FEDERAL COURT OF AUSTRALIA

Warren v Chief Executive Officer, Services Australia [2023] FCA 1337

ORDERS

THE COURT ORDERS THAT:

1.    Until further order, pursuant to s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, any disclosure (by publication or otherwise), in connection with this proceeding, of the confidential material at paragraphs [13] and [19(c)(i)] of the Affidavit of Leonie McGregor dated 21 July 2021 be prohibited, save for disclosure to:

(a)    the Court and its staff, and any person performing services for the Court, acting in the course of their duties;

(b)    the respondent and its legal representatives; or

(c)    the Commonwealth and its officers.

2.    Liberty is granted to the respondent to provide any further submission as to any document containing material that discloses or is likely to disclose the documents in issue in the substantive appeal in writing within 1 business day of the publication of these reasons, with a right of reply to the appellant within 1 business day thereafter.

3.    The operation of these orders is stayed until 4 pm on 10 November 2023.

4.    Costs be reserved.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    As long ago as 14 January 2017, Mr Warren made a request to the Department of Human Services for the provision and access to specified documents under the Freedom of Information Act 1982 (Cth) (FOI Act). The scope of his request related to a Pay As You Go (PAYG) data matching initiative that had been the subject of a question on notice from the Senate Community Affairs Legislation Committee at a Budget Estimates hearing on 3 June 2015. As is now well-known, that scheme later attracted much public attention, became commonly referred to as Robodebt, was extensively investigated by the Royal Commission into the Robodebt Scheme and is the subject of the Final Report of the Royal Commission as delivered to the Governor-General on 7 July 2023 by Commissioner Holmes AC SC.

2    The Department on 8 May 2017, identified 13 documents relating to Mr Warren’s request but refused access to those documents pursuant to ss 34 and or 37(2)(b) of the FOI Act. Section 34 is concerned with the exemption for Cabinet documents and s 37(2)(b) relates to documents that could reasonably be expected to disclose lawful methods or procedures for investigating breaches of the law. It is only the Cabinet documents exemption claim that is now relevant. Being dissatisfied with that decision, on 16 May 2017, Mr Warren applied to the Information Commissioner for review of the departmental decision pursuant to s 54L of the FOI Act. The Information Commissioner on 11 November 2019, set aside aspects of the decision made by the Department, particularly that a number of the documents were not exempt pursuant to s 34.

3    On 29 November 2019, Services Australia (the new name for the Department) applied to the Administrative Appeals Tribunal to review the decision of the Information Commissioner. That review application became protracted before the Tribunal. Various documents were filed and exchanged between Services Australia and Mr Warren between 8 May 2020 and 18 June 2021. The Tribunal conducted a hearing between 21 and 23 June 2021, when the evidence concluded. The Deputy President who heard the matter then made directions to set a timetable for written closing submissions. Before expiry of the timetable, Services Australia on 29 June 2021, applied to the Tribunal for leave to file further affidavit evidence and to reopen its case. At a directions hearing on 1 July 2021, a timetable was set for the filing of submissions by the parties upon that application.

4    On 21 July 2021, Services Australia filed submissions in support of its application together with a redacted version of an affidavit made by Ms Leonie McGregor on 21 July 2021 (McGregor Affidavit). Ms McGregor had earlier provided evidence to the Tribunal. A version of the McGregor Affidavit, without redactions was provided to the Tribunal. Also on 21 July 2021, Services Australia filed with the Tribunal an application for the making of a direction in the form of a confidentiality order pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), to restrict disclosure of certain information in the unredacted version of the McGregor Affidavit to the Deputy President, Services Australia and its legal representatives and staff and representatives of the Department of the Prime Minister and Cabinet. The application provided:

1.    The Applicant requests a direction under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) restricting the following information in the unredacted Confidential Supplementary Affidavit of Leonie McGregor dated 21 July 2021 (Confidential Supplementary Affidavit):

(a)    the information highlighted in yellow at paragraphs 7-13, 15–17 and 19; and

(b)    the annexures, marked as Confidential Annexures SLM-1 to SLM-7,

to the following people:

(c)    Deputy President Britten-Jones

(d)    the Applicant and its legal representatives;

(e)    staff and representatives of the Department of the Prime Minister and Cabinet.

2.    This direction is sought for the reasons outlined in paragraphs 5 and 6 of the Confidential Supplementary Affidavit (and in the open version of the Supplementary Affidavit).

5    The open version of the McGregor Affidavit redacted certain facts marked in yellow at paragraphs 7-13, 15-17, 19 and the entirety of annexures SLM-1 to SLM-7.

6    Section 35(4) of the AAT Act confers discretionary power to make orders or give directions “prohibiting or restricting the publication or other disclosure” of information that relates to a proceeding. In exercising that discretion, the Tribunal “is to take as the basis of its consideration the principle that it is desirable”, that proceeding before the Tribunal should be held in public pursuant to s 35(5) but which then continues:

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

7    As Mr Warren opposed the application to reopen and the confidentiality application, a contested hearing limited to the confidentiality application, occurred before the Tribunal on 25 August 2021. In oral submissions in support of that application, counsel for Services Australia emphasised that determination of the confidentiality application “may have repercussions” for the application to reopen. In support of the making of a confidentiality order or direction, counsel for Services Australia submitted that the McGregor Affidavit was intended to be relied upon as supporting the exempt status of the Cabinet documents in issue. Amongst other things, he submitted to the Tribunal that:

So in defending an application for disclosure of Cabinet documents, or what we claim to be Cabinet documents that would allow inferences to be drawn about Cabinet deliberations under the Freedom of Information Act, we submit it would be unfair and inappropriate if the applicant was required to disclose information that was relevant to whether the documents in issue should be disclosed. Which is not only the very type of information it seeks to protect, but is, in fact, even more sensitive than the information it seeks to protect.

If the Deputy President looks at the information in the supplementary affidavit of Ms McGregor that we seek a confidentiality order over, it will, we submit, be readily apparent that it is even more sensitive than the documents we are fighting over in this case, because it includes, firstly, final rather than draft versions of the documents at issue in these proceedings. But also considerable detail about Cabinet’s deliberations and other Cabinet documents.

