODUCTION

70    The ACCC conceded that all of the 459 documents over which public interest immunity was claimed appeared to fall within the broad class of “Cabinet documents”. There is, therefore, at least a prima facie case that disclosure of the documents would be contrary to the public interest in the proper functioning of government.

71    Weight must also be given to the evidence of Ms Boyd, including her views about the adverse effect that disclosure of the documents may have on future Cabinet discussions and deliberations and the frank provision of advice to Cabinet. As adverted to earlier, however, there are some aspects of Ms Boyd’s evidence which tend to reduce the weight that should be given to her views in that regard.

72    First, while it may be accepted that Ms Boyd is a relatively senior public servant, she is not the Departmental head. The relevant Department head here was the Secretary, who also happened to be the Cabinet Secretary. No explanation was given for why evidence was not adduced from the Secretary himself, which would perhaps be expected given that the claims of public interest immunity were based on the serious and far-reaching contention that disclosure of the documents would prejudice the proper functioning of the government of the State. Claims of public interest immunity based on such contentions are generally supported by a Departmental head, or at least a very senior public servant. It may be accepted that Ms Boyd has adduced evidence in support of public interest immunity claims in the past (see, for example, Gaudioso at [23]); however, that does not necessarily demonstrate her suitability to give evidence in this case. Each case must be considered on its own facts.

73    Second, and more significantly, while Ms Boyd stated that she had “reviewed the PII [public interest immunity] documents”, the extent to which she gave any detailed consideration to the precise nature, content or subject matter of the document is unclear and somewhat questionable. It is tolerably clear that she was not directly involved in the classification or categorisation of the documents and that her evidence in that regard was based on information and belief. Nor was Ms Boyd directly involved in the preparation of the tables which identified and categorised the documents. That is perhaps not surprising and Ms Boyd is not to be criticised for not having been directly involved in that level of detail. There is, however, nothing in Ms Boyd’s affidavit to suggest that she gave close and detailed attention to any of the individual documents in question. The weight that can or should be given to an affidavit containing an assertion that disclosure of documents would be contrary to the public interest may be reduced where the deponent has not seen the relevant documents, even where the assertion is based on the documents belonging to a particular class: Sankey at 44. While Ms Boyd may have seen the documents, the weight to be given to her evidence must be reduced because there is nothing to suggest that her review of them was anything but fairly cursory.

74    Third, and related to the second point, Ms Boyd’s relative lack of attention to the nature, content and subject matter of the documents the subject of the claim is demonstrated by three other aspects of her evidence.

75    The first of those aspects is that nowhere in her affidavit does Ms Boyd acknowledge or admit to the fact that the subject matter of the documents was no longer current or controversial. That important fact was ultimately conceded by the Secretary, but was not adverted to by Ms Boyd. Plainly the fact that the subject matter of the documents was no longer current or controversial was an important factor in assessing the strength of the public interest against disclosure, yet it was apparently not a factor which Ms Boyd considered in forming her views about the damage that disclosure of the documents would have on the proper functioning of the government of the State.

76    The second aspect of Ms Boyd’s evidence that should be noted in this context is that nowhere in her evidence does she acknowledge or advert to the fact that the content or subject matter of some, if not most, of the relevant documents was not really government policy, but was instead commercial or contractual issues or considerations. That is perhaps most apparent in the case of some of the documents authored by Morgan Stanley. The fact that at least some of the documents did not concern government policy was no doubt relevant to a consideration of the strength of the public interest against disclosure, yet again this was again not a consideration adverted to by Ms Boyd.

77    The third aspect of Ms Boyd’s evidence that suggested that she may not have given close attention to the documents is that, as discussed in more detail later, it became increasingly apparent during the course of the Court’s inspection of the documents that the categories and subcategories assigned to the documents in many cases were not accurate or fair characterisations of the documents in question. The table annexed to Ms Boyd’s affidavit which purported to describe the documents was also in parts not entirely accurate. More will be said about that later in the context of some specific documents. It suffices at this point to note that the inaccuracy of the descriptions and categorisation of some of the documents again tended to cast doubt on the extent to which Ms Boyd gave considered attention to the documents. That in turn reduces the weight which should be given to her evidence, in particular her views as to the damage that disclosure would cause.

78    Fourth, without being too critical of Ms Boyd, her evidence concerning the harm or prejudice that would result from disclosure of the documents tended to be expressed in very broad, general and formulaic terms. It did not really engage with the particular documents, or classes of documents, in issue in this matter. Some of the views expressed by her were also somewhat tenuous or questionable. The clearest example of that is Ms Boyd’s evidence that advice provided to Cabinet, including advice provided by external consultants, such as Morgan Stanley, may, if confidentiality could not be assured, be drafted in such a way as to “minimise controversy”; or might “exclude[e] discussion of a controversial issue”; or avoid “controversial recommendations”; or be expressed in only “vague terms”. With the greatest respect to Ms Boyd, it is difficult to imagine that a major international advisory or consultancy firm such as Morgan Stanley would approach the provision of advice to the State about major financial transactions in such a way simply because it could not be assured that the State might not disclose, or be compelled to disclose, its advice at some time in the future. As noted earlier, similar assertions were described by Basten JA in Ku-ring-gai Council as bordering on the fanciful.

79    It may be accepted that the general views expressed by Ms Boyd broadly reflected the reasons or rationales that have conventionally been given for protecting Cabinet documents from disclosure. With respect to Ms Boyd, however, she appears to have expressed those conventional views in relation to the specific documents in this case simply on the basis that they may broadly be characterised as Cabinet documents and without giving any real consideration or attention to the particular nature, subject matter and qualities of the actual documents in question. The Secretary’s public interest immunity claim was, of course, a “class”, rather than a “contents”, claim. It does not follow, however, that careful attention to the particular nature and subject matter of the documents in question was not required.

80    Accepting that the documents in question are prima facie properly the subject of a “class” claim of public interest immunity, there are a number of factors or matters that must be addressed and considered in assessing the strength of the public interest in protecting the documents the subject of the claim from disclosure. A number of those matters have already been touched on.

81    The first matter to note in that regard is that, while the documents as a whole may be classed generally as Cabinet documents, the strength of the public interest against disclosure of particular documents will undoubtedly vary depending on the particular category of Cabinet documents to which they belong. There could, for example, be little doubt that the public interest in preserving the confidentiality of the documents which comprised formal records of Cabinet decisions or deliberations was likely to be significantly greater than the public interest in preserving the confidentiality of documents that may simply have been obtained or used for the purpose of providing advice to Cabinet, including documents prepared by external advisers or consultants. That is particularly the case in respect of the documents containing advice which could not itself be said to disclose any Cabinet deliberations or decisions.

