Alister v R

Industrial Relations Commission (NSW)|2010-02-16|Before: Boland J, Mr P, Walton J

CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director General, Department of Premier and Cabinet [2010] NSWIRComm 21

PARTIES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier/Respondent on the motion) Director General, Department of Premier and Cabinet (Respondent/Applicant on the motion)

CATCHWORDS: PRACTICE AND PROCEDURE - Notice of motion seeking the setting aside of subpoena - Legitimate forensic purpose - Public interest immunity - Cabinet documents - Motion set aside on grounds of public interest immunity applying to Cabinet documents - Other document held to have legitimate forensic purpose.

Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404 Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 CASES CITED: Conway v Rimmer [1968] AC 910 Egan v Chadwick [1999] NSWCA 176; (1999) 46 NSWLR 563 Lanyon Pty Ltd v Commonwealth [1974] HCA 11; (1974) 129 CLR 650 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director-General, Department of Premier and Cabinet [2009] NSWIRComm 131 Ryan (Receiver & Manager of Homfray Carpets Australia Pty Ltd) v Textile Clothing & Footwear Union Australia [1996] 2 VR 235 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Mr A Hatcher of counsel with Mr M Gibian of counsel (Notifier/Respondent on the Motion) W G McNally Jones Staff, solicitors LEGAL REPRESENTATIVES: Mr R Kenzie QC with Mr P Regattieri of counsel (Respondent/Applicant on the motion) Crown Solicitor's Office

NOTIFICATION UNDER SECTION 130 BY THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES OF A DISPUTE WITH THE DIRECTOR GENERAL - DEPARTMENT OF PREMIER AND CABINET RE CLAIM FOR SALARY INCREASES

1 This matter has been the subject of earlier proceedings before the Commission. Much of the background to it is explained in a Statement by the Vice-President, Walton J, made on 6 August 2009: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director-General, Department of Premier and Cabinet [2009] NSWIRComm 131. 2 In that Statement his Honour referred to an 'agreed process' to resolve differences between the parties over the implementation of a Memorandum of Understanding ('MOU') signed by the parties on 2 October 2008. The process involved seeking my assistance in relation to any disputes concerning 'central/MOU matters' by way of conciliation and/or arbitration. In relation to conciliation, some 10 questions were raised concerning the interpretation of the MOU and the 'underlying agreement between the parties entered into in 2008' in respect of four groups of employees at the Department of Education and Training ('DET'). 3 It is unnecessary to go into any further detail about the conciliation and arbitration process at this stage except to say the parties, with the assistance of the Commission, were unable to settle their differences by conciliation. Accordingly, the issues in dispute were set down for arbitration on 1 and 2 March 2010 before me. 4 In the meantime, a summons for production was filed on 15 January 2010 by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('PSA' or 'notifier') and served on the Director General - Department of Premier and Cabinet ('respondent') seeking various documents (it may be noted that from 1 February 2010 the Industrial Relations Commission Rules 1996 were repealed and a new set of rules - the Industrial Relations Commission Rules 2009 ('IR Rules') commenced operation. In relation to civil proceedings, the Commission has adopted the civil procedure set out under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 ('UCPR'), however, local rules (the IR Rules) prevail (see UCPR Rule 1.7). What was formerly a summons for production under the old IR Rules is now a subpoena).

5 The summons/subpoena served sought production of the following documents: 1. Copies and/or originals of documents provided or shown to the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA" and the Industrial Relations Commission of New South Wales during the Crown Employees (Public Sector - Salaries 2008) Award proceedings (matters No. IRC 445 of 2008 and IRC 879 of 2008) ("the proceedings") identifying any costings or forecast savings arising from matters agreed or the subject of discussions between the parties in connection to the proceedings. 2. Copies and/or originals of documents recording or referring to any costings or forecast savings arising from matters agreed or the subject of discussions between the parties in connection to the proceedings. 3. Copies and/or originals of documents recording or referring to any costings or forecasts of the savings capable of being realised from the implementation of agency level improvement initiatives over the period of the proposed Memorandum of Understanding.

