Crown Employees (Public Sector - Salaries 2008) Award [2008] NSWIRComm 142

CORAM: Boland J President; Walton J Vice-President; Schmidt J; Sams DP; Murphy C

Award - Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for new award

CATCHWORDS: Practice and Procedure - notice of motion - summons for production of documents by the Secretary of the Treasury - claim for public interest immunity - order sought to set summons aside - whether documents sought had legitimate forensic purpose - whether public interest immunity could attach to documents sought - class and contents of documents considered - balancing exercise - public interest in confidentiality being maintained and public interest in disclosure of documents considered - summons set aside in part

Evidence - public interest immunity - Ministers' submissions to Cabinet

LEGISLATION CITED: Industrial Relations Act 1996

Alister v The Queen (1983) 154 CLR 404 Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Commonwealth v Construction, Forestry, Mining and Energy Union and Another (2000) 98 FCR 31 Egan v Chadwick & Ors (1999) 46 NSWLR 563 CASES CITED: Lanyon Pty Ltd v The Commonwealth of Australia (1974) 129 CLR 650 The Commonwealth of Australia v Northern Land Council & Anor (1992) 176 CLR 604 New South Wales v Ryan (1998) 101 LGERA 246 Re Howard and the Treasurer of the Commonwealth of Australia (1985) 7 ALD 628 Sankey v Whitlam & Ors (1978) 142 CLR 1 Young v Quin and Others (1990) 59 ALR 225

APPLICANT ON MOTION (SECRETARY OF TREASURY): Mr PA Regattieri of counsel SOLICITORS: IV Knight, Crown Solicitor LEGAL REPRESENTATIVES:

RESPONDENT ON MOTION: Mr A Hatcher of counsel with Mr M Gibian of counsel SOLICITORS: WG McNally Jones Staff

• 33 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J, PRESIDENT WALTON J, VICE-PRESIDENT SCHMIDT J SAMS DP MURPHY C

CROWN EMPLOYEES (PUBLIC SECTOR - SALARIES 2008) AWARD

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for new award

1 The Public Service Association of Professional Officers' Association Amalgamated Union of New South Wales ('the PSA'), seeks a new award, to be known as the Crown Employees (Public Sector - Salaries 2008) Award, which will annually increase the salaries and allowances fixed by the Crown Employees (Public Sector - Salaries 2007) Award ('the 2007 Award') by 6.5 per cent in July 2008, 2009 and 2010. 2 The grounds and reasons advanced in support of the claim include that the nominal term of the 2007 Award expires on 30 June 2008 and that the claimed increases are justified under the Commission's Wage Fixing Principles, particularly Principle 10, Special Case and Principle 6, Work Value Change. It is also claimed to be in the public interest, that public sector employees receive fair and reasonable salaries and that the following considerations support the claim:

(ii) Improvements in the quality and quantity of work and service delivery.

(iii) Employee contributions to public sector restructuring processes, departmental amalgamations and the development of synergies in internal service provision.

(iv) The need for economic adjustments in the light of past, current and projected cost of living and interest rates increases.

(v) The level of wage and salary movements in the community generally.

(vi) The need to increase the attraction and retention of employees having regard to the ageing workforce and the effect of the former superannuation schemes in encouraging early retirement of current employees.

(vii) The need for a continuation of the pattern of long-term, sector-wide salary awards which have since 1993 provided a stable industrial relations framework for the NSW public sector free of significant industrial disputation. 3 The matter has been before the President, Justice Boland for directions and is listed for hearing before the Full Bench, later this year. 4 In April 2008, a summons for production of certain documents was served on the Secretary of the Treasury. In May, the Secretary of the Treasury filed a notice of motion seeking orders that the summons be set aside. It was claimed that the summons was lacking in legitimate forensic purpose and sought material, the production of which was objected to, on public interest grounds. 5 When the matter came on for hearing, the parties announced that an agreement had been reached in relation to the production of 'Budget Allocation letters', in respect of which we made consent orders. The other documents sought fell into two broad classes, described for convenience by the parties as 'Results and Services Plans' and 'Efficiency Improvement Plans' of some twelve Departments and instrumentalities, from 2005 to date. The objection to the balance of the summons was maintained. 6 The hearing was adjourned to enable the Secretary of the Treasury to lead further evidence. The parties also filed further submissions, as to that evidence. The evidence