82    The second matter to note is that, as already adverted to, the public interest in preserving the confidentiality of the class of documents as a whole is reduced, perhaps significantly, by the fact that the subject matter of the documents was considered to be no longer current or controversial. The State’s privatisation of the relevant ports was completed over six years ago. Even if those transactions may have been controversial at the time, and there is not even any evidence of that fact, the Secretary in any event now concedes that they are no longer controversial. The only controversy that exists in relation to the transactions is the controversy which is the subject of the proceeding commenced by the ACCC. That is another matter entirely.

83    The third matter to note is that the public interest against disclosure of particular documents is likely to vary depending on the extent to which the documents record or disclose the Cabinet’s consideration of government policy, as opposed to specific commercial or contractual objectives or considerations. The considerations that apply to the disclosure of documents which, for example, disclose Cabinet deliberations about whether the State should, as a matter of policy, privatise the relevant ports are likely to be significantly different to the considerations that would apply to the disclosure of documents which simply disclose Cabinet’s consideration of advice provided in respect of commercial or contractual aspects of the transactions by which the privatisations were to be effected. In the case of the latter type of document, it is difficult to see why the State should be treated differently to a private entity when it comes to disclosure of documents that address commercial or contractual aspects of particular transactions to which the State was a party, simply because those documents were submitted to, or used for the purposes of advising, Cabinet: cf Ticketing Corporation at [56].

84    The fourth matter to note is that, having regard to each of the previous three points, and the general deficiencies in the evidence relied on by the Secretary in support his public interest immunity claim which were discussed earlier, there is a fairly clear warrant for the Court to inspect the documents the subject of the claim to assess the strength of any public interest against disclosure. As will be seen, the need to inspect the documents is fortified by the apparent relevance and materiality of at least some of the documents to the substantive proceeding and the resulting public interest in favour of disclosure.

THE PUBLIC INTEREST IN FAVOUR OF PRODUCTION

85    There could be little doubt that the ACCC has a legitimate forensic purpose in having the documents the subject of the public interest immunity claim produced for the purposes of the proceeding it has commenced in this Court. The trial judge made orders for discovery that, but for the public interest immunity claim, would require the State to produce the documents in question. It may be inferred that the State either did not dispute that the categories of documents included in the discovery orders were relevant to the proceeding or, if it did object to those categories, the trial judge overruled that objection. It may be inferred, therefore, that documents falling within the discovery categories are likely, in a broad sense, to be relevant to the proceeding.

86    There is also a sound basis for inferring that many of the documents which are the subject of the public interest immunity claim are likely to be material, in some cases perhaps significantly material to the issues in the proceeding. The general nature of the proceeding and the issues that are likely to arise in it were discussed earlier. The critical issues in the proceeding are likely to revolve around the purpose and effect of the so-called compensation provisions in the Port Commitment Deeds. Some of the discovery categories specifically call for the production of documents that record or evidence the consideration given by the State, or those that advised it, to the compensation provisions. It is therefore open to infer that at least some of the documents over which public interest immunity has been claimed may provide material evidence of the State’s consideration of the purpose and effect of the compensation provisions.

87    In those circumstances, there is sufficient evidence to demonstrate that there is at least an arguable or prima facie case of the existence of a countervailing public interest in favour of requiring the production of the documents in question, being the public interest in the proper administration of justice. There is plainly a public interest in ensuring that documents that are, or may be, material to the dispute the subject of the proceeding be available for tender. That is all the more so given that the proceeding is not a mere civil dispute concerning the private rights of private citizens. Rather, it is a civil proceeding commenced by a public regulator to enforce an important statutory standard or norm. There are clear indications that at least some of the documents in question may be relevant or material to that proceeding.

INSPECTION AND BALANCING THE COMPETING PUBLIC INTEReSTS

88    Two things follow from the fact that it has been found that there is both a public interest against disclosing the documents because they are Cabinet documents, and a likely public interest in favour of disclosing the documents because they are likely to be relevant and material to the issues in the proceeding commenced by the ACCC.

89    First, it is necessary for the Court to conduct a balancing exercise to determine the public interest immunity claims. The issue, in simple terms, is which of the competing public interests prevails in respect of the documents the subject of the claims.

90    Second, it is appropriate, if not necessary, for the Court to inspect the document in question, in particular so as to test or ascertain whether the significance of the documents to the proceeding justifies disclosure having regard to the strength of the claims for immunity.

91    Before describing the results of the Court’s inspection of the relevant documents and embarking on the balancing exercise, it is desirable to make a number of preliminary or general observations.

92    First, the Court’s inspection of the relevant documents has not involved a close or parsing analysis of all of the content of the documents in question. That has not been possible due to time constraints, particularly those time constraints arising from the fact that the relative largess of the parties in respect of the claims meant that this application was not able to be heard until shortly before the commencement of the substantive trial. The documents are also voluminous, lengthy and in some cases complex and dense. In hard copy form they occupy 38 lever arch folders. In any event, it is doubtful that the outcome of an application such as this should depend on a detailed and parsing analysis of the documents in question.

93    Second, the inspection of the documents was hampered by the fact that Ms Boyd’s evidence addressed the general nature of the documents in a very broad or global manner. While the table annexed to Ms Boyd’s evidence and the aide memoire that was subsequently prepared by the Secretary’s legal advisers gave a very brief and general description of each of the documents over which public interest immunity was claimed, those descriptions were not always accurate or helpful. By way of example, documents 139 and 142 in the table were described as “Draft Cabinet Minute”. However, both documents were, in fact, a submission or request from Newcastle Port Corporation to the NSW Government concerning the proposed container terminate at the Port of Newcastle. The title page of the document may have contained the words “draft cabinet minute”, however even a cursory glance of the document would have revealed those words to be no more than a canard.

94    To make matters worse, as discussed earlier in the context of Ms Boyd’s evidence, the categories and subcategories of documents adopted by Ms Boyd turned out, on inspection, to be inaccurate in a number of instances and not always an entirely reliable characterisation of the documents in question. It was also somewhat unhelpful that the table and aide memoire did not identify the annexures to many of the documents, in particular the annexures to the Cabinet decisions and Cabinet minutes. That caused particular difficulties given that, as is noted next, most of the documents that were annexed to the Cabinet decisions or minutes were reproduced, often many times and in different guises, both as annexures to other documents or as stand-alone documents.