And, if the confidentiality order is not made, then the applicant would be placed in an invidious and difficult and unsatisfactory position of having to decide whether it is prepared for that even more sensitive Cabinet information to be disclosed to the respondent in that proposed order seeks that it be disclosed to not only the respondent’s legal representatives, but the respondent himself.

8    Counsel further emphasised that it would not be “appropriate” for Services Australia to be required to decide whether to defend an application for access to documents pursuant to the FOI Act by either choosing not to appraise the Tribunal of all relevant matters or, if it did, “run a significant risk of disclosing even more sensitive information to the opposing legal representatives or perhaps the opposing party itself.” If the confidentiality orders were not made, counsel submitted that the Tribunal’s procedures would be thwarted in that an applicant would be entitled to receive information relevant to, and which possibly disclosed, the content of the documents in dispute.

9    Counsel for Mr Warren in part opposed the confidentiality application, submitting that it should be rejected in relation to each redaction in the McGregor Affidavit, but accepted that “it is not appropriate to force the party to decide to defend an application such as that brought by the respondent by disclosing the very material in issue”. On that basis, counsel submitted that the “correct decision” pursuant to s 35 of the FOI Act, would be one limited to annexures SLM-1, SLM-2 and SLM-3 to the McGregor Affidavit.

10    The Deputy President adjourned briefly to reflect on the submissions and later that day in ex tempore reasons concluded that the confidentiality order sought by Services Australia would be made. He reasoned that the redacted portions of the McGregor Affidavit concerned the content of documents which attracted the exemption for Cabinet documents at s 34 of the FOI Act. In doing so, the Deputy President accepted that Services Australia:

[S]hould not be required to disclose information relevant to whether the documents in issue should be disclosed, which is not only the very type of information it seeks to protect but is in fact even more sensitive.

11    The reasons of the Deputy President relevantly continued:

The respondent accepts that it may be appropriate to restrict disclosure of new policy proposals submitted to Cabinet, but otherwise argues that restriction of the redacted material would amount to a denial of procedural fairness and should not be permitted.

…

The affidavit from Ms McGregor of 21 July 2021 as redacted, namely the open affidavit, describes documents including new policy proposals which I am satisfied would come within section 34 of the Freedom of Information Act which relates to Cabinet documents. Further, I am satisfied that the redacted parts of Ms McGregor’s affidavit disclose information contained within Cabinet documents or Cabinet deliberations and there [sic] should not be disclosed. I do not consider there to be any procedural unfairness in the context of this interlocutory application to reopen the case by the applicant. The respondent is aware through the un-redacted parts of Ms McGregor’s affidavit of the basis for the application to reopen, namely that there are draft documents which are substantially similar to final documents.

The authorities refer to the risk of inadvertent disclosure by a solicitor to whom access may be given. I consider that risk to be even more apparent if the document is disclosed to the respondent himself. I do not suggest that the respondent himself would deliberately disclose the confidential information, but there is always a risk that will happen inadvertently.

I am not prepared to allow the respondent himself access to the confidential information and consequently I am not prepared to make the orders proposed by the respondent.

I am prepared to make the order for confidentiality as proposed by the applicant which has the effect of prohibiting disclosure to the respondent and his legal representatives.

They are my reasons. The confidentiality order that will be made by the tribunal will be in the terms that were submitted to the tribunal by the solicitors for the applicant on 21 July 2021, noting that there is a reference to certain persons to whom the documents are restricted, including myself, but I would add where it says Deputy President Britten-Jones the words and tribunal staff, but otherwise the terms of the order will be as per that application unless either of the parties have anything they wish to say about the terms of the order itself.

12    Thereafter, the Tribunal issued a document in the form of a direction as follows:

The Tribunal DIRECTS, pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975, that:

(a)    the following information in the unredacted Confidential Supplementary Affidavit of Leonie McGregor dated 21 July 2021 (Confidential Supplementary Affidavit) must not be published:

(i)    the information highlighted in yellow at paragraphs 7-13, 15-17 and 19; and

(ii)    the annexures, marked as confidential annexures SLM-1 to SLM-7.

(b)    the information specified in paragraph (a) must not be disclosed to any person other than:

(i)    members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties;

(ii)    the applicant and its legal representatives; and

(iii)    staff and representatives of the Department of the Prime Minister and Cabinet.

13    On 29 September 2021, Services Australia filed supplementary Tribunal documents, one version with redactions and the other without, conformably with the direction made by the Tribunal. Between 6 October and 21 October 2021, Mr Warren and Services Australia filed and exchanged submissions concerning the application to reopen. The Tribunal heard that application on 22 October 2021, and granted the leave sought by Services Australia. In doing so it accepted into evidence the McGregor Affidavit. On 2 December 2021, the Tribunal conducted a further hearing at which Ms McGregor, amongst others, was cross-examined. The Tribunal then adjourned the further hearing and set a timetable for written closing submissions. Oral submissions were then received by the Tribunal on 23 December 2021, at which time the Tribunal reserved its entire decision upon the matter before it.

14    It took some while for the Tribunal to deliver its decision, which was ultimately published on 2 December 2022: Services Australia v Warren [2022] AATA 4191. The Tribunal affirmed the decision of the Information Commissioner in relation to documents 4 , 9, 10 and 12 and set aside and substituted for that decision, in relation to documents 1, 2, 3, 5, 6, 7 and 8, a determination that the documents are exempt from disclosure. At this point, it is necessary to identify the document categories in dispute. The documents are:

(a)    1, 2, 3, 7 and 8. These documents are draft costing spreadsheets concerning new policy proposals (NPPs) that were ultimately provided to Cabinet for consideration. The Tribunal determined that these documents were exempt under each of s 34(3) (Cabinet documents) and s 47C Cabinet (public interest deliberative processes);

(b)    4, 9 and 10. These documents are draft NPPs that were ultimately submitted to Cabinet for consideration. The Tribunal determined that these documents were exempt under each of ss 34(3) and 47C;

(c)    5 and 6. These are costings documents containing information in NPPs that the Tribunal determined were exempt under s 47C; and

(d)    11, 12 and 13. These documents were described as setting out assumptions applied by the Department for the purpose of preparing costings that were included in a Cabinet submission (11), a costing document used for the purposes of a Cabinet submission (12), and a document containing information detailing departmental methods or procedures for detecting breaches of the law. Before the Tribunal, Services Australia did not press its case that any of these documents were exempt.