6 In a notice of motion filed on 3 February 2010 the respondent sought an order to set aside paragraphs 2 and 3 of this summons/subpoena. 7 Subsequently, the summons/subpoena was amended by the PSA on 16 February 2010 to limit the production of documents to the following:

Any document recording or referring to a policy, strategy and/or position that the component of wage increases that can be funded or otherwise supported by agency level improvement initiatives was capped at 0.5% 8 Notwithstanding the limited material sought, the respondent maintained its objections. This interlocutory decision is about whether the documents sought under the amended summons/subpoena should be produced to the PSA.

Bases of objection to production 9 In the course of proceedings it became apparent that there were six documents that would fall within the description of the summons/subpoena. Three of the documents were identified during the course of the hearing: a Cabinet Minute; a Cabinet Decision; and one covering email (with attachments) exchanged between officers of the Department of Premier and Cabinet, and with Treasury staff. Counsel had indicated that further searches were being undertaken and in a facsimile message to my Associate on 17 February the Commission was advised three further documents were found: one additional Cabinet Minute to the Cabinet Standing Committee on the Budget dated 18 September 2008; and two drafts of that Minute that are attached to emails between departmental staff dated 17 September 2008. The notifier responded, submitting that the Commission should inspect the documents for the purpose of determining whether they contained the deliberations of Cabinet and in order for the Commission to conduct a balancing exercise called for in the case of a claim of public interest immunity. In undertaking the balancing exercise, it was submitted the significance of the documents for the purpose of the proceedings was an issue. 10 In relation to the Cabinet Minutes and the Cabinet Decision the respondent objected to their production unless the notifier was able to establish a legitimate forensic purpose for seeking production and also on public interest immunity grounds. In relation to the covering email, the objection was confined to legitimate forensic purpose.

Legitimate forensic purpose 11 To establish a legitimate forensic purpose: a. it must be shown that it is 'on the cards' that the documents sought would materially assist the respondent's case: Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404 at 414 per Gibbs CJ; b. the documents must possess more than mere relevance: Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162; Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536; c. the documents must be necessary for the respondent to fairly dispose of the proceedings: Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 at 556. 12 The documents sought cannot be requested merely to check whether they are of relevance; this would constitute a 'fishing expedition' (Alister v R per Gibbs CJ at 414, Brennan J at 439) and more akin to discovery than a request for relevant documents.