95    Third, and relatedly, there was a good deal of duplication in the documentation. There were in many cases multiple copies or versions of documents, sometimes in the form of annexures to other documents and sometimes because the material includes drafts or different versions of the same document. Given the volume of the documentation and aforementioned constraints, the Court was effectively required to rely to a considerable extent on the aide memoire prepared by the Secretary in determining where particular documents were duplicated elsewhere. Separate consideration has generally not been given to duplicates or different versions of the same document. Where the result of the balancing exercise is a finding that a particular version of a document should be disclosed, the result in most cases is that other copies of versions of that document should also be disclosed, even though that may not be specifically reflected in the orders.

96    Fourth, the general exception to the production of duplicates of documents is where copies or versions of a particular document are incorporated in or annexed to a Cabinet decision or submission and freestanding versions of the document – that is, versions not incorporated in a Cabinet decision or submission – are found elsewhere in the material. In such cases, where it has been determined that the mere fact that the document had apparently been prepared for the purposes of submission to Cabinet, or had been submitted to Cabinet, was not sufficient to tip the balance in favour of non-disclosure, it has generally been determined that the freestanding version of the document should be disclosed. In most, if not all, cases, however, it has nonetheless been determined that the version of the documents that was incorporated in or annexed to the Cabinet minute should not be disclosed. That is essentially because that version of the document has been considered to be part of the Cabinet minute or decision in question.

97    Fifth, both the inspection and balancing exercises have been complicated by the fact that, perhaps for good reason, those exercises have not been conducted by the trial judge in the substantive proceeding. While the evidence adduced by the ACCC in support of this application provided a general description of the issues in the substantive proceeding, there could be little doubt that the issues are likely to be considerably more complex and nuanced than that general description. Similarly, while the ACCC’s evidence adduced in support of this application gave a very brief and general description of some of the documentary evidence which was said to support the ACCC’s case, there could be little doubt that the evidence in the substantive proceeding is likely to be considerably greater and more complex than that short summary. The result is that the materiality and probative value of the documents the subject of the public interest immunity claim must be considered and assessed in less than ideal circumstances and without a full and thorough appreciation of the issues and evidence in the substantive proceeding.

98    Sixth, as adverted to, the Secretary provided an aide memoire before the commencement of the hearing; in brief, a table containing a (very) short description of each document the subject of this application. Counsel for the Secretary described the aide memoire as “the most up to date version”. The aide memoire, as mentioned, was particularly helpful in one respect; it adopted a clear shading system to highlight which documents were duplicates or similar versions of documents previously detailed in the table. Regrettably, however, the aide memoire suffered from various deficiencies and drawbacks that complicated the review required to be undertaken. In addition to the issues already mentioned, the aide memoire was unhelpful in a number of respects.

99    One issue was that the aide memoire was provided in mark-up or with “track changes” showing. No explanation was given as to the changes that had occurred from Ms Boyd’s initial, annexed table and the version of the aide memoire eventually provided to the Court. For instance, a new document had been inserted – document 97a – while other documents had been deleted. Perhaps more significantly, for the overwhelming majority of the documents, the relevant author was not identified, the descriptions provided were far from illuminating and the date given was often incorrect. At the hearing, counsel for the Secretary noted that some of these errors were the product of the document management system, Ringtail, that had been utilised by the CSO in compiling the aide memoire. Counsel noted, in that context, that the Court could not really rely on some of the dates in the table and would have to rely on the date on the face of the document. That was, with respect, hardly a satisfactory state of affairs. It also cast doubt on the reliability of the aide memoire generally.

100    Finally, and at risk of appearing carping, counsel for the Secretary suggested that, in the event that it was found necessary to look at the documents, the Court would be comforted by the fact that there were “fewer documents than at first appears” and that it had not taken counsel a “huge amount of time to go through the documents”. Needless to say, when it came to actually inspect and consider the documents, the Court’s experience differed markedly from counsel’s experience. While numerous words could be employed to describe that experience, “comfort” and “comforted” are not among them.

101    Notwithstanding the deficiencies in the material provided to the Court, it is convenient to address the inspection and balancing exercises by reference to the various categories of the Cabinet documents adopted by Ms Boyd. That is despite the fact that those categories were found to not always be accurate. The documents numbers which are used in the following analysis are the document tab numbers in the aide memoire prepared and relied on by the Secretary.

Category A – Cabinet decisions and minutes

102    Documents 1-9 are all formal records of Cabinet decisions or formal minutes of Cabinet meetings made or held between June 2012 and November 2013.

103    In accordance with the authorities discussed earlier, such formal records of Cabinet decisions or meetings would ordinarily be afforded the highest level of protection.

104    The following points may, however, be made about these particular documents.

105    First, the subject matter and content of these particular decisions and minutes is neither current nor controversial. So much so was conceded by the Secretary. It is, in any event, obvious from the documents themselves. The subject matter of the decisions and minutes was in each case, the sale (long-term lease) of Port Botany, Port Kembla and the Port of Newcastle, though only one of the decisions related to the Port of Newcastle. The fact that the subject matter of these documents is neither current nor controversial significantly reduces the level of protection that would otherwise be given to these documents.

106    Second, it could not really be said that the documents record or disclose Cabinet deliberations or discussions other than in a very general sense. The decisions and minutes in question generally do not record who was present at the meetings and do not record the contributions by individual Ministers or officials. For the most part, they simply list a number of matters that were noted, recommended, delegated or approved. There does not appear to have been any real discussion, let alone debate or dissent in relation to the matters noted and approved. The documents also summarise certain external advice that had been provided to the State, though there again does not appear to have been any discussion, debate or dissent concerning that advice. It is difficult to see how the disclosure of these types of documents could seriously be said to be likely to stifle discussion or debate at future Cabinet meetings.

107    Third, it also could not really be said that the documents record or discuss matters of government policy. The issues considered in the documents relate not so much to whether the relevant ports should be privatised as a matter of government policy, a matter about which the Government by this stage had publicly made its position abundantly clear, but rather about whether particular aspects or details of the transactions should be approved having regard to the recommendations of the external advisers. While policy is a broad concept and some of the commercial, contractual or transactional issues considered in the documents may involve elements of government policy, the predominant focus of the issues addressed in the Cabinet decisions and minutes was certainly not pure policy.

108    Fourth, the minutes and decisions annex some documents, including the executive summary of scoping reports by Morgan Stanley. The question whether stand-alone copies of the final version of the complete Morgan Stanley scoping report should be disclosed is dealt with separately. The executive summary attached to the Cabinet decisions and minutes is, for present purposes, considered to be part of the decisions and minutes.

109    Fifth, while the records and minutes of the Cabinet decisions and meetings contain some material that could very broadly be said to be relevant to the issues likely to arise in the substantive proceeding, they could not be said to comprise or contain material, let alone crucial or important, evidence that might be tendered, or available for tender, in that proceeding. This was a critical consideration in the balancing exercise.