15    On 21 December 2022, Mr Warren filed a notice of appeal in this Court from the decision of the Tribunal. Subsequently on 7 July 2023, he filed with leave an amended notice of appeal. This appeal is limited to documents 1-10. Since commencement of the appeal, Services Australia has “administratively” granted Mr Warren access to documents 5 and 6. The appeal was listed to be heard by the Full Court on 18 August 2023 comprising Katzmann J, Kennett J and myself. On 7 August 2023, Services Australia filed an interlocutory application (Suppression Application) and sought the following orders:

1.    Until further order, pursuant to s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, any disclosure (by publication or otherwise), in connection with this proceeding, of the confidential material listed in Annexure A to this order be prohibited, save for disclosure to:

1.1.    the Court and its staff, and any person performing services for the Court, acting in the course of their duties;

1.2.    the Respondent and its legal representatives; or

1.3.    the Commonwealth and its officers.

2.    Costs be reserved.

16    Annexure A provides:

17    The Suppression Application was made returnable before the Full Court on 18 August 2023. There was insufficient time to complete the hearing. The appeal stands part heard to resume on 29 and 30 November 2023. Orders were made on 18 August 2023 pursuant to s 37AF(1)(b) of the Federal Court of Australia Act 1976 (FCA Act) that until the determination of the proceedings, and on the ground that it is necessary to prevent prejudice to the proper administration of justice, disclosure of the documents itemised at 1-8 of Annexure A be prohibited save for disclosure to the Court, Court staff, the respondent and its legal representatives or the Commonwealth and its officers. The reason for making that order is that these are the documents in issue, and prior disclosure will render the appeal nugatory.

18    The Full Court did not have sufficient time to hear the arguments in relation to the balance of the Suppression Application. For that reason, an order was made, in similar terms, pursuant to s 37AI(1) of the FCA Act prohibiting disclosure of the material listed in items 9-12 of Annexure A until determination of the Suppression Application. It was further determined that the Suppression Application would be heard by a single judge. I heard the Suppression Application on 16 October 2023, pursuant to s 25(2B)(ab) of the FCA Act. By the time of the hearing, Services Australia reduced the scope of the orders sought to an amended version of Annexure A as follows:

19    For the reasons that follow, I have concluded that the Suppression Application largely fails, save that disclosure, by publication or otherwise, in this proceeding of the material listed at paragraphs [13] and [19(c)] of the McGregor Affidavit should be prohibited until further order.

EVIDENCE RELIED ON

20    Mr Knowles KC for Services Australia read into evidence without objection affidavits made by Melissa Gangemi, a solicitor in the employ of the Australian Government Solicitor (AGS), made on 7, 16 and 18 August 2023 and a very extensive affidavit made by Thomas Creedon, who is also a solicitor in the employ of the AGS, made on 9 October 2023. Mr Cooper, counsel for Mr Warren, did not challenge any of that evidence.

21    Between October 2022 and July 2023, Mr Creedon was part of a team within the AGS acting for the Commonwealth in the Royal Commission. In that role, his primary duty was to manage claims of legal professional privilege, public interest immunity and parliamentary privilege in respect of the information sought by the Royal Commission in notices to produce and notices to give a statement. In very great detail, Mr Creedon describes the process whereby digital files were established in order to assist the Royal Commission in the discharge of its function. In relation to Cabinet documents, public interest immunity and Cabinet confidentiality were claimed and, where the claims were not accepted, various rulings in relation to those claims were sought from the Royal Commission. This process resulted in either acceptance by the Royal Commission that the production and publication of documents be limited to portions that were not subject to legal professional privilege or public interest immunity or, a number of relevant rulings were made concerning the documents in issue. In all, there are seven rulings covering a range of documents. Each document that was received in evidence by the Royal Commission was publicly exhibited, with redactions to reflect the agreed or determined privilege and immunity claims.

22    However, very many Cabinet documents were produced to the Royal Commission without an assertion of public interest immunity, which explains why the scope of the orders now sought is limited to certain paragraphs, sentences or in some cases single words in items 9-12. This also explains a concern that Katzmann J expressed, speaking for the Court, during oral submissions on 18 August 2023. Put simply, the issue is not simply whether the documents in issue were disclosed publicly but whether the content or substance was disclosed in other documents received in evidence by the Royal Commission.

23    I pause to observe that this is not to say that there has been a waiver of the public interest immunity claims, which is not possible: Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436 (Lord Fraser); Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427 at 436 (Drummond J). Rather, in the present case the issue is whether the making of the suppression orders is necessary to prevent prejudice to the proper administration of justice where Services Australia contends that portions of Cabinet documents, that would otherwise have been subject to a class claim on the grounds of public interest immunity, should be withheld despite disclosure of the balance of the Cabinet documents or the information contained therein. In this case it is significant that the Executive Government did not press claims for public interest immunity over a very considerable volume of Cabinet information relating to Robodebt.

24    Mr Creedon has conducted a painstaking review to address that issue. In summary, he proceeded as follows. The Commonwealth engaged a third-party document management provider, utilising the Nuix Discover software programme, to store and manage all departmental and agency records relevant to the Robodebt Scheme. A department or agency in receipt of a notice to produce documents from the Royal Commission would first collate and review the documents, with external legal assistance, in order to identify claims for legal professional privilege or public interest immunity. Once collated, the documents would be transferred to the third-party database. Lawyers from the AGS would then instruct the third-party to produce the documents to the Royal Commission. Subject to rulings made by the Royal Commission on questions of legal professional privilege or public interest immunity, each document received by the Royal Commission was exhibited publicly. No documents were tendered on a confidential basis that were used by the Royal Commission without also being made publicly available.