13 The PSA agreed that in civil cases the test for legitimate forensic purpose required the requesting party to demonstrate that there were definite, concrete or reasonable grounds to believe that the material called for would materially or substantially assist the requesting party's case. 14 The PSA submitted that the amended summons/subpoena met this test because it presses for production of documents specifically relating to the core issue of proceedings, namely, whether the MOU between the parties was agreed on the basis of a government policy limit of 0.5 per cent to agency cost savings. 15 The PSA submitted that this policy existed at the time of the 2008 negotiations, that both sides were aware of it and relied upon it. The documents sought by the amended summons/subpoena were, therefore, for a legitimate forensic purpose. 16 In developing the PSA's contentions, Mr A Hatcher of counsel referred to the 'Questions For Determination" to be put to the Commission and the preamble, which relevantly states: NOTE: the following questions concerning the interpretation of the Memorandum of Understanding ("MOU") and the underlying agreement between the parties entered into in 2008 are framed by reference to the documents prepared by DET for the conciliation conference on 17 November 2009 in relation to the following four groups of employees. ... 17 Question 1 is in the following terms: DET has assigned a zero value … or a negligible value … to the "central reforms" agreed to in the MOU, with the result that it identifies the amount of 1.5% or slightly less than 1.5% as the amount required to be covered by employee cost offsets pursuant to clause 6 of the MOU. Is this the correct approach, or was the MOU agreed on the basis of a valuation of the "central reforms" and a limitation of the quantum of agency employee costs offsets such as to make the relevant amount to be recovered by DET under clause 6 of the MOU 0.5% or less ? (emphasis added) 18 The question was framed by reference to the PSA's position to be taken in the arbitration proceedings, namely: [T]hat it was taken as a premise by the parties as a result of a statement of government policy which was disclosed in the proceedings that agency initiatives or agency cost offsets were limited to a cap of 0.5 per cent. That is, we contend that the Crown represented in the proceedings - and that representation has never changed or withdrawn and was relied on as a premise for the negotiations - that government policy was that agency level initiatives were to be capped at half to one per cent. 19 Mr Hatcher referred to the terms of the amended summons/subpoena and submitted: Bearing in mind that the factual premise that we want to establish is that was the policy or position or strategy of the government, ipso facto any document that exists which records or refers to the existence of that cap will support our case. That is, to the extent that we are contending that that cap existed and was government policy and there is a document that says that, that is records or refers to the existence of that policy or position, it must materially assist our case in so far as we are attempting to establish that factual premise for the proposition we want to advance in connection with question 1. 20 For the respondent, Mr R Kenzie QC with Mr P Regattieri of counsel, contended that the PSA had not established a legitimate forensic purpose in seeking the documents, submitting that essentially the PSA had embarked on a 'fishing expedition'. It was further submitted that evidence of the Government's subjective intentions or motives was not relevant to the proceedings: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337; Ryan (Receiver & Manager of Homfray Carpets Australia Pty Ltd) v Textile Clothing & Footwear Union Australia [1996] 2 VR 235. Therefore, the material could not materially or substantially assist the PSA's case. Consequently, no legitimate forensic purpose could be demonstrated. 21 It seems to me that the PSA has established a legitimate forensic purpose in seeking the documents in the amended summons/subpoena. The PSA intends to argue that it was government policy at the time of the 2008 negotiations, which culminated in a Recommendation of the Commission, that agency cost offsets were limited to a cap of 0.5 per cent. It is to be noted that the Commission's Recommendation stated as follows: Before setting out the terms of the recommendation it is necessary to note some relevant background. The Government's wages policy provides that in the absence of cost savings only 2.5 per cent is available for salary increases. Increases in addition to 2.5 per cent, however, remain available through negotiated employee related cost saving and reforms. In relation to the Government's offer of 4.0 per cent in the MOU it was based on the 2.5 per cent unfunded portion plus 1.5 per cent to be negotiated in the central forum of negotiations that had been proceeding in the Commission, with a part of that 1.5 per cent being reserved for negotiations at agency level. The parties had reached agreement as to the scope of matters that would be the subject of agency level bargaining during the life of the MOU, except that there was no agreement on how much of the 1.5 per cent was to be reserved for agency level bargaining.

If the parties were to accept the Commission's recommendation it will mean the government will have achieved cost savings to fund, in part, the increase above 2.5 per cent. The Commission is not at liberty to disclose the amount of cost savings because of the government's insistence on confidentiality. The government in its offer did not make it a condition for payment of the 4.0 per cent increase that agency level improvement initiatives were first to be negotiated and costed. It seems to me, therefore, that it is open to the parties to negotiate outcomes at the agency level that will produce cost savings to fund the difference between what has been achieved under the Commission's recommendation and what is necessary to fund the remainder of the 4.0 per cent increase.

The agency level negotiations that have been agreed will obviously be an important vehicle for the government to achieve ongoing reform. The Commission will make resources available to monitor those negotiations and would propose the process set out by the Full Bench in Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 156 for addressing any disputes or difficulties that arise at the agency level. Such a process, suitably tailored, should be incorporated in any MOU if the Commission's recommendation is accepted. At the heart of that process will be a requirement to satisfy the Commission that an appropriate level of cost savings have been achieved or are achievable at the agency level. The PSA will be required to cooperate in that process. In other words, as far as the Commission is concerned agencies will be entitled to negotiate and implement improvement initiatives that, at a minimum, will produce cost savings to fund the difference between what has been achieved under the Commission's recommendation and what is necessary to fund the remainder of the 4.0 per cent increase. The availability of a dedicated process under the auspices of the Commission will facilitate the achievement of the necessary cost savings.

The parties accepted the Commission's Recommendation. 22 I also note the evidence of Rachel McCallum, Acting Deputy Director General (General Counsel) of the Department of Premier and Cabinet: I am informed by Ms Milkins and believe that in salaries cases that the Crown is involved in, Crown agencies are required to identify and seek the approval of the Cabinet Standing Committee on the Budget on the potential areas of employee-related savings that are consistent with the Government's Wages Policy and might be proposed by the Crown in the proceedings. I am informed by Ms Milkins and I believe that the areas of potential costings/savings that are approved comprise, in summary, the 'bargaining parameters' for the Crown in the proceedings.