110    When the competing public interests for and against disclosure of these documents are weighed, the balance tips, albeit just, in favour of non-disclosure. Had it been assessed that the documents contained important evidence, the balance would most likely have tipped the other way.

Category B – Informal records of Cabinet deliberations

111    Documents 10-14 comprise multiple copies of emails which refer to “action items” from a Cabinet meeting. The public interest immunity claim is only in respect of the parts of the emails that refer to those action items.

112    It is unnecessary to consider these emails in detail. It suffices to note that they do not contain anything that could be said to constitute or contain material or important evidence for the substantive proceeding. While the public interest against disclosure is not particularly strong, nor is the public interest in favour of disclosure. The balance tips against disclosure because the documents tend to disclose a decision taken by Cabinet, albeit one that is no longer current or controversial or particularly significant.

Category C – Cabinet submissions and minutes

113    Documents 2-6, 8-9 and 15-23 are Cabinet minutes or briefs, or extracts of Cabinet minutes or briefs, prepared by a Minister for the purpose of briefing Cabinet.

114    In accordance with the authorities discussed earlier, minutes or submissions of this sort would ordinarily be afforded a high level of protection, effectively on par with records of Cabinet meetings and decisions.

115    The following points may, however, be made about these particular documents.

116    First, save for perhaps one of the documents (a Cabinet brief dated 5 June 2019, although this date does not appear on the document’s face, being documents 16-21), the subject matter and content of these particular minutes or briefs is neither current nor controversial. These significantly reduces the level of protection that would otherwise be given to these documents.

117    Second, while the minutes and briefs identify the position taken by the Minister who prepared them, that position appears to have been far from controversial or contentious. Indeed, for the most part, it amounted to little more than a summary of some external advice that the State had received and a recommendation that the recommendations made by the external adviser be adopted or followed.

118    Third, it also could not really be said that the documents record or discuss matters of government policy. The focus is predominantly commercial, contractual or transactional issues.

119    Fourth, some of the documents contain attachments, including an executive summary of a Morgan Stanley scoping report. The attachments are treated as part of the minute or submission for the purpose of this exercise. The question whether the stand-alone final version of the Morgan Stanley scoping report should be produced is dealt with separately.

120    Fifth, while the submissions and briefs contain some material that could very broadly be said to be relevant to the issues likely to arise in the substantive proceeding, they could not be said to comprise or contain material, let alone crucial or important, evidence that might be tendered, or available for tender, in that proceeding. This again was a critical consideration in the balancing exercise.

121    When the competing public interests for and against disclosure of these documents are weighed, the balance tips, albeit just, in favour of non-disclosure. Had it been assessed that the documents contained important evidence, the balance would most likely have tipped the other way.

Category D – Annexures and attachments to Cabinet submissions and minutes

122    Documents 2-5, 8-9, 15, 24-28, 31, 34-44, 47-49, 51-54, 56-60, 61-78, 83-106 (including 97a) are said to be annexures and attachments to Cabinet submissions and minutes.

123    The following points may be made concerning these documents.

124    First, almost all of these documents are reports, or interim versions of reports, or extracts from or copies of reports, prepared by large external advisory or consultancy firms, including Morgan Stanley, PricewaterhouseCoopers (PwC), Environmental Resources Management Australia (ERM), GHD and Minter Ellison. Without going into any detail in relation to the contents of these reports, each of them dealt with various commercial, technical or legal aspects of the State’s proposed privatisation of Port Botany, Port Kembla and the Port of Newcastle. The “client” of these firms was said to be New South Wales Treasury. The project in relation to this transaction was at times referred to as “Project Pembroke”.

125    Second, save for the fact that some of the reports are marked “Cabinet-in-Confidence”, for the most part there is nothing in the reports themselves to suggest that they were prepared for the purpose of being provided to Cabinet or that they were at any point annexed or attached to Cabinet minutes or submissions. The client of the authors of the reports was New South Wales Treasury and the reports contain recommendations to “Government”, but that does not necessarily mean that the reports were specifically prepared for the purpose of being put before or considered by Cabinet.

126    The Secretary’s case that these reports were prepared for the purpose of being provided to Cabinet and were at some point annexed or attached to Cabinet submissions or minutes was based entirely on a short global assertion to that effect made by Ms Boyd. Her evidence was that the documents within category D were “prepared for the express purpose of informing Cabinet” and “became attachments or annexures to Cabinet Submissions and Minutes”. That statement was not challenged by the ACCC, though the weight to be given to it is another matter, particularly given the earlier observations made about Ms Boyd’s evidence. More significantly, the Cabinet decisions, minutes and submissions that are amongst the documents over which public interest immunity is claimed refer, at most, to the attachment of the executive summary of the Morgan Stanley scoping report. There is no indication in the Cabinet decisions, minutes or submissions that the full version of the Morgan Stanley report or reports, or the reports prepared by the other advisers or consultants, were ever provided to Cabinet.

127    Ms Boyd’s general assertion that the Category D documents, including the external adviser’s reports, were in fact annexed to Cabinet submissions or minutes was also somewhat ambiguous and equivocal. Her evidence included the assertion that some of the reports were prepared at the request of the then Treasurer for the purpose of the Treasurer receiving advice in respect of matters that were “intended to be brought before Cabinet”. The suggestion appeared to be that the reports were provided to the Treasurer so that the Treasurer would subsequently be in a position to provide advice to Cabinet should the subject-matter of the advice be before Cabinet. That is inconsistent with the suggestion that the reports themselves were annexed to Cabinet minutes or submissions or were otherwise provided to Cabinet in their entirety.

128    Third, for the most part, the reports do not deal with government policy, even approaching the notion of policy in a broad sense. Rather, in general terms, the reports deal with technical aspects of the proposed transaction: the Morgan Stanley reports dealt primarily with commercial and financial aspects of the proposed transaction; the GHD report provided engineering advice; ERM provided environmental advice; and Minter Ellison provided legal advice. While it may be accepted that some of the technical advice may have been informed by or otherwise involved elements of government policy, the predominant focus of the advice was commercial, contractual, technical and transactional.

129    It should perhaps be noted, in this context, that no claim of legal professional privilege was made in relation to the Minter Ellison report, at least in this application. The issue concerning the disclosure of this report has been approached on that basis. If a claim of legal professional privilege is made in respect of the report, it should be dealt with separately.

130    Fourth, as has already been noted in other contexts, the subject matter of these reports is no longer current or controversial. So much so was conceded by the Secretary. The transactions that were the subject matter of the reports provided by the external advisers were completed many years ago. There is, in fact, no evidence that the transactions were even considered to be particularly controversial at the time they were proposed, entered into or completed.

