Judgment appealed from
21 The Judge accepted that the copy letter was prepared outside Cabinet and therefore a lesser degree of protection against disclosure was afforded to it than would be the case with documents which record actual Cabinet deliberations. He considered that Mr Henderson's evidence did not establish as a fact that disclosure would reveal the deliberations of Cabinet but considered that the statement by Mr Henderson was an expression of his opinion on that matter.
22 His Honour referred to the need to balance the competing public interests and decided to inspect the copy letter. He accepted that it was probable that the contents of the letter were "involved in" the deliberations of Cabinet. His Honour also formed the view that the substantive proceeding involved a very serious allegation of what is alleged to be a gross abuse of power by a very senior public official analogous to a corruption claim against a senior police officer. He also considered that the document may be critical in the proceedings.
23 Having inspected the document his Honour formed the view that the public interest in the proper administration of justice outweighed the competing interest in non-disclosure of what his Honour characterised as a Cabinet document. His Honour formed the view that the letter was an important document which the applicant was entitled to have before the Court as part of the evidence to ensure a fair disposition of the proceeding based on all relevant and material evidence. His Honour therefore decided to make the document available for inspection.
Privilege - relevant principles
24 The nature of Cabinet responsibility and the need for confidentiality are described by Professor Hearne in his work on The Government of England 2nd ed. 1886 in Chapter VIII, especially at 218, where the author observed:
"… It is a … consequence of [the] corporate character of the cabinet that the responsibility which attaches to the acts of any one member extends to the whole body. As the individual member by his silence in public ratifies and adopts the measures which although against his wish have been adopted by the whole Cabinet, so the collective Cabinet is responsible for the official acts of its separate members. Each member is as it were the agent of his partners for the execution of his particular duties. In the political partnership as well as in the commercial partnership, and in each case on the same principles, the act of the partner binds the firm."
25 In the recent decision of the Supreme Court of Ireland: Attorney-General v Hamilton [1993] 2 IR 250 at 266, the Chief Justice referred to the principle of collective responsibility in these terms as :
"… The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by majority. The obligations to accept collective responsibility for decisions and, presumably, for acts of government as well, involves, as a necessity, the non-disclosure of different or dissenting views held by members of the government prior to the making of decisions."
26 These observations were recently cited with approval by the New South Wales Court of Appeal in Egan v Chadwick (1999) 46 NSWLR 563 at 575. In that case the Court of Appeal was concerned with questions as to the power of the Legislative Council to require the production of documents to which legal professional privilege attached and to which public interest immunity extended. The Court decided that, with the exception of executive documents other than Cabinet documents, the Court could not prohibit the Legislative Council from examining the documents but that there was a complete immunity in respect of the production of Cabinet documents. There is an extended discussion of public interest immunity by Spigelman CJ at 573-6 and by Priestley JA at 589-92. After considering the history and nature of responsible government and the principle of collective responsibility, Spigelman CJ referred to the evidence of the Director-General of the Cabinet Office and concluded at 576:
"This evidence indicates that the documents which the Legislative Council sought included documents which revealed the internal deliberations of the Cabinet. In my opinion, the Legislative Council does not have power to require the production of such documents.
In order to avoid inconsistency between the power to call for documents and one of the bases on which it has been determined that the power is reasonably necessary (namely executive accountability derived from responsible government), the power should, at least, be restricted to documents which do not, directly or indirectly, reveal the deliberations of Cabinet." (Emphasis added)
27 Similarly on the aspect of "indirect" disclosure of Cabinet deliberations the Full Federal Court in New South Wales v Ryan (1998) 101 LGERA 246, speaking of a report made solely for submission to Cabinet to assist it to consider matters of high public policy and administration concerning oyster industry safeguards, said at 252:
"Furthermore, the authorities also require weight to be given to the government's claim that disclosure of the documents would be harmful, and it is simply not correct to say that disclosure of the recommendations couched in broad terms or which are implicit rather than express, could not justify this claim. On the contrary, recommendations of any kind involved in a document submitted to Cabinet are quite likely to have been involved in the deliberations of Cabinet."
28 A helpful discussion of public interest immunity is to be found in the Sankey case. In that case the documents the High Court ordered to be produced were not documents disclosing Cabinet deliberations and indeed were not even Cabinet documents. The Court held that the documents were not within the privilege. Gibbs ACJ said, 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 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 the 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." (Emphasis added)
29 These remarks were adopted by Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ in The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617. In that case the documents in question were note books recording the actual deliberations of Federal Cabinet or committees of Federal Cabinet. The Court held that the note books were privileged and should not have been ordered to be produced for inspection by the trial Judge. In their joint judgment their Honours pointed out that the documents actually recorded the deliberations of Cabinet or a committee of Cabinet and that they were not documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet which are sometime loosely referred to as Cabinet documents.
30 After considering earlier case law their Honours said, in relation to Cabinet confidentiality, at 615-616:
"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 criticise and publicise their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. 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."
31 At 616 their Honours, after referring to the distinction sometimes drawn between "class claims" and "content claims" said:
"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. … [T]he immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must nevertheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence." (Emphasis added)
32 At 617-618 their Honours said in relation to disclosure of documents which came within the class given the highest degree of privilege:
"Documents recording Cabinet deliberations upon current or controversial matters, such as the records in question in this case, are an example. Obviously, there are extremely strong considerations of public policy weighing against their production regardless of how significant disclosure of their contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised. … However … the immunity which membership of the class confers is not absolute and that is so even if, as in the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted. … In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. …
Indeed, for 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." (Emphasis added)