25    Some exhibits were received with redactions. The redacted material was not received in evidence by the Royal Commission. Following delivery of the Final Report, the third-party database was transferred to the AGS. Mr Creedon has personally undertaken searches to determine whether any of documents 9-12 or the information contained in those documents has been publicly disclosed. His task included comparing documents 9-12 with oral evidence and documents produced to the Royal Commission during open hearings. Mr Creedon undertook targeted word searches in the AGS database for key phrases in exhibited documents. He chose words that provide details about the nature of the subject matter, and then conducted more specific searches. He had regard to each of the public interest immunity rulings. He reviewed the exhibited documents on the website of the Royal Commission in order to be satisfied as to the extent of information in the public domain. He also reviewed a consolidated transcript of all hearings before the Royal Commission, excluding closed hearings, to determine whether information contained in documents 9-12 was the subject of oral evidence.

26    This process has satisfied Mr Creedon that a considerable amount of the information in documents 9-12 has been publicly disclosed. In consequence, Services Australia now seeks a modified non-disclosure order as amended in Annexure A. In summary, I am satisfied in accordance with Mr Creedon’s evidence as follows.

27    Document 9 is the unredacted McGregor Affidavit which was produced to the Royal Commission, but was not exhibited. No version of that affidavit appears on the Royal Commission website. There is no reference in the transcript of the oral hearings to the affidavit.

28    The confidentiality claim is limited to paragraphs [13], [17(c)(iii)] and [19(c)(i)] of the affidavit and certain annexures. The material contained in paragraphs [13] and [19(c)(i)] has not been publicly disclosed. The position with paragraph [17(c)(iii)] and the annexures is less straightforward.

29    Paragraph [17(c)(iii)] relates to information in the minute of the Expenditure Review Committee dated 25 November 2015, which was exhibited to the McGregor Affidavit as annexure SLM-6. The redacted portion has not otherwise been disclosed. It follows that my analysis of this paragraph turns on my analysis of annexure SLM-6 below.

30    Annexure SLM-1 is an 8-page document and is the final version of NPP 1. That document, and drafts of it, were the subject of various rulings made by the Commissioner, which resulted in certain redactions before the document was exhibited. The redacted portions have not otherwise been publicly disclosed. In summary the redactions comprise the “Authority for the NPP” and “Constitutional risk” information on page 1; part of a sentence in the second paragraph and the entirety of the fourth full paragraph on page 2; the first two sentences of the third full paragraph on page 3 and, on page 4, two sentences next to a bullet point, a portion of the final sentence in the first full paragraph, the whole of paragraphs three and four, the final sentence in paragraph five and part of the final sentences in paragraphs six and seven.

31    Annexure SLM-2 is a 4-page document that comprises NPP 2 and NPP 3. In part the content of NPP 2 was the subject of evidence before the Royal Commission, but NPP 2 was not received as an exhibit. The redacted portions of NPP 2 have not been publicly disclosed. The position is the same for NPP 3. The redactions comprise details at the top of the page and part of the first sentence in paragraph two on page 1; four words in the fourth paragraph and the final sentence in paragraph six on page 2; a single word on page 3 and the majority of the due diligence checklist on page 4.

32    Annexure SLM-3 is not in issue.

33    Annexure SLM-4 is an undated 5-page letter from the Minister for Social Services to the Prime Minister. Significant portions of the letter have been redacted as irrelevant to the issues before the Tribunal. The scope of the non-disclosure order is limited to certain words and sentences on the third, fourth and fifth pages of the letter. The content of that material has not been publicly disclosed. The redactions comprise a figure in the final paragraph on page 3; the whole of the first paragraph and two figures on page 4 and two words in the first paragraph, the final sentence of the second paragraph and the entirety of paragraphs three and four on page 5.

34    Annexure SLM-5 is a 5 page document known as a green brief prepared by the Department of Finance dated 23 November 2015. A green brief is prepared for consideration by the Expenditure Review Committee of Cabinet and summarises key elements of the proposal, associated financial implications and departmental and agency views. The document was considered by the Expenditure Review Committee on 25 November 2015. It is the subject of rulings made by the Commissioner, the result of which is that it was exhibited with redactions. Additionally, extracts from the document were otherwise partially disclosed to the Royal Commission. The non-disclosure order that is now sought is limited to certain redactions on pages marked 20 and 21. The content of that material has not been publicly disclosed. The redactions comprise, on page 20 in the left column, one sentence in the first paragraph and a table below the third paragraph; a table of figures in the middle column and six paragraphs in the right column. On page 21, the entirety of the page is redacted comprising a table of figures.

35    SLM-6 is a Cabinet minute dated 25 November 2015, comprising 2 pages. It records decisions as made by the Expenditure Review Committee. This document was not exhibited by the Royal Commission. However, in part there was disclosure of the contents of the document when Mr Morrison MP gave evidence to the Royal Commission. The balance of the content has not been publicly disclosed. The redactions, all of which are on page 2, comprise the second half of the paragraph at point three, a table of figures and the entirety of point five.

36    SLM-7 is a letter from the Minister for Social Services to the Prime Minister dated 13 October 2016, with attachments. This material was the subject of two rulings by the Royal Commission, with the result that the letter was not disclosed. Substantial portions of the letter were redacted as irrelevant before the Tribunal. The non-disclosure order is sought in respect of material on the first, second and third pages. The letter was not exhibited by the Royal Commission and the content of those portions of it the subject of the non-disclosure order has not been publicly disclosed. This document was produced to the Tribunal on a confidential basis as evidence to support the contention that documents 1-8 are exempt as Cabinet documents.

37    The final component of document 9 is an unredacted bundle of supplementary Tribunal documents, about which the Tribunal made confidentiality orders. It comprises attachments to a Cabinet submission with the title: Extended Enhanced Welfare Payment Integrity – Income Data Matching. This document was in part exhibited in the Royal Commission. A claim for legal professional privilege was accepted and for other components redactions were made. Mr Creedon deposes that the information contained in that part of the document was not disclosed by the Royal Commission, was not otherwise the subject of evidence and has not been publicly disclosed. The redactions comprise the “constitutional risk” on pages 1 and 4 of the bundle and multiple redactions on page 7 of the bundle including various details of the NPP, a portion of the second full paragraph and the final sentence of the fourth paragraph. On page 8, a portion of the second sentence in the first paragraph, the second sentences in the second and third paragraphs and portions of two sentences in the fourth paragraph are redacted. The redacted information on pages 9 and 10 include the risk rating, a table of figures and a due diligence checklist.