7 The Secretary of the Treasury relied upon affidavits sworn by the Director General of the NSW Department of Premier and Cabinet, Ms Robyn Kruk; the Deputy Secretary, Budget and Financial Management at the Office of Financial Management of the Treasury of New South Wales, Mr Mark Ronsisvalle; the Senior Director, Financial Management and Reporting at the New South Wales Treasury, Mr Brian Pellowe and an Assistant Crown Solicitor, Ms Anthea Tomlin. 8 The PSA sought the opportunity to cross-examine Ms Kruk and Mr Ronsisvalle on their affidavits. The application was opposed and was refused, the Full Bench taking the view that in the ordinary course, such cross-examination is not permitted and no case had been established permitting any departure from the ordinary course. (See Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681 and Young v Quin and Others (1990) 59 ALR 225 at 227 and 230-31). 9 The PSA relied upon an affidavit of Mr Nathan Keats, solicitor, annexing a NSW Government document entitled, 'A new direction for NSW State Plan' and a Treasury Circular of 29 August 2006, concerning Results and Services Plans. These documents were relied on to advance an argument that the Plans the subject of the summons were not in fact documents which were the subject of Committee, or Cabinet deliberation. 10 There was an issue between the parties as to whether or not the evidence led by the Secretary of the Treasury had left unclear the question of whether the documents in issue between the parties had gone before the Cabinet, or a Committee of the Cabinet, or were ever considered, other than by Treasury. The respondent sought and was granted an opportunity to clarify that aspect of the evidence. That application was not opposed and further affidavits sworn by Ms Leigh Sanderson, the Deputy Director General (General Counsel) of the Department of Premier and Cabinet and by Mr Ronsisvalle, were subsequently received. The Crown's case 11 It was the case put for the Secretary of the Treasury that production of the documents sought could only be required if a legitimate forensic purpose for their disclosure had been shown. That had not been established by the PSA, in relation to the documents remaining in issue between the parties. 12 It was argued that the documents sought had been prepared for deliberations in Cabinet. The documents were Cabinet documents, being papers relating to the annual State Budget, with the 2008 Budget having only recently been handed down. In considering the documents, no distinction should be drawn between Cabinet and a Committee of Cabinet, working in a process, whereby the State Budget is ultimately produced. 13 Further, given their nature, the documents were apt to be misleading or misunderstood, given that they do not themselves represent the final budgetary process outcome contained in the State Budget. 14 Here, in evidence, was an opinion, expressed in similar terms to that expressed by the Director General of the New South Wales Department of Premier and Cabinet, in Egan v Chadwick & Ors (1999) 46 NSWLR 563. That opinion was there accepted by Spigelman CJ at 576, as indicating 'that the documents which the Legislative Council sought included documents which revealed the internal deliberations of the Cabinet'. It was argued that the Commission would come to a similar conclusion in relation to the documents here in issue. 15 It was also submitted that the evidence here led, also demonstrated that the documents were used for Cabinet deliberations and by their nature would expose such deliberations, thereby justifying them being labelled as 'Cabinet documents', attracting the immunity described in at 576. 16 It followed that in this case, the balancing exercise required to be undertaken by the Commission, when public interest immunity privilege was claimed, would lead to the summons being set aside. 17 After further evidence was led, it was submitted that it was not necessary that all of the documents in issue had gone before the Cabinet or a Committee, for the privilege to be attracted. The test was whether the documents had been prepared, or brought into existence, for the purpose of preparing a submission to Cabinet, or as a part of a Cabinet process. It had been established on the evidence that the documents were prepared for such submission, as a part of the annual State Budget process. Thereby, the documents raised matters for policy decision by the highest level of Government. 18 The harm to the public interest of disclosure of the documents had been established on the evidence given the matters of ongoing controversy dealt with in the documents. It followed that the orders sought would be made. The PSA's case