In respect of the Minutes and Decisions referred to above …, I am informed by Ms Milkins and believes that such Minutes involve either applications to the Cabinet Standing Committee on the Budget for a variation of the Crown's bargaining parameters in the course of the proceedings or to seek its decision in respect of the final recommendations made by the Industrial Relations Commission in the proceedings. 23 It is apparent from the evidence in these interlocutory proceedings that there were documents in existence at the time of the 2008 proceedings before the Commission that addressed the Government's position in respect of those proceedings. Indeed there was a Minute to the Cabinet Standing Committee on the Budget dated 18 September 2008, (that is, after the Recommendation was issued by the Commission) that it is apparently accepted by the respondent, given the terms of the summons/subpoena, recorded or referred to a cap on agency level initiatives at 0.5%. 24 Agency level bargaining and the cost savings to be achieved through that process were a key aspect of the negotiations and of the Commission's Recommendations. It is at least in prospect that the Government would have considered and determined a position in respect of agency level negotiations and cost offsets. In those circumstances, the PSA has reasonable grounds to believe that the material called for would materially or substantially assist its case that, at the relevant time, the Government had accepted or determined that there should be a cap on agency negotiated cost offsets of 0.5 per cent. 25 As Mr Hatcher submitted, even if the Commission were to order the production of the relevant documents, the Commission may ultimately decide that those documents are inadmissible or are irrelevant in making any determination or that they do not assist in any of the interpretation questions which arise. 26 As to the respondent's submissions regarding the irrelevancy to the interpretation of the MOU of the Government's subjective intentions, which may or may not be revealed in the documents called for, that is a matter to be determined at hearing. If it were to be determined at this stage against the notifier, it may mean the notifier is denied the opportunity of using the document for a legitimate forensic purpose other than as an aid to interpretation, for example, cross-examination of a witness. 27 At this stage, however, the Commission only need be satisfied about whether there is a reasonable basis for the belief that the documents would materially or substantially assist the PSA's case. I am so satisfied.

28 Accordingly, the respondent is to produce the covering email referred to earlier, firstly for the Commission's inspection. The Commission would be assisted in knowing which parts of the email should be redacted, if at all, and the reasons why.

29 As indicated earlier, the respondent objected to the production of the Cabinet Minutes and the Cabinet Decision on public interest immunity grounds.

30 Ms McCallum deposed that the Cabinet Minutes and Cabinet Decision were Cabinet documents. The Cabinet Minutes were Minutes submitted to the Cabinet Standing Committee on the Budget on matters arising in the 2008 proceedings before the Commission. The Cabinet Decision was a decision of the Cabinet Standing Committee on the Budget in relation to matters arising in the 2008 proceedings before the Commission. It is not clear just what the nature of the email is except that it appears to be a covering email exchanged between officers of the Department and with Treasury staff discussing attached draft Schedules to Cabinet Minutes. 31 A Cabinet Minute is the submission made to Cabinet or a Committee of Cabinet by the Minister responsible for the subject discussed in the Minute. Ms McCallum said that the Minute constitutes the submitting Minister's principal communication with Cabinet or its Committees to assist its deliberations on the matters before it. The Minute constitutes the primary source of information before the Cabinet on those matters. 32 Ms McCallum further deposed: The proceedings of the Cabinet in New South Wales are conducted in accordance with strict confidentiality. Procedures for the handling of Cabinet documents also require strict confidentiality. …

The Cabinet is constituted by the Ministers of the State of New South Wales. It is the principal policy-making and administrative institution of the Executive of the Government of New South Wales. Therefore it is a forum for the consideration and discussion of significant and sensitive issues of public policy and administration. The proceedings of the Cabinet are conducted in secret and all New South Wales' Cabinets have required strict confidentiality procedures for the handling of Cabinet documents. For example, all copies of all Cabinet Minutes are individually numbered and their distribution recorded, and copying of them is restricted.