131    Fifth, and related to the previous points, the Secretary did not contend that the disclosure of the specific content of these documents was contrary to the public interest. The Secretary’s contention was, put simply, that it was contrary to the public interest to disclose these documents because they fell within a class of Cabinet documents. That contention was supported by the evidence of Ms Boyd, which was referred to at length earlier. Relevant to this particular category of documents was Ms Boyd’s evidence that if this category of documents was to be disclosed, advice provided to the Government in the future, including by external consultants, may be drafted in such a way as to “minimise controversy”; or might “exclude[e] discussion of a controversial issue”; or avoid “controversial recommendations”; or be expressed in only “vague terms”.

132    For the reasons given at some length earlier, Ms Boyd’s views to that effect are deserving of minimal weight. It is, with respect, highly doubtful that Ms Boyd was in any real position to opine about what external advisers to the Government might or might not do if the confidentiality of their reports cannot be assured. Even putting that to one side, the notion that external advisers or consultants of the size and sophistication of those involved in this matter would operate on the basis that their advice may never be disclosed, or might temper or alter their advice simply because they could not be assured that their advice may never be disclosed, is highly dubious, if not somewhat fanciful. It is certainly not a notion that should be uncritically advanced or accepted in all circumstances.

133    Ms Boyd also expressed the view that it was “imperative” that Cabinet have the ability to obtain advice from external advisers with the “expectation” that the reports would be treated with the “same degree of confidentiality” as reports prepared by “internal advisers”. Ms Boyd did not, however, explain why that was so. It may be accepted that Cabinet would expect that advice that it received from external advisers would generally remain confidential, in the sense of not being publicly disclosed, particularly when first prepared and provided. It is not, however, entirely clear why Cabinet would necessarily expect, or be entitled or justified to expect, that such reports might not subsequently be required to be produced pursuant to court processes if, for example, the subject matter of the report became the subject of a legal dispute. The protection afforded by public interest immunity is not absolute.

134    The Secretary also submitted, in this context, that the disclosure of the external advisers’ reports would result in Cabinet being more reluctant to seek such advice in the future, or would lead Cabinet to seek advice in the future in more limited terms, or only to seek advice internally. That general proposition is, to say the least, doubtful, particularly in the particular circumstances of this case. It is very difficult to accept that if a Minister, or Cabinet generally, thought it necessary or desirable to obtain external advice concerning commercial, contractual or technical aspects of a transaction that the State proposed to enter into, that advice would not be sought, or would only be sought in limited terms, simply because the Minister, or Cabinet, considered there to be a risk that, some years later, the State may be required to produce the advice pursuant to a court process because it was considered to be relevant to a matter that had become litigious.

135    It should also be noted in this context that, in the unlikely event that there is any continuing need to preserve the confidentiality of some of the commercial or technical aspects of parts of these reports, that is a matter that can be dealt with by the making of suppression or non-publication orders in the substantive proceeding. The requirement to produce documents to the Court or the ACCC pursuant to discovery obligations does not mean that the documents will necessarily be made public. If there is a genuine need to prevent any information in these documents from being disclosed to the public generally, that need can be attended to or accommodated without completely depriving the ACCC or the Court of access to the documents.

136    It may also be accepted that some past authorities have advanced these sorts of rationales for protecting advice provided to Cabinet from disclosure. It is possible to see some logic in this rationale when the relevant advice is advice concerning controversial policy issues and is provided by a bureaucrat. The logic largely disappears, however, when the advice is commercial, legal, engineering, accounting or environmental advice and that advice is provided by a large and sophisticated external adviser. Indeed, the public interest in transparent decision-making by government would suggest that such advice should generally be available for scrutiny, save perhaps where contemporaneous disclosure of the specific content of the advice might result in prejudice for commercial or legal reasons.

137    Sixth, it is largely unnecessary to address separately the content of the individual reports of ERM, GHD and Minter Ellison or the extracts from them which dealt with the proposed transactions to sell Port Botany and Port Kembla. That is because those reports are all reproduced as annexures or attachments to the final Morgan Stanley scoping report in relation to Port Botany (document 52). If it is determined that this document should be produced, there would be no point in separately considering whether the individual reports that are included in it should also be disclosed.

138    The final Morgan Stanley scoping report concerning the sale of Port Botany and the annexures to it is lengthy, detailed and dense. It occupies two lever arch folders. The annexures also include a report from PwC in respect of the accounting and tax implications of the proposed transaction, though this report is not reproduced as a stand-alone, individual document. Aside from Ms Boyd’s general assertions, there is nothing to suggest that the entire scoping report was ever provided to Cabinet. All of the observations that have been made in relation to the individual reports of Morgan Stanley, ERM, GHD and Minter Ellison apply to this compendious document: as a whole, it deals with technical aspects of the proposed transactions and their execution, as opposed to matters of government policy; its subject matter is no longer current or controversial; and it is not suggested that there is a public interest in preventing the disclosure of any of its contents.

139    Seventh, and most significantly, the final Morgan Stanley scoping report clearly contains some information and statements that would appear to be clearly relevant and most likely material to the issues that will arise in the substantive proceeding. It is both unnecessary and obviously undesirable to consider at length the parts of the document that appear to contain material evidence. It suffices to say that the report and its attachments consider, in some places in considerable detail, competition issues, including issues arising from the potential development of a container terminal at the Port of Newcastle. There is a sound basis to infer or conclude that some of the contents of the report may be material to the “purpose” and “effect” elements of the ACCC’s case concerning the compensation provisions.

140    When the competing public interests are weighed together, the balance tips in favour of requiring disclosure of the final Morgan Stanley scoping report and all its attachments. On the one hand, for the reasons just given, the public interest in protecting this document from disclosure on the basis that it is supposedly a Cabinet document is, in all the circumstances, fairly slight. On the other hand, the public interest in favour of disclosure, being the public interest in the administration of justice, is significant. The document contains information and statements that are, or are highly likely to constitute, material evidence in the substantive proceeding commenced by the ACCC. It is in the public interest that all material evidence be available for tender in that proceeding, particularly given the important regulatory nature of the proceeding. In the particular circumstances of this case, that public interest outweighs the public interest in preserving the confidentiality of the document simply because it was, or is, a Cabinet document, in the sense that it, or part of it, was prepared for the purpose of informing Cabinet, or was provided to Cabinet.