19 The PSA argued that it had a legitimate forensic purpose in seeking the production of the disputed documents. That depended on the apparent relevance of the documents to the issues arising to be determined in these proceedings. The issues in contest were broad, namely, a claim that there had been improvements in the productivity, efficiency, quality of work and service delivery in the NSW public service. On their face, 'it was on the cards', that the documents sought might assist the PSA's case, given the evidence led by the Secretary of the Treasury. That evidence showed that the documents were clearly relevant to the matters in issue between the parties. 20 Public interest immunity was claimed on the basis that the documents were either 'records of Cabinet deliberations', or 'reports and submissions to Cabinet.' It was argued that neither claim was established on the evidence when properly analysed. As to the further evidence which had been led by the Crown, it was submitted that it had not addressed the question of whether any of the documents sought had been the subject of Cabinet deliberation and that the only inference, therefore, was that they had not been the subject of deliberation by Cabinet or a Committee.

21 It was not disputed that documents recording actual deliberations of Cabinet are to be accorded the highest level of protection, in order to protect the principle of collective responsibility in Cabinet decisions. Documents produced outside of Cabinet, even if the subject of cabinet deliberation, attracted a more limited immunity. Unless they recorded or disclosed the content of Cabinet deliberations, or the voting position of particular Ministers, the principle of collective responsibility could not be undermined by their disclosure. 22 The evidence showed that the Results and Services Plans are key documents relating to performance management of agencies, linking performance with Government priorities set out into the State Plan. They are not solely or principally for the purpose of Cabinet deliberation, but are used internally by agencies in their own planning and service delivery processes. They also provide an information base for cabinet submissions, separate from submissions seeking funding. 23 There was no suggestion on the evidence that proposed Results and Services Plans were submitted to or considered by Cabinet, or Committees. Agreed Results and Services Plans reflected decisions already announced, which could not possibly be subject to protection. 24 The evidence was that some Results and Services Plans were considered by the Budget Committee, but that was not evidence that the Committee deliberated upon them, rather than simply receiving them for information. 25 As to Efficiency Improvement Plans, the evidence was that they were prepared by agencies and submitted to Treasury; if there were concerns, a revised Plan was negotiated with Treasury and only if a dispute could not be resolved, was the matter referred to the Expenditure Committee. On the evidence, only 13 of 48 plans sought had been submitted to the Committee in full and a further 15, in summary. There was no evidence of Cabinet deliberation about such Plans. 26 Nor had any case been made out establishing any clear basis upon which production and inspection of the documents would be injurious to the public interest. The documents were central to the PSA's case, advanced on the basis of improvements in productivity and efficiency. In any event, danger of premature or ill-informed comment had passed in relation to most of the documents sought. That risk could only arise in relation to the 2007-08 year documents. 27 Inspection of the documents was urged and finally, it was argued that conditions on access could be imposed, which could include partial production and confidentiality measures, which could ensure that there was no injury, to the operation of Government. 28 It followed that the motion would be dismissed. The Crown's Reply

29 It was argued that there was no call for inspection of any of the documents. Given the evidence, there was no uncertainty as to the nature, or application of the documents. The evidence showed that some aspects of the documents remained highly confidential, concerning future policy options and sensitive matters concerning Commonwealth-State financial relations and proposed areas for agency savings, remaining the subject of ongoing Government consideration. Other aspects of the documents remained current and controversial, with disclosure inhibiting full and frank Cabinet discussion of future plans. 30 The documents could not be separated into discrete parts as the PSA suggested. They constituted Ministers' principal communications with Cabinet or its Committees and thereby clearly attracted public interest immunity. The applicable law