Some of the business of Cabinet is transacted by Committees of Ministers, known as Cabinet Standing Committees. The proceedings of such Committees are considered to be proceedings of Cabinet and their decisions are Cabinet decisions. References to "Cabinet" I make below should be taken to apply equally to such Committees.

The Cabinet Standing Committee on the Budget is a Committee of Cabinet that is charged with the responsibility of overseeing the financial management of the State, the Budget process and ongoing expenditure across Government. The Committee is comprises by Ministers and its proceedings, and documents received and handled by it, are conducted in the same confidential manner as the proceedings of the Cabinet itself.

The operations of the Cabinet and Committees of Cabinet are governed by the principle of collective responsibility. Ministers are expected to accept and express support for decisions made by Cabinet. This is especially so in the case of the Minister responsible for administering the decision. From time to time, the advice of the Minister contained in a Cabinet Minute or other document submitted to Cabinet is rejected. Even in such cases, the Minister is (subject to law) expected to accept and defend the decision or resign from Cabinet.

Confidentiality is necessary to support the collective responsibility of all members of the Cabinet for its decisions. If records of Cabinet meetings or other documents that are submitted to Cabinet for deliberation were made public, this could show that a particular Minister had argued against the ultimate decision of Cabinet, thereby undermining the collective responsibility of Ministers.

I am informed by Ms Milkins and I believe that the terms and conditions of NSW Government public servants, as set in such instruments as the Crown Employees (Public Sector - Salaries 2008) Award, are considered by the Government to have such major workplace relations and financial ramifications for the State of New South Wales as to require approval of the Cabinet Standing Committee on the Budget for both: (a) the 'bargaining parameters', including any workplace reforms that may be proposed or considered, that apply to the Crown in any industrial proceedings that determine such terms and conditions (as discussed at paragraph 11 above); and (b) any final agreement entered into in respect of such terms and conditions.

Minutes put to the Cabinet Standing Committee on the Budget on the issue of 'bargaining parameters' in wages matters are currently placed before Cabinet by the relevant portfolio Ministers or by the Department of Premier and Cabinet. I am informed by Ms Milkins and believe that at the time that the Minutes the subject of this affidavit were placed before Cabinet in 2008 a number of Ministers were involved in the decision-making process, including the development and approval of all Minutes concerning bargaining parameters for the proceedings, before such Minutes were brought forward to the Cabinet Standing Committee on the Budget by the Department of Premier and Cabinet.

Disclosure of the Cabinet documents referred to … above, including any costings or forecast savings information … could undermine the principle of collective responsibility of Ministers for decisions made by Cabinet.

The decisions made by Cabinet often involve matters of controversy and complexity. Good decision-making is only possible if all Ministers can freely express their views and can freely explore relevant issues. It would inhibit Ministers' capacity to do this if their communications - which from time to time may be inconsistent with the final decision made by Cabinet - were liable to disclosure. It is vital that Ministers feel able to include in Cabinet Minutes and other documents that are submitted to Cabinet by Ministers, without inhibition, such matters as they consider appropriate. Ministers, and the Departments for which those Ministers take responsibility, should not be placed in a position where they must draft documents for consideration by Cabinet taking into account the consequences that may flow from publication of those documents.

My concern regarding the limitations of Minister's capacity to freely express their views and explore relevant issues, should documents placed before Cabinet be released, applies equally to any draft Cabinet Minutes, draft Schedules to Cabinet Minutes and any communications entered into between public servants exchanging other information brought into existence for consideration in formulating such Minutes to Cabinet, such as the material identified … above.

In my opinion it is vital to the development of public policy and to the good administration of the government of the State that the Cabinet be able to receive confidential advice and strategy on the matters that come before it for consideration. In order to achieve this, it is necessary that the Cabinet and its Ministers be able to be confident that advice and strategy that Ministers and senior Departmental officers put before Cabinet will remain confidential. From my experience in my past and present positions, I would expect that the disclosure of Cabinet's deliberations, including any documents that are the subject of such deliberations such as the Cabinet Minutes in this case, would tend to result in an indirect disclosure of the deliberations of Cabinet and for that reason would tend to mute and impede Cabinet discussions and deliberations on future matters, including unrelated matters.