141    Eighth, the documents that are included in Category D also include reports prepared by ERM, GHD and Minter Ellison for the purposes of a scoping report concerning the sale of the Port of Newcastle (see, for example, documents 29, 30 and 43 and 44). There does not, however, appear to be a final compendious Morgan Stanley scoping report in respect of the sale of the Port of Newcastle which annexes those reports. Somewhat curiously, there is a version of the executive summary of a Morgan Stanley scoping report in respect of the sale of the Port of Newcastle (document 31) included among the category D documents, thus suggesting that it is a final version, though that document is marked as a draft. As will be seen, there is also a draft of what appears to be a full version of Morgan Stanley’s scoping report in respect of the Port of Newcastle transaction included in the Category F documents, but apparently no final version of that document.

142    An inspection of the ERM and GHD reports concerning the proposed Port of Newcastle transaction revealed that, as perhaps may be expected given that they deal essentially with environmental and engineering considerations, they contain no apparently relevant or material evidence in respect of the substantive proceeding. The executive summary of the Morgan Stanley scoping study (document 31) and Minter Ellison report or reports (documents 43 and 44) dealing with the proposed Port of Newcastle study do, however, contain some potentially relevant and material evidence. It is again unnecessary and undesirable to identify or discuss that evidence. It is sufficient to note that both reports include statements concerning competition issues and considerations that are, or are likely to be, material to the ACCC’s “purpose” and “effect” allegations. In all the circumstances, the public interest against disclosure of the Minister Ellison reports is outweighed by the public interest in favour of disclosure arising from the fact that the reports contain material evidence. It should again be noted that there is no indication that any claim of legal professional privilege is made in relation to this report and the question of whether it should be disclosed has been approached on the basis that no such claim has been or is made.

143    Two other documents, document 40 and document 77, also need to be specifically addressed. Document 40 is the minutes of a steering committee meeting and document 77 is apparently a steering committee paper. The nature and significance of these documents and why they may have been put before Cabinet is, to say the very least, unclear and obscure. It is, however, unnecessary to dwell on them further as they contain nothing which could be of relevance to the substantive proceeding. On balance, therefore, they should not be disclosed. The public interest against disclosure outweighs any public interest in favour of disclosure.

144    The other documents within Category D would appear to be either copies, or extracts from or slightly different versions of the reports which have already been considered. For the reasons already given, it is unnecessary to consider them separately.

145    The end result is that it has been determined that the following documents in Category D should be disclosed: documents 31, 43, 44 and 52. If needs be, the ACCC may request the State to disclose duplicates of any of those documents or parts thereof. It is, however, or at least should be, unnecessary to order specifically that the duplicates be produced.

Category F – Draft Cabinet minutes and submissions

146    Documents 7 and 107-205 were said to be draft Cabinet minutes or submissions.

147    The position in relation to these documents would be relatively straightforward if they were drafts of the documents the final versions of which were considered in the context of Categories A and C. For the reasons given earlier, the public interest in protecting the documents comprising Cabinet decisions, minutes and submissions in Categories A and C outweighs the evidentiary value of those documents and therefore the public interest in disclosing them. It is difficult to see, in those circumstances, why the public interest could possibly favour disclosing drafts of those documents.

148    The curious fact about the draft Cabinet minutes and submissions that are in Category F, however, is that for the most part they are not drafts of the documents in Categories A and C. There would appear to be no final versions of many, if not most, of the draft documents in Category F, or, at least if there are, they have not been included amongst the documents which are the subject of the public interest immunity claim. The available inferences, in those circumstances, would appear to be either that these draft minutes and submissions were for some reason or other never finalised, or that they were finalised, but the final versions were such that for some reason or other they did not fall within the discovery categories. The former is the more likely scenario.

149    A number of the draft minutes or submissions were directed to, or were prepared by or for, the then Minister for Roads and Ports and deal with a particular proposal to develop the Port of Newcastle (see, in particular, documents 114, 117, 124 and 126). Those documents contain statements or information which could possibly be relevant to the substantive proceedings. That said, the evidentiary value of those statements or that information would appear to be fairly low, particularly given the fact that they are draft documents the genesis or provenance of which are somewhat unclear. The balance of the minutes or submissions in Category F do not appear to contain anything that could be said to amount to relevant evidence.

150    Given that the evidentiary value of these documents appears to be either non-existent or, at best, fairly slight, the prima facie public interest in protecting these draft Cabinet minutes and submissions outweighs any public interest in favour of disclosure.

151    Some of the draft minutes or submissions also annex or attach documents or draft documents. Those documents are properly considered to be part of the draft minute or submission. The evidentiary value of these attachments or annexures is also either non-existent or very slight. The public interest in protecting those attachments and annexures accordingly outweighs the public interest in favour of disclosure.

152    Finally, in respect of documents 139 and 142, as was previously mentioned, these documents cannot be considered, on any reading, to be draft cabinet minutes. They were a proposal or request from Newcastle Port Corporation to the NSW Government regarding the proposed container terminal at the Port of Newcastle. Although these documents could not sensibly be viewed as those pertaining to Category F, the evidentiary value of those documents was minimal, such that balancing exercise weighed in favour of non-disclosure.

153    In summary, no document in Category F should be produced or disclosed.

Category G – Draft annexures or attachments to Cabinet minutes and submissions

154    Documents 79-82, 117, 130-131, 206-229, 231-233, 236-256, 258-266, 268-272 and 274-311 were said to comprise draft versions of attachments to Cabinet minutes and submissions.

155    The inspection and balancing exercise in respect of these documents was extremely difficult. That was mainly because it was difficult to determine exactly what some of the documents were, or when or why they were drafted, or even whether final versions of these documents were ever prepared. As was noted earlier in the context of Category D, Ms Boyd’s evidence addressed this category of documents in a very general or global way. The document descriptions in the table annexed to Ms Boyd’s affidavit and the aide memoire also, for the most part, did not greatly assist.

156    Most of the documents within this category comprise different drafts of Morgan Stanley’s scoping report in respect of the proposed sale of the Port of Newcastle. As was noted earlier, no final version of the report was to be found within the Category D documents. It may be inferred, in those circumstances, that the report was never finalised, though there may perhaps be some other explanation for why a final version of the report, if one existed, was not discovered. Draft reports of Minter Ellison, PwC, GHD and ERM, all dealing with the proposed Port of Newcastle transaction, are also included amongst the documents within this category.

157    It is unnecessary to consider in detail the disclosure of the draft versions of the external advisers’ reports in relation to the proposed Port of Newcastle transaction. All of the points made earlier in respect of the public interest against disclosure of final versions of the advisers’ reports in Category D apply equally to drafts of the reports. The public interest against disclosure of these draft reports is, at best, slight and certainly not strong. Upon inspection, however, it would appear that only the draft Morgan Stanley report and the draft Minter Ellison report contain anything that could be said to be material evidence for the purposes of the substantive proceeding. That material evidence comprised, in general terms, statements concerning competition issues or considerations that are likely to be material to the ACCC’s “purpose” and “effect” allegations. While the apparent probative value of that evidence could not be said to be particularly strong, it is nevertheless sufficient to outweigh the public interest against disclosure of the documents.