38    Document 10 comprises supplementary Tribunal documents known as ST29, including a draft of NPP 1. The Tribunal made a confidentiality order in relation to these documents. The suppression order relates to a minimal number of redactions of various words and sentences which have not been publicly disclosed. The redactions are consistent with the redactions to SLM-1.

39    Document 11 is a further draft of NPP 1, marked as ST30 in the Tribunal and which was also the subject of a confidentiality order. Like document 10, the suppression order is confined to words and sentences that have not been publicly disclosed and the redactions are again consistent with SLM-1.

40    Document 12 is a draft of a letter from the Minister for Social Services to the Prime Minister, with three attachments comprising Npps with the titles: Extension of Employment Income Matching, Increased Welfare Compliance From Data Matching and Expanding Social Welfare Debt Recovery. These documents were received by the Tribunal as ST31. The Suppression Application is confined to portions of the draft letter concerning matters to be discussed by Cabinet and drafts of NPPs also prepared for that purpose. A considerable amount of the content of these documents was disclosed either in exhibits of the Royal Commission or in evidence. The suppression order is confined to material in those documents which has not been publicly disclosed. The redactions comprise, in relation to the letter, a portion of the first paragraph, a figure in the third paragraph and the entirety of paragraphs four, five and six on page 1. On page 2, two figures are redacted from the second paragraph as well as the whole of paragraph three and two figures in paragraph seven. On page 3, there is redacted two words from paragraph one, the second half of the last sentence in paragraph two and a heading and seven paragraphs at the bottom of the page. On page 4, the first four paragraphs are redacted in their entirety. In relation to the attachments, the entirety of Attachment B is redacted comprising a heading and a single sentence. In the document entitled Extension of Employment Income Matching, the “constitutional risk”, a table of figures and a figure at paragraph two are redacted on page 1, two table of figures are redacted at page 3 and two comments at 3.1 and 3.2 of the NPP Due Diligence Checklist are redacted at page 4. In the document entitled Increased Welfare Compliance from Data Matching, the redactions are generally consistent with SLM-2, although this document differs in relation to the “constitutional risk” and the inclusion of a table of figures on page 1 and the insertion of a new page four with tables of figures, all of which have all been redacted. Finally, in relation to the document entitled Expanding Social Welfare Debt Recovery, the “constitutional risk” and table of figures are redacted from page 1, two tables of figures are redacted from page 3 and two comments at 3.1 and 3.2 of the NPP Due Diligence checklist are redacted on page 5.

41    I accept this evidence of Mr Creedon and I find accordingly.

THE BASIS FOR THE SUPPRESSION APPLICATION

42    Mr Knowles KC for Services Australia submits that the necessarily stringent requirement of s 37AG(1)(a) of the FCA Act is met on three bases. First, where disclosure will reveal the content of one or more of documents 1-8 that are in issue in the appeal. If the suppression order is not made, the appeal will likely be rendered moot, at least in part. This submission when advanced orally was limited to paragraphs [13(a)-(g)] and [19(c)] of the McGregor Affidavit. The submission is that a person reading these paragraphs could ascertain information about the documents in issue and thereby outflank the orders made on 18 August 2023. For this contention, reliance is also placed on s 64 of the FOI Act the effect of which is that where a document that is claimed to be exempt is produced to the Tribunal only, Tribunal members and staff may access it. Where there is an appeal, s 46 of the AAT Act requires the Tribunal to transmit all documents that were before the Tribunal to, relevantly, this Court. In that circumstance, s 64(6) of the FOI Act operates:

Subsection (1), (1A) or (2) does not operate so as to prevent the Tribunal from causing a document produced in accordance with that subsection to be sent to the Federal Court of Australia in accordance with section 46 of the Administrative Appeals Tribunal Act 1975, but, where such a document is so sent to the Court, the Court shall do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than a member of the Court as constituted for the purpose of the proceeding before the Court or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff.

43    However, as Mr Knowles accepts, s 64(6) does not operate where a party produces the document to this Court on a confidential basis and then seeks orders pursuant to s 37AG of the FCA Act. The submission is then that the making of a non-publication order pursuant to s 37AG of the FCA Act is consistent with the purpose of s 64(6) of the FOI Act.

44    Secondly, disclosure of those documents to the Tribunal occurred because Services Australia sought to place before it all relevant evidence in support of its case that documents 1-8 attract the Cabinet confidentiality exemption but on the express basis that these documents would be the subject of a confidentiality order. The submission of Mr Knowles continued:

It shouldn’t be the case, we say, just in terms of the interests of the administration of justice – shouldn’t be the case that a litigant has to put on – despite the sensitivity of the evidence, has to put on no evidence to support a particular claim, thereby subverting the proper administration of the FOI Act such that exemption claims cannot be established by reason of fear that confidential information that’s put forward to prove the confidentiality of the information the subject of the exemption claims is later going to be disclosed. It shouldn’t be the case that a litigant has to make some sort of choice in that sense between the confidentiality of the material the subject of the exemption claims and the confidentiality of evidence that’s put to establish those exemption claims. It would subvert the process of dealing with establishing exemption claims before the tribunal.

So it shouldn’t be the case that you have to make a choice of those – in those terms where if you don’t disclose secret material, you can’t protect secret material. If you do disclose secret material to protect secret material, that secret material might itself be disclosed. They should not be the choices in litigation such as this, and if they are, we would say that that is going to prejudice the proper administration of justice, particularly in the realm of FOI proceedings such as this.

