Commonwealth v Northern Land Council

Commonwealth v Northern Land Council - [1993] HCA 24 - HCA 1990 case summary — Zoe

[15]

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 [6] . 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 [7] . 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.

[22]

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. 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. Thus, the necessary exceptional circumstances may exist in cases involving allegations of serious misconduct on the part of a Cabinet minister. Sankey v Whitlam was such a case [13] . In that case, a former Prime Minister and three former Ministers were charged with unlawful conspiracy to borrow a large sum of money. Gibbs A.C.J. [14] pointed to the fact that the matters referred to in the documents, which he categorized as "state papers", related to a proposal which was never put into effect; three years had gone by and there had been a change of government. He expressed the view that if the documents were withheld "the informant will be unable to present to the court his case that the defendants committed criminal offences while carrying out their duties as Ministers". It may be observed at this point that, a fortiori, exceptional circumstances would also have existed if denial of access to the documents had impeded the defendants in the conduct of their defence. Stephen J. made reference to similar considerations [15] . He pointed out that the ordinary reasons supporting a claim for public interest immunity, "the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it". We should point out that in Sankey v Whitlam the documents which this Court ordered to be produced were not even Cabinet documents, let alone documents disclosing Cabinet deliberations.

[58]

The judgment of the Full Court discusses at length the origin of Cabinet and the steps that led to a situation where, in the words of the Court [25] : "The conventional wisdom of contemporary constitutional practice presents secrecy as a necessary incident of collective responsibility." As the historical development of Cabinet is described in the judgment of the Full Court, it would be superfluous to traverse that ground again. The Full Court notes [26] that the "concept of collective responsibility did not really emerge as an element of Cabinet government until the mid-nineteenth century". And, as their Honours observe, there is evidence, at least in British constitutional practice, that the convention has been weakening [27] . The confidentiality of Cabinet discussions has been seen as the natural correlative of collective responsibility. It is not so much that the subjects discussed in Cabinet should necessarily be treated as confidential; in many cases, what Cabinet decides is translated into political action. (Of course, there are subjects such as those relating to national security where confidentiality may be vital in the interests of the country.) Rather, confidentiality has been urged in order to support collective responsibility by keeping secret the stand taken by individual Ministers on particular matters so that the Cabinet may present a united front to the public in what it does. It has also been argued that disclosure of Cabinet documents will tend to inhibit public servants in their advice to government, an argument that has not won much support in the courts [28] . The contention that to disclose Cabinet documents will "create or fan illinformed or captious public or political criticism" [29] is also being questioned [30] . The judgment of the Full Court quotes an observation by Mr. M.H. Codd, Secretary of the Department of the Prime Minister and Cabinet [31] : "In Australia it has been said that the associated convention of confidentiality has been honoured more in the breach, but that contention has not gone unchallenged."

At a glance

Court

Decision date

Before

Source

Judgment (110 paragraphs)

Parties

Cited By (25)