31 There was no real issue between the parties as to the applicable law. It was common ground that if a legitimate forensic purpose was established for the documents summonsed to be produced, consideration then had to be given as to whether the documents were of a kind to which public interest immunity could attach. If they were, a balancing exercise then had to be undertaken by the Court, to determine whether production of the documents should be required. In Alister v The Queen (1983) 154 CLR 404, this process was explained by the High Court at 412:

Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. 32 In Sankey v Whitlam & Ors (1978) 142 CLR 1 at 97, it was said by Mason J, as he then was:

In Conway v Rimmer , Lord Reid said [1968] AC, at p 952: "Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-formed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. And that must, in my view, also apply 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. Further it may be that deliberations about a particular case require protection as much as deliberations about policy. I do not think that it is possible to limit such documents by any definition. But there seems to me to be a wide difference between such documents and routine reports." I agree with his Lordship that the possibility that premature disclosure will result in want of candour in cabinet discussions or in advice given by public servants is so slight that it may be ignored, despite the evidence to the contrary which was apparently given and accepted in Attorney-General v Jonathan Cape Ltd [1976] QB 752. I should have thought that the possibility of future publicity would act as a deterrent against advice which is specious or expedient. I also agree with his Lordship that the efficiency of government would be seriously compromised if Cabinet decisions and papers were disclosed whilst they or the topics to which they relate are still current or controversial. But I base this view, not so much on the probability of ill-formed criticism with its inconvenient consequences, as upon the inherent difficulty of decision making if the decision-making processes of cabinet and the materials on which they are based are at risk of premature publication. Cabinet proceedings have always been regarded as secret and confidential.

33 Public interest immunity can thus arise both in the context of documents recording Cabinet decisions, where disclosure is generally not required, and documents prepared for submission to Cabinet. Thus, the class of documents in question, and their contents, may both arise for consideration. In Sankey, Gibbs ACJ observed at 39:

An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. 34 In Sankey, Gibbs ACJ went on to observe at 39 - 40 that:

... it 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 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 ( Conway v Rimmer [1968] AC, at pp 952, 973, 979, 987, 993; Reg v Lewes Justices; Ex parte Home Secretary [1973] AC, at p 412; Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582, at p 591), papers brought into existence for the purpose of preparing a submission to cabinet ( Lanyon Pty Ltd v The Commonwealth (1974) 129 CLR 650), and indeed any documents which relate to the framing of government policy at a high level (cf In re Grosvenor Hotel, London [No 2] [1965] Ch 1210, at pp 1247, 1255). 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, at p 952. 35 At 41-2, Gibbs ACJ concluded that:

Although the statement that cabinet documents and other papers concerned with policy decisions at a high level ("state papers", as I shall henceforth call them) are immune from disclosure was repeated in Conway v Rimmer [1968] AC 910, it accords ill with the principles affirmed in that case. The fundamental principle is that documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary. That principle in my opinion must also apply to state papers. It is impossible to accept that the public interest requires that all state papers should be kept secret for ever, or until they are only of historical interest. In some cases the legitimate need for secrecy will have ceased to exist after a short time has elapsed; this will be so, to take Lord Widgery's example, when new taxation proposals have passed into legislation. In other cases it may be necessary to maintain secrecy for many years. This may be so where the documents concern national security or diplomatic relations, to give two obvious examples. In other words state papers do not form a homogeneous class, all the members of which must be treated alike. The subject matter with which the papers deal will be of great importance, but all the circumstances have to be considered in deciding whether the papers in question are entitled to be withheld from production, no matter what they individually contain.

36 Once a legitimate claim of public interest immunity arises in relation to 'State papers', a Court must conduct a balancing exercise: the public interest