45    Thirdly, that by adopting a forward-looking approach, regard should be had to the potential impact of disclosure of Cabinet documents in this case upon future litigation and that I should draw the inference that if there is a risk of disclosure, it may inhibit government parties from providing the best available evidence to a tribunal or a court in future cases. Reliance is placed on Ms Gangemi’s evidence in her affidavit of 7 August 2023, wherein she deposes that if the suppression orders are not made there would be likely prejudice to the administration of justice by inhibiting the provision of confidential information to the Tribunal in future cases in the knowledge of the risk of public disclosure upon appeal to this Court. That evidence is expressed as a conclusion, is speculative, fails to particularise the basis for it and carries very little weight in consequence.

46    The appellant neither consents to nor opposes the suppression order. His counsel, Mr Cooper performed the very useful role of contradictor. Emphasis is placed upon the open justice principle and the stringency of the necessity test at s 37AG(1)(a) of the FCA Act. The power which this Court has to make a suppression order concerns information, rather than documents per se: s 37AF of the FCA Act. On this approach, the Court must be satisfied that the information has not entered the public domain and should not be distracted by the fact that the information is contained in Cabinet documents. In this case, despite legitimate claims that may have been made by the Executive Government to withhold all Cabinet documents from public disclosure, a very great quantity of information, including matters considered by Cabinet, was provided to the Royal Commission. That reflects one or more advertent decisions by the Executive not to press claims of public interest immunity in order to expose for inquiry the failures of the Robodebt Scheme. Once that point is understood, it is artificial to adopt the strict view that is taken by Services Australia by delineating between specific information that has, and has not, been publicly disclosed. It follows, in accordance with that argument that:

There comes a point, however, where the fine distinctions sought to be drawn by [Services Australia] undermine the proposition that the suppression orders are necessary to prevent prejudice to the proper administration of justice. That is, where vast amounts of previously confidential information about the subject matter – namely the Robodebt Scheme – have now been made public, that is a relevant consideration for the Court in determining whether the administration of justice would be prejudiced by the disclosure of a comparatively small body of further information.

47    A further point made by Mr Cooper is that the “targeted word searches” undertaken by Mr Creedon likely captured the form of words disclosed, rather than the content of the information, which may have been expressed differently. However, having listened to the submissions of Mr Knowles by reference to the affidavit of Mr Creedon, Mr Cooper ultimately did not press that point. Finally, it was submitted that I should not accept the future inhibition submission, it being framed as “an allegation of prejudice at a high and somewhat unhelpful level of generality”.

CONSIDERATION

48    The commencing point is the statutory requirement to safeguard the public interest in open justice that is expressed at s 37AE of the FCA Act:

In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

49    This is an overarching principle in the administration of justice in this Court: Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4] (Allsop CJ). Justice Perram has reasoned that this provision does not require a “balancing exercise” to be undertaken “between the utility of the order and the interest which open justice assumes” under the FCA Act: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 (Motorola) at [6]. Section 37AG(1) confers discretionary power to make a suppression order or a non-publication order on one or more of four grounds including (a) that: “the order is necessary to prevent prejudice to the proper administration of justice”. This requirement is stringent: Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). The principles are well understood and conveniently summarised by the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; 275 FCR 377 at [8]-[9] (Allsop CJ, Wigney and Abraham JJ):

Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 (Rinehart v Welker) at [27]; Rinehart v Rinehart (2014) 320 ALR 195 (Rinehart v Rinehart) at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan) at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 (Ibrahim) at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].

50    I am not required in this matter to determine an objection to the production of Cabinet documents on grounds of public interest immunity where the Court is required to balance and resolve competing aspects of public interest; whether harm would be done by disclosure of confidential matters of state with the impairment or frustration of the administration of justice in the particular case: Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552 at [10]-[26] (Abraham J). Rather, the documents have been produced to the Tribunal as evidence in support of the contention that the Cabinet documents exemption at s 34 of the FOI Act is engaged. In this sense, the case is unusual and counsel have not been able to locate any authority that is directly on point. However, the starting point must be the importance of maintaining Cabinet confidentiality. Further, in this case there is an obvious tension between the fact that the Royal Commission examined a large number of Cabinet documents that were produced to it without a class claim of public interest immunity and the suppression of components of Cabinet documents which, in a confined manner, did not find their way into the public domain as a result of the Commission’s inquiry and Final Report. It is the Cabinet documents that are central to the findings of the Royal Commission. The collective decision-making of Cabinet in relation to the Robodebt Scheme has been exposed, analysed and criticised publicly. The Final Report of the Royal Commission is replete with hundreds of references to what was proposed to, considered by and resolved by Cabinet and the Expenditure Review Committee of Cabinet. I mention one example from the Overview of Robodebt, in the Introductory Section of the Final Report from page xxiii. The NPP for income matching was publicly announced as a policy by the Minister for Social Services in January 2015. Thereafter:

It was in this climate that the essential features of the Robodebt scheme were conceived by employees of the Department of Human Services (DHS), were put by way of an Executive Minute in February 2015 to the Minister for Human Services, Senator the Hon Marise Payne, and to Mr Morrison as Minister for Social Services. Approved by the latter, they made their way in the form of a New Policy Proposal (NPP) through Cabinet with remarkable speed. In May 2015, as part of its 201516 Budget, the government adopted a measure named Strengthening the Integrity of Welfare Payments. Described as a package for “enhancing ... fraud prevention and debt recovery and improving assessment processes” in relation to the payment of social security benefits, it was expected to save $1.7 billion over five years.

51    In turn, that summary is in part based on NPP 1 which was submitted to Cabinet and approved by it.

52    Cabinet confidentiality and relatedly public interest immunity, which operates to prohibit the disclosure of material which may reveal the deliberations of Cabinet information, is fundamental: Sankey v Whitlam (1978) 142 CLR 1 (Sankey) and Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 (NLC). In Sankey, Gibbs ACJ at 39 referred to Cabinet documents as within a class where:

[I]t has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes [sic] that there is a class of documents which in the public interest should be immune from disclosure.

53    This principle is not absolute, as his Honour further explained at 43:

…I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure forever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability the documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection – the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that thier disclosure will not really be detrimental to the public interest, an order for production will be made.