158    The draft PwC, GHD and ERM reports, however, appear to contain no relevant or admissible evidence. The balance tips in favour of the non-disclosure of those reports.

159    It follows that the following documents should be disclosed or produced: document 207 (the draft Minter Ellison report in relation to the proposed Port of Newcastle transaction); documents 213 (being the draft executive summary of the Morgan Stanley report into the proposed Port of Newcastle transaction); and document 215 (being the draft of the Morgan Stanley scoping report into the proposed Port of Newcastle transaction). It is to be noted again that no claim of legal professional privilege appears to have been made in respect of the drafts of the Minter Ellison report. The documents the subject of the public interest immunity claim include duplicates and other versions of these three documents. It is unnecessary to make specific orders in relation to the production of those duplicates or other versions, though the State should produce them if requested to do so by the ACCC.

160    There are some other documents within this category that require brief attention. Document 239 (and similar versions in documents 259 and 279-280) is a document the precise nature or identity of which is unclear. It suffices to note that it contains no relevant evidence. The same can be said concerning document 282 (and other versions in documents 283-284, 296-297 and 309-310), which may be an extract from the Morgan Stanley report, document 298 (and other versions in documents 299-303), which appears to be an extract from a draft Morgan Stanley report concerning the proposed sale of Port Kembla and document 304 (and other versions in documents 305-307), which appears to be an extract from a Morgan Stanley report concerning the proposed sale of Port Botany. There is no public interest in favour of production of any of those documents.

161    Finally, within this category, document 278 appears to be a draft of an internal government advice to Cabinet concerning a business case put forward by Newcastle Port Corporation in relation to the development of the Port of Newcastle. The precise date, nature, authorship and provenance of this document is unclear. In any event, there is no public interest in favour of its disclosure as it contains no apparently material evidence.

Category H – Drafts of Minsters’ speaking notes

162    There is effectively only one document within this category, document 312 (and duplicates at documents 313 and 314). The document would appear to be speaking notes for a Minister to brief Cabinet in relation to an inquiry by the Legislative Council Public Works Committee into the impacts of the Port of Newcastle “sale arrangements” and to seek approval in relation to the Government’s response. It may be accepted that, having regard to the principles discussed earlier, there is a public interest against disclosing this document. While the document does refer to the terms of the Port Commitment Deeds, it could not be said that it includes anything that could be said to constitute material evidence for the substantive hearing. In the circumstances, the balance tips in favour of the non-disclosure of this document.

Category I – Documents that disclose the contents of documents in Categories C and F

163    The documents within this category, documents 315-389, are said to comprise documents, or parts of documents, that disclose the contents of submissions to Cabinet, Cabinet minutes or drafts thereof.

164    It is unnecessary to consider the documents in this category in any great detail. The inspection of these documents revealed two main features.

165    First, many of the documents within this category are emails between relatively senior public servants in NSW Treasury and the Department in respect of which only fairly small parts are the subject of the claim of public interest immunity. Those parts of the emails that are the subject of the claim included comments or queries about Cabinet minutes or submissions, or draft Cabinet minutes or submissions, that relate in one way or another to issues concerning the relevant ports or the proposed transactions relating to them. With only one exception, the relatively small number of documents which are not emails also contain similar comments or queries about existing or draft Cabinet submissions or minutes on that topic.

166    The one exception to that is document 325, which is a letter from Newcastle Port Corporation to Morgan Stanley. There is nothing in this document to suggest that it discloses, or tends to disclose, the content of a Cabinet minute or submission. While the proposal which appears to be the subject matter of this letter may ultimately have found its way into a Cabinet minute or submission, it does not follow that this document necessarily discloses the content of that minute or submission. In the absence of any further evidence concerning this particular document, it is difficult to see how it could properly be the subject of the Secretary’s public interest immunity claim.

167    It may generally be accepted that all of the other documents in this category, or the parts of them that are the subject of the public interest immunity claim, tend to disclose, to varying extents and degrees, the content of the relevant Cabinet minutes or submissions. It may therefore be accepted that, prima facie, there is a public interest against disclosure of these documents, albeit not a particularly strong one given that the subject matter of both the relevant Cabinet minutes and submissions themselves, and the emails or other documents that comment on them, are no longer current or controversial.

168    Second, and in all the circumstances perhaps more significantly, it cannot be concluded that any of the documents contain material or information that is, or is likely to constitute, evidence in the substantive proceeding which is sufficiently material or important to outweigh the public interest against disclosure. Some of the documents contain observations or queries that might be said to relate to or raise issues about competition between the ports, in particular between Port Kembla and the Port of Newcastle in a general sense. To that extent they might possibly be relevant to the issues in the substantive proceeding, though that is not, in all the circumstances, sufficient to tip the balance in favour of disclosure.

169    It follows that, save for document 325, the public interest in favour of non-disclosure outweighs any public interest in favour of production and the documents need not be produced.

Category J – Documents that disclose the content of attachments or annexures to Cabinet submissions or minutes or drafts of those documents

170    The documents within this category, documents 29-30, 32-33, 45-46, 50, 55, 60, 230, 234-235, 257, 267, 273, 390-413, 417-419, 423, 435, 437, 439 and 441, are said to comprise documents, or parts of documents, that disclose the contents of attachments or annexures to Cabinet submissions, Cabinet minutes or drafts thereof.

171    Most of the documents within this category are emails between officers in NSW Treasury and officers of Morgan Stanley concerning the terms of the Morgan Stanley scoping study report or reports. There are also some minutes of the meeting of a steering committee the members of which included Morgan Stanley and officers of various government Departments. Those minutes again appeared to deal with the terms of the Morgan Stanley scoping study report or reports. Public interest immunity claims are generally made only in respect of parts of these documents.

172    The public interest immunity claims in respect of the parts of documents in this category are fairly dubious. That is because, as discussed earlier, the evidence concerning the Morgan Stanley scoping reports, such as it was, was that Morgan Stanley had been retained by NSW Treasury to provide advice to the Treasurer. It does not appear that the full report or reports were ever intended to be put before Cabinet, though the executive summaries were. Moreover, for the reasons given earlier, any public interest in favour of preventing the disclosure of the Morgan Stanley scoping report concerning the privatisation of Port Botany and the draft Morgan Stanley scoping report concerning the privatisation of the Port of Newcastle is outweighed by the public interest in requiring production of the documents as they contain material evidence. It is difficult to see how, in those circumstances, there could be any significant public interest in preventing the disclosure of emails and other documents which address and discuss the terms of those reports.