In addition, if drafts of Cabinet Minutes, even drafts that are not ultimately provided to Cabinet, were liable to being produced then the person preparing the draft may present the information in such a way as to minimise controversy in the event that the document is revealed by either omitting discussion of any options that may be controversial or couching the discussion in vague terms so as to avoid criticism. The result would be that Cabinet and Ministers would no longer have a reliable and comprehensive form of written advice to consider on important matters of public policy and administration.

Further, Cabinet Minutes by their nature fall into a class of documents that are accorded a high level of protection and in respect of which it is accepted ought not be disclosed until such time as they are only of historical interest. Given that the agreement in respect of which the costings are sought under the Summons for Production is the subject of these current proceedings before the Industrial Relations Commission I do not consider that the Cabinet Minutes or Cabinet Decisions are now only of historical interest.

To the extent that any of the workforce reforms proposed were finally approved by Cabinet Standing Committee on the Budget to form part of the initial or subsequent bargaining parameters of an agency, it is also my opinion that it would be contrary to the public interest for the costings of such workforce reforms to be disclosed.

Ms Milkins informs me and I believe that it is not the Crown's practice for the costings that are contained in the 'bargaining parameters' approved by the Cabinet Standing Committee on the Budget to be made available to employee representatives as they are the core of the Crown's bargaining position in negotiating wages and workplace reforms. Revealing the costings may significantly damage, and cause significant prejudice to the Crown's ability to negotiate in such proceedings.

Ms Milkins informs me and I believe that the subsequent public release of such costings would also be contrary to the public interest as: · The costings and related workplace reforms are developed for approval of bargaining parameters, or variations on such parameters in the course of proceedings, for without prejudice negotiations. They may cover matters that are direct changes to award/agreement provisions or legislation and could relate to staffing levels, human resource policies, rostering arrangements, workforce composition, work intensity or job redesign that leads to savings. · The release of detailed costings and their related workplace reforms in such circumstances may lead to subsequent workplace disputation. · The release of costings and proposed reforms without the full background and context of the savings measure or negotiated package leaves them open to misinterpretation. This may create expectations or unnecessary disputes where there are subsequent negotiations with other groups in the organisation or in other agencies. · The circumstances of each negotiation will vary according to the matter being discussed, the relationship, type of industrial instrument and workplace history. Agencies will take these matters into account when determining what is discussed with the unions and what if any detail on costings and workplace reforms are disclosed. · Costings and reforms may also relate to state owned corporations that are competing with other companies. The public release of the costings would reveal commercial in confidence information that would not be available to their competitors. In particular, I am informed by Ms Milkins and believe that, while the Memorandum of Understanding that was entered into between the parties to the Award proceedings on 2 October 2008 provided for agencies to achieve employee related savings through the implementation of central reforms and agency level reforms, not all central reforms and agency reforms have been finalised and some are the subject of ongoing proceedings, including these proceedings, as well as ongoing negotiations with the Applicant.

33 The respondent objected to the Cabinet Minutes and Cabinet Decision on the grounds that they are Cabinet material and granted the highest protection from production: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, although this protection is not absolute. 34 As noted by Gibbs ACJ in Sankey v Whitlam at 43: For these reasons 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 for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled 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 their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made. Moreover no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf. Conway v. Rimmer [1968] AC 910, at p 953).