54    In Sankey the documents ordered to be produced did not disclose Cabinet deliberations. That question directly arose in NLC where the proceedings concerned a claim by the Land Council to set aside an agreement with the Commonwealth for unconscionable conduct. In the course of discovery, the Commonwealth disclosed the existence of notebooks containing notes made by officers of the Commonwealth of what was said at meetings of Cabinet, or committees thereof. Public interest immunity was engaged to prevent inspection. A primary judge of this Court ordered production and the Full Court dismissed an appeal therefrom. The High Court allowed the appeal. At 615-616, Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ said:

But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticize and publicize their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support.

The classification of claims for public interest immunity in relation to documents into “class” claims and “contents” claims has been described as “rough but accepted”. It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents. Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents.

(Footnotes omitted.)

55    At 617-618, the Court emphasised that Cabinet documents warrant a high degree of protection from disclosure in civil proceedings, concluding that:

[F]or our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different.

56    Mr Knowles in developing his third point relies on the decision of the Full Court in Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 (Black CJ, Tamberlin and Sundberg JJ). The Full Court allowed an appeal from the decision of the primary judge who made an order to the effect that the union be permitted to inspect a document, discovered in the proceeding but subject to a claim of public interest immunity on the ground that it was a letter from the Minister for Employment, Workplace Relations and Small Business to the Prime Minister. Each of the decisions in Sankey and NLC are essayed in some detail. At [43] the Court said:

Disclosure of the contents of the letter would, in our view, operate to reveal the nature of the matters considered by Cabinet and at least part of the Cabinet's deliberation of those matters. On the evidence it can reasonably be assumed, in the circumstances of this case, that the Minister would have attended the meeting and put before Cabinet the position and arguments as set out in the letter. Disclosure of the contents of the letter would therefore disclose the position of the Minister, the arguments he wished to advance, and the topic which in all probability was discussed at the meeting. Otherwise it is not possible to envisage why the letter would have been handed out to the Cabinet members at the Cabinet meeting. The position taken by the Minister in Cabinet is part of the Cabinet's deliberations. Disclosure of the Minister's position in this context would not only be contrary to the convention of the collective responsibility of Cabinet, because it identifies a particular Minister's views, but would also be contrary to the objective of ensuring that decision-making and policy development by Cabinet is uninhibited, because members of Cabinet could be hampered in the performance of their functions to candidly and comprehensively consider Cabinet proposals if subjected to publication of the details of discussions within the Cabinet room: see Northern Land Council at 615-616.

57    The fact that the Tribunal made confidentiality orders, the effect of which was to suppress disclosure of documents 9-12, is plainly not determinative of the present application for the reason that the power exercised by the Tribunal only required it to take into account, as the basis of its consideration, the principle that it is desirable that evidence given before the Tribunal be publicly available pursuant to s 34(4) and (5) of the AAT Act. Put slightly differently, the provisions of the AAT Act and the orders made by the Tribunal “cannot dictate the answer” to the separate question pursuant to s 37AG of the FCA Act: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 at [99] (Thawley, Stewart and Abraham JJ), considering an analogous provision concerned with protected information in Div 355 of Sch 1 to the Taxation Administration Act 1953 (Cth).

58    It is also the case that the orders made on 25 August 2021, pre-date the establishment of the Royal Commission on 18 August 2022 and the subsequent public inquiry into the deliberations of, inter alia, Cabinet. But it does not follow that the fact of the making of the confidentiality orders, in the circumstances in which they were made, is irrelevant to the determination of the necessity question at s 37AG of the FCA Act, informed in part by the obvious protective policy of s 64(6) of the FOI Act. What is clear is that Services Australia sought the making of confidentiality orders in relation to documents 9-12 as a precondition to the tender of those documents in support of the application to reopen its case. That is the basis on which the Tribunal made the orders. Accordingly, Mr Knowles submits that in the particular circumstances of this case if the suppression orders are not made, prejudice will be caused to the proper administration of justice in resolving the exemption claim pursuant to s 34 of the FOI Act in that evidence relied on before the Tribunal in support of that claim, and which was the subject of confidentiality orders, will become available to Mr Warren and more generally to the public. The same prejudice arises in the appeal proceeding.

59    Balanced against these considerations is the uncontroversial fact that a very considerable amount of Cabinet information, and documents relating thereto, concerning the decision-making relating to the implementation of the Robodebt Scheme, and its effects, was disclosed to the Royal Commission and released to the public domain, including information covered by the Tribunal’s order. What is now in issue are words, sentences and in some cases paragraphs in individual documents that, after detailed and careful scrutiny, remain shielded from public view. Consequently in my view, Services Australia faces a relatively heavy burden to justify the suppression of selected extracts from Cabinet documents concerning the Robodebt Scheme.

60    On the last point, Mr Knowles draws an analogy with cases of commercial confidentiality, where there is authority to the effect that commercial-in-confidence information may not be disclosed in circumstances where an inference is drawn that disclosure may or will inhibit the integrity of future litigation by commercial litigants in like circumstances. Examples are Motorola at [9] and [15] and Bayles by his litigation representative Bayles v Nationwide News Pty Ltd (No 3) [2020] FCA 1397 at [3]-[4] (Katzmann J). Those cases do not with respect provide great assistance. There is a world of difference between confidential information in proceedings between private litigants and the disclosure of Cabinet information to a Royal Commission tasked with investigating the “shameful chapter in the administration of the Commonwealth Social Security system and a massive failure of public administration”: Prygodicz v Commonwealth of Australia (No 2) [2021] FCA 634 at [5] (Murphy J).

61    Informed by these considerations I return to the three identified bases for the making of the suppression orders. As to the first, I am satisfied that if the redacted information at paragraphs [13 (a)-(g)] and [19(c)] of the McGregor Affidavit is disclosed, then prejudice will be caused to the proper administration of justice in the appeal proceeding in that the information contained therein will, or will likely, disclose a portion of the content of the Cabinet documents that are in issue (documents 1-8) and to that extent the appeal will be rendered moot. Put another way, disclosure of the content of these paragraphs will provide Mr Warren with a component of the very information that Services Australia contends is exempt from disclosure pursuant to s 34 of the FOI Act. The Full Court made orders on 18 August 2023 pursuant to s 37 AF(1)(b) of the FCA Act that until determination of the proceedings, the disclosure of documents 1-8 be prohibited on the ground that it is necessary to prevent prejudice to the proper administration of justice. The making of a further order in respect of these paragraphs is ancillary to that order and necessary for the same reason.

