Balancing the harm to the identified public interests
33 In Commonwealth v Northern Land Council (1991) 30 FCR 1 (reversed in the result but not by reference to principle in Commonwealth v Northern Land Council (1993) 176 CLR 604) the Full Court of the Federal Court identified that the balancing of the competing public interests should include consideration of at least six factors (at 38) as follows:
(1) where the contents of the documents are relied upon, the interests affected by their disclosure, e.g. national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information; where the impact of disclosure on the public interest is peculiarly within the knowledge of the executive, its contentions will be given particular weight;
(2) where the class of documents is invoked, the public interest which immunity for the class is said to protect, e.g. political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect;
(3) the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents or the documents themselves came into existence;
(4) the seriousness of the issues in relation to which production is sought, e.g. innocence of a criminal charge or governmental misconduct bearing upon the case;
(5) the likelihood that production of the documents will affect the outcome of the case;
(6) the likelihood of injustice if the documents are not produced.
34 Further, the protection of the public interest in ensuring that advice may be given to government without inhibition by reason of the risk of subsequent disclosure indicates that consideration must be given to the "the nature, and subject matter, of the documents" (North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16]).
35 At the most general level the documents in dispute concern the amendment of legislation. The Attorney-General described legislation as the highest expression of governmental public policy in order to support a submission that the documents concerned high level public policy (thereby invoking the references in the authorities to such documents warranting protection from disclosure).
36 It is one thing to accept that legislation is an expression of government policy. It is another to accept that all legislation embodies public policy at a high level. Statute law has grown by many multiples over the past decades regulating a great many matters that could hardly be described as involving high level public policy. Accordingly, the analysis should not stop at the mere recognition of the fact that the documents involve a proposal to amend legislation. The subject-matter of the legislative amendments is also important. With that in mind, it can be noted that the documents concern horse racing and the control of wagering in NSW. Specifically, the legislative amendments involved a scheme requiring those publishing NSW horse racing fields to obtain an approval to publish from Racing NSW and enabling Racing NSW to grant the approval subject to conditions, including conditions for the payment of a fee up to a maximum of 1.5% of turnover. As Betfair submitted, it is difficult to characterise this subject-matter as being at the core of traditional government functions.
37 The source of the documents is not the State of NSW. All of the documents are held by a third party, Racing NSW. Racing NSW, as noted, is a statutory body separate from and independent of the NSW Government. Racing NSW is not subject to Ministerial control and direction. It is bound to act independently in the best interests of horse racing in NSW. It frequently makes unsolicited submissions to the NSW Government in what it perceives to be the interests it represents. In consulting with Racing NSW, and disclosing to it the information in question, the OLGR must be inferred to have understood these important matters about the status and functions of Racing NSW.
38 One main source of the information contained in the documents is the officers of the OLGR. As Betfair submitted, these officers of the OLGR appeared to have represented the NSW Government in the discussions. Those officers may be described, without any disrespect, as mid-level public servants. Another source is representatives of Racing NSW, the status and functions of which have been referred to above. Representatives of Racing NSW, in the discussions, must be inferred to have acted in accordance with their own obligations and in the best interests of their employer. Those interests may or may not have aligned with those of the NSW Government. A further source is representatives of Parliamentary Counsel's Office who were involved in the drafting of the legislative amendments. I consider that it may be inferred from their functions that neither Racing NSW nor Parliamentary Counsel would be likely to be anything less than full and frank in their communications to government irrespective of any risk of future disclosure.
39 The documents, at least having regard to the description of the class in which they are said to fall, are not Cabinet documents. The class does not refer to documents prepared in or submitted to Cabinet. Rather, the description of the class indicates that the documents record: - (i) the deliberations of the working group and communications between the working group members, (ii) summaries of the working group's progress for the internal purposes of the OLGR and of Racing NSW, and (iii) communications between the OLGR and Parliamentary Counsel's Office. Accordingly, in terms of the spectrum of documents referred to by the Attorney-General these documents would fall towards or at the lower end of governmental sensitivities.
40 It is also relevant that the process of legislative amendment is complete. The amendments to the Racing Administration Act were assented to on 21 November 2006 and came into force on 1 July 2008. The Racing Administration Amendment (Publication of Race Fields) Regulationcommenced on 1 July 2008. Accordingly, the relevant decision-making process with which the documents deal has finished. Sensitivities about that process, therefore, are not engaged. The concern about candour relates to the future. As the present case involves documents of a particular nature and character, the concern about the future must be limited to documents of the same or an analogous character. In other words, the result of the balancing exercise in the present case could be relevant only to similar cases in future and not dissimilar cases (involving, for example, documents dealing with a dissimilar subject-matter, created by dissimilar people, or sought to be disclosed whilst the decision-making process was still ongoing).