35 The respondent submitted that: a. publication of the material would be injurious to the public interest (Gibbs ACJ in Sankey v Whitlam at 39-40); b. the production of some of the material may reveal Cabinet deliberations inconsistently with the doctrine of collective responsibility, which may fan ill informed or capricious public or political criticism to the detriment of the business of government; c. the costings and related workplace reforms were developed for negotiations; they may cover matters related to changes to legislation or awards and could concern staffing, human resource policies, rosters, workplace composition or work intensity in relation to savings resulting in workplace disputes; d. the release of this material without context and background leaves them open to misinterpretation; e. circumstances of each negotiation for each department vary; and f. costings may relate to State owned entities in competition with private enterprise (commercial confidence information revealed). 36 On a number of occasions the High Court has pronounced on the principles to be applied in determining whether public interest immunity would attach to the documents in question: a. The Court must balance the public interest in withholding the production of a document, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence: Sankey v Whitlam ; b. The balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - that is, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of the class, and, on the other hand, that there are or are likely to be documents which contain material evidence: Alister v R at 414; c. 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. Where such exceptional circumstances do exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure.… Having regard to the strength of the claim for immunity, a judge ought not order the disclosure of the contents of documents of that class unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings: Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 619; d. It has never been doubted that it is in the public interest that 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: Northern Land Council at 615; e. The law recognises that there is a class of documents which in the public interest should be immune from disclosure. The class includes Cabinet Minutes and Minutes of discussions between heads of departments … papers brought into existence for the purpose of preparing a submission to Cabinet … and indeed any documents which relate to the framing of government policy at a high level. According to Lord Reid, the class would extend to 'all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies': Conway v Rimmer [1968] AC 910 at 952: Sankey v Whitlam at 39-40 per Gibbs ACJ; f. In the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted: Northern Land Council at 617-618; g. It is doubtful whether the disclosure of the records of Cabinet deliberations upon matters that remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights: Northern Land Council at 618; h. The governmental process directed to obtaining a Cabinet Decision upon a matter of policy and Cabinet's Decision upon that matter should not, in the public interest, be disclosed by the production of Cabinet papers including what I would describe as papers which have been brought into existence within the governmental organisation for the purpose of preparing a submission to Cabinet. Such documents belong to a class of documents that, in my opinion, are of a nature that ought not to be examined by the Court, except, it may be, in very special circumstances: Lanyon Pty Ltd v Commonwealth [1974] HCA 11; (1974) 129 CLR 650 at 653 per Menzies J. 37 The notifier submitted that I should inspect the Cabinet Minutes and Decision for the purpose of undertaking the balancing exercise required by Sankey v Whitlam. Menzies J in Lanyon, however, was of the opinion that a court should not examine the documents except in very special circumstances. 38 I am well aware of the reasons for the notifier's desire to obtain the relevant documents. It wishes to see whether the documents will materially assist its case that at the relevant time it was government policy that agency initiatives or agency cost offsets were limited to a cap of 0.5 per cent.

39 On the other hand, I agree with Mr Regattieri that the documents the subject of the summons/subpoena, that is, the Cabinet Minutes and Cabinet Decision, were prepared and/or used for Cabinet deliberations and by their nature would expose those Cabinet deliberations and, therefore, justify them being labelled as 'Cabinet documents' thereby attracting the immunity as described by Spigelman CJ in Egan v Chadwick [1999] NSWCA 176; (1999) 46 NSWLR 563 at [48] - [71]. At [56]-[57] the Chief Justice stated: [56] When the issue of access to Cabinet documents has arisen in the context of claims for public interest immunity in the course of litigation, the Courts have recognised the significance of Cabinet confidentiality as an application of the principal of collective responsibility. However, a distinction has been made between documents which disclose the actual deliberations within Cabinet and those which are described as "Cabinet documents", but which are in the nature of reports or submissions prepared for the assistance of Cabinet. With respect to the former the High Court has said: "It has never been doubted that it is in the public interest that 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 … Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government." ( The Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 615. [57] The documents in issue in that case were in fact documents which recorded the actual deliberations of Cabinet. The revelation of such material is inconsistent with the doctrine of collective responsibility. Documents prepared outside Cabinet for submission to Cabinet may, or may not, depending on their content, manifest a similar inconsistency. (See also Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 at 770; Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 432-433). 40 Further, the documents relate to current and controversial matters and are not sufficiently removed in time from the circumstances for which they were created to accord them a status of 'only of historical interest'. 41 There is a very great reluctance on the part of courts to require production of Cabinet documents. Revelation of the documents in this case would be inconsistent with the doctrine of collective responsibility: Egan. In the light of Ms McCallum's evidence, I am unable to accept that in the present case, and given the nature of it, that the 'quite exceptional circumstances' exist to require the Crown to produce the documents in question. Order

42 For the reasons given, I order that the summons/subpoena be set aside other than in relation to the covering email referred to in this decision. In this last respect, the parties should note what is said at [28]. ________________________________

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At a glance

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Decision date

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Judgment (41 paragraphs)

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Cases Cited (18)