62    As to the second, I am not satisfied that the making of a suppression order to prevent non-publication of material that was adduced to the Tribunal in support of the application to reopen by Services Australia is necessary to prevent prejudice to the proper administration of justice in the proceeding before the Tribunal and now upon the appeal to this Court. Whilst Services Australia only produced this material to the Tribunal as evidence, or in its case further evidence, that each of documents 1-8 in issue are exempt from production on the ground of Cabinet confidentiality, it did so prior to the establishment of the Royal Commission when all of this material was not in the public domain and was properly subject to a class claim of public interest immunity on the ground of Cabinet confidentiality. At the time, the non-disclosure application made to the Tribunal rested on that solid factual foundation. Built upon it, Services Australia contended that absent the making of confidentiality orders by the Tribunal it would reconsider the application to reopen. That is the basis on which the Deputy President made the confidentiality order. That basis was substantially eroded by the course of subsequent events before the Royal Commission.

63    In this Court I am not satisfied that continuation of that status quo until determination of the appeal is necessary to prevent prejudice to the proper administration of justice either before the Tribunal or in this Court for three reasons. First, the present landscape is vastly different to what it was on 25 August 2021 when the Tribunal was persuaded to make the confidentiality orders. A consequence of the inquiries of the Royal Commission is that very significant portions of the information contained at SLM-1, SLM-2, SLM-4, SLM-5, SLM-6 and SLM-7 has entered the public domain. What is now the subject of the modified Suppression Application in Annexure A (as amended) is a carefully selected, cherry picked, disjointed array of single words, discrete sentences and paragraphs where the claim is that disclosure of this information should be prohibited, not because of its particular confidentiality or sensitivity, but rather because it is recorded in a class of documents to which public interest immunity applies. The difficulty with maintaining that argument in this case is that there has been almost wholesale voluntary disclosure of Cabinet documents in the course of the Royal Commission’s inquiry and Final Report. It is open to maintain a class claim for components of Cabinet documents, which have either been disclosed in large part or where the content of the Cabinet documents has entered the public domain: “[a] claim remains a class even though something may be known about the contents: it remains a class even if parts of documents are revealed and parts disclosed” (Burmah Oil Co Ltd v Governor and Company of the Bank of England [1980] AC 1090 at 1111 (Lord Wilberforce)). However, as explained by Gibbs ACJ in the extract from Sankey that I have set out, the Cabinet class exemption “is not absolute, and it does not endure forever” and is only maintainable when it is necessary to do so in the public interest. Services Australia has not made out why it is necessary to make the suppression order pursuant to s 37AG(1)(a) of the FCA Act limited to a fraction of the content of the documents within the Cabinet class, when there has been very significant disclosure of the Cabinet documents concerning the Robodebt scheme.

64    Secondly, the blanket suppression orders of the Tribunal covering the entirety of SLM-1 to SLM-7, the purpose of which was to prohibit disclosure, has been overtaken by subsequent events, albeit unrelated to the proceeding. Self-evidently the same orders would not now be justifiable even on the relatively low threshold of s 35(4) of the AAT Act.

65    Thirdly, the rationale that underpins a claim of public interest immunity for Cabinet documents is that the assurance of confidentiality “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”: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766 at [54] (Wigney J). In this case however, the Executive Government must have been mindful of that rationale in deciding to establish the Royal Commission tasked with the duty of inquiring into, inter alia, “the establishment, design and implementation of the Robodebt scheme, including (i) who was responsible for its design, development and establishment...”: Letters Patent 18 August 2022, establishing the Royal Commission under the Royal Commissions Act 1902 (Cth). Accordingly, the risk of inhibiting frank discussion at future Cabinet meetings is a matter of historic fact, not one that emerges materially from a failure to suppress the remaining Cabinet information in this case. This case stands somewhat apart from the rationale that otherwise strongly favours non-disclosure.

66    As to the third basis for the application, I am not satisfied that it supports the making of the suppression orders. In addition to my reasons for rejecting the second basis, I accept the submission made by Mr Cooper to the effect that this claim is ill-defined and amorphous. I am not satisfied on the evidence that disclosure of the material in documents 9-12 is likely to cause civil servants of the Executive Government in the future to be timorous and less than forthright in the formulation of policy recommendations for the consideration of Cabinet. There is not a rational basis for me to draw that inference, despite the evidence of Ms Gangemi, which for the reasons given carries little weight. As I have noted, this is an unusual case where there has to date been very significant disclosure, on a voluntary basis by the Executive Government, as to the deliberations of Cabinet in order to assist the Royal Commission in the conduct of its inquiry in order to expose the significant flaws in the Robodebt Scheme and to make recommendations designed to ensure that there is no similar repeat of public policy failure. Further, the argument fails to confront that the deliberations of Cabinet in relation to the Robodebt Scheme is a matter of historic fact, which ordinarily is sufficient to deny a claim of continuing confidentiality: Conway v Rimmer [1968] AC 910 at 952 (Lord Reid).

67     Overall, the disclosure of the selected extracts of the Cabinet documents in this case is in a peculiar class of its own.

CONCLUSION

68    For these reasons, I am not satisfied that the modified suppression orders sought by Services Australia should be made, save for documents that disclose or are likely to disclose the content of items 1-8 that remain in issue in the appeal. On the oral submission of Mr Knowles, this is limited to paragraphs [13], and [19(c)] of the McGregor Affidavit. In order to ensure that this is the only material that discloses or is likely to disclose the documents in issue, I grant liberty to Services Australia to provide any further submission as to this confined class in writing within 1 business day of the publication of these reasons, with a right of reply to Mr Warren within 1 business day thereafter. The costs of the Suppression Application are reserved, to be determined after determination of the appeal.

69    I order as follows:

Associate:

Dated:    3 November 2023