173    It is essentially unnecessary to reach a concluded view as to the strength of any public interest against the disclosure of these documents. That is because, upon inspection, it became apparent that they do not contain any apparently relevant evidence in any event. In those circumstances, and given the ACCC’s concession that there was at least a prima facie case that these documents were Cabinet documents, the balance tips against disclosure.

174    There are also some documents within this category that in fact appear to discuss the content of draft Cabinet minutes or annexures thereto. Those documents include documents 409 and 431. Documents 409 and 431 also appear to include some statements that might possibly be relevant to the issues in the substantive proceeding, though the probative value of that evidence, if any, would appear to be very slight. On balance, it cannot be concluded that the possible evidence in those documents is of such significance as to outweigh the public interest against disclosure of the documents given that they tend to disclose the contents of a Cabinet minute.

175    The end result is that, on balance, none of the documents within category J need be disclosed.

Category L – Documents briefing Ministers or “high official[s]” in relation to Cabinet decisions or submissions

176    The documents within category L, documents 436-447, were said by Ms Boyd to comprise documents that were submitted to a Minister, Departmental Secretary or other high official about formal records of confidential deliberations, the content of submissions to Cabinet, attachments or annexures to submissions to Cabinet and speaking notes prepared for Ministers or about matters expected to be discussed at Cabinet.

177    The problem with the public interest immunity claim in respect of a number of the documents said to fall within this category is that, upon inspection, it became apparent that Ms Boyd’s general hearsay assertions concerning the categorisation of these documents appear to be very dubious and deserving of little weight. With some exceptions (including, in particular, documents 442 and 443), there is nothing on the face of the documents said to fall within this category to suggest that they were briefings to Ministers about matters expected to be discussed in Cabinet or documents expected to be provided to Cabinet. In the absence of any specific evidence concerning any of the documents, it cannot be inferred that a briefing or “update” given to a Minister or other official, even one about an apparently important issue, necessarily relates to a Cabinet decision or meeting, or even an expected Cabinet meeting or decision.

178    In all the circumstances, it cannot be concluded that documents 444, 445, 446 and 447 are Cabinet documents that could properly be the subject of a public interest immunity claim on that basis. The very general and global assertions about the nature of these documents made by Ms Boyd do not withstand scrutiny upon inspection.

179    Even if it could be concluded that these documents are Cabinet documents, the public interest against their disclosure is slight, particularly given the concession that their subject matter is no longer current or controversial. It is difficult to see how the disclosure of general briefing documents such as these, that do not refer to any specific Cabinet meeting or decision, or even any expected Cabinet meeting or decision, could possibly hinder or inhibit free and frank discussions at Cabinet meetings in the future.

180    There is, however, a countervailing public interest in favour of the disclosure of these particular documents as they appear to contain some evidence that may be material to the substantive proceeding. It is again unnecessary and undesirable to identify or discuss the nature of that evidence. It suffices to note that some of the documents refer to the Port Commitment Deeds and the compensation provisions and some refer to issues relating to competition between the relevant ports. While the evidence may not turn out to be particularly significant, it is nonetheless sufficient to outweigh any slight public interest that might attach to these documents if they could be considered to be Cabinet documents.

181    It is unnecessary to discuss the remaining documents within this category in any detail. In short, upon inspection it became apparent that they contained no material evidence. In those circumstances, even if the public interest against the disclosure of these documents may have been slight, it was sufficient to outweigh any public interest in favour of disclosure.

182    The end result of the inspection and balancing process in respect of this category of documents is that documents 444-447 should be produced.

Category M – Drafts of Category L documents (briefings)

183    There was, in effect, only one document within Category M: document 448. The other documents were duplicates of this document. Document 448 appears to be a draft of document 447. For the reasons already given, document 447 should be required to be disclosed. Document 448 should be disclosed on the same basis.

Category N – Documents that disclose the contents of Category L and M documents

184    The basis of the claim of public interest immunity in respect of the two documents which are said to fall within this category, documents 454 and 455 (and documents 456-459, which are duplicates of document 454) would also appear to be somewhat dubious. They are emails between officers of Treasury and Transport for NSW. It might perhaps be inferred from the content of these documents that they disclose the content of a briefing paper, or draft briefing paper. It cannot be inferred from the contents of the documents, however, that the briefing related to a Cabinet meeting or decision, or expected Cabinet meeting or decision. Ms Boyd’s broad and general assertions concerning this category of documents also does not assist.

185    In all the circumstances, the claim of public interest immunity in relation to these documents has not been established. The documents also appear to contain some material evidence. Even if these documents could be said to be Cabinet documents, which is doubtful, the slight public interest against disclosure of them on the basis of their status as such is outweighed by the public interest in favour of disclosure of documents containing potentially material evidence.

186    The end result of the inspection and balancing process in respect of this category of documents is that documents 454 and 455 should be produced.

CONCLUSION AND DISPOSITION

187    In all the circumstances, the public interest in requiring the production of a number of the documents which are the subject of the Secretary’s public interest immunity claim outweighs the public interest against disclosure of the documents based on their status of Cabinet documents. In summary, the documents that should be produced by the State are documents 31, 43, 44, 52, 207, 213, 215, 325, 444, 445, 446, 447, 448, 454 and 455. An order will be made requiring the production of those documents. If requested by the ACCC, the State should also produce duplicates, copies, drafts, extracts, parts or similar versions of those documents as described in the aide memoire, though it is unnecessary to make a specific order to that effect.

188    In summary, the public interest tips in favour of the disclosure of those documents because they contain apparently material evidence in respect of the substantive proceedings and the particular nature and content of the documents is such that the public interest against their disclosure is relatively slight, even though they may, broadly speaking, be considered to be Cabinet documents. The case for disclosure is perhaps clearest in the case of the reports and draft reports of external consultants and advisers (Categories D and G), particularly given that the content and subject matter of those reports was mainly commercial, contractual or technical and is no longer current or controversial. Those reports and draft reports also contain some potentially material evidence.

189    The remaining documents which are the subject of the Secretary’s claim are immune from production. That is most clearly the case in relation to the documents which disclose or tend to disclose Cabinet decisions or deliberations, or the content of submissions to Cabinet (Categories A, B and C), particularly in circumstances where those documents did not contain any apparently material or important evidence.

190    The parties will be given an opportunity to make brief written submissions in relation to the costs of this proceeding.

Associate:

Dated:    9 December 2020