41 Against this may be weighed the fact that the case is a civil case, but one involving an alleged breach of a fundamental constitutional guarantee. The documents in question concern the legislative amendments which enabled imposition of the very conditions of approval that Betfair challenges as unconstitutional. The class of documents are thus centrally relevant to, and potentially determinative of, Betfair's case.
42 Inspection of the documents confirms the above analysis. I have undertaken that inspection. I can make the following observations without disclosing the contents of the documents:
(1) Some of the documents are drafts of the Racing Administration Amendment (Publication of Race Fields) Regulationwith drafting notes ensuring that Parliamentary Counsel had correctly understood the drafting instructions which are also included in the documents.
(2) A considerable number of the documents are reports to board meetings of Racing NSW identifying Racing NSW's perception of the position of the NSW Government and its own position.
(3) Some of the documents comprise the provision of statistical and other information by Racing NSW to the OLGR.
(4) Some of the documents involve legal advice and communications about legal advice. The Attorney-General makes a separate claim for legal professional privilege over certain documents which I deal with below.
(5) None of the documents are papers prepared for Cabinet. One document prepared by Racing NSW and submitted to its Board records the contents of a proposed minute to Cabinet. It follows that this proposed Cabinet minute must have been disclosed to Racing NSW.
43 In these circumstances, and in terms of the six factors identified by the Full Court of the Federal Court in Northern Land Council (five of which are relevant to the present class claim, and which I recognise are not exhaustive), I have reached the following conclusions:
(1) The public interest affected by disclosure (that is, future candour and lack of inhibition in those advising the NSW Government) exists. Yet, on the facts of this particular case, this is a relatively weak factor. The documents concern legislative amendments to racing legislation discovered by statutory bodies independent of the NSW Government. The bodies in question are bound by their enabling legislation to provide independent advice. Their interests cannot be inferred to be aligned consistently with those of the NSW Government. The nature of their functions makes it inherently unlikely that they will be anything less than candid and uninhibited in their advice. Insofar as the documents disclose drafting queries by Parliamentary Counsel, the nature of that office also indicates that there is no real basis for a concern about future inhibition or lack of candour. Accordingly, the public interest affected by disclosure is a factor of relatively insignificant weight in the present case.
(2) The decision-making process disclosed by the documents is complete. The public interest in question protected by non-disclosure is limited to cases in the future the same as or sufficiently similar to the present case to justify its consideration. In weighing this factor regard must also be had to the bodies in question - Racing NSW and Parliamentary Counsel's Office - and my satisfaction that their functions are incompatible with any acceptance of a real risk of a future lack of candour or inhibition in their advice to government. Accordingly, this factor is also of relatively insignificant weight in the present case.
(3) The issue in relation to which production is sought does not involve the freedom of an individual from potentially wrongful conviction. But it does involve an alleged breach of a fundamental constitutional guarantee by the bodies which discovered the documents. Accordingly, this is a material factor entitled to weight in the present case.
(4) Given the nature of the issues in dispute in the principal case, there is a real likelihood that production of the documents will affect the outcome. Accordingly, this is a material factor entitled to weight in the present case.
(5) There is a real likelihood of injustice to Betfair if the documents are not produced for a number of reasons. The documents are centrally relevant to its case. The documents are in the possession of the respondents and not sought on subpoena from the State of NSW. As Betfair said, Racing NSW, at least in respect of part of its function, is the industry representative for the NSW racing lobby. The interests of Racing NSW cannot be inferred to align consistently with that of the NSW Government. They certainly cannot be inferred to be consistent with the interests of Betfair. The legislative amendments the subject of the documents enabled Racing NSW to impose the very conditions that Betfair says infringes the constitutional guarantee to its detriment. The fact that the discussions were expressed to be confidential does not alter the significance of these circumstances. All of these circumstances indicate that there would be a substantial injustice to Betfair by reason of non-production.
44 Weighing the competing public interests I am satisfied that the interest in the protection of the proper functioning of government is substantially outweighed by the interest in the administration of justice protected by production. On the facts of this case the public interest in the former might be marginally advanced by non-disclosure but even that is speculative on the evidence and the inferences able to be drawn from it. In contrast, the public interest in the administration of justice would be significantly advanced by disclosure. In other words, I am not satisfied that "it is really necessary for the proper functioning of the public service to withhold documents of [the identified] class from production" (Sankey at 39). The interest in favour of disclosure thus prevails and the claim for public interest immunity fails. Insofar as the contents of the documents have not been disclosed on the basis of public interest immunity, I propose to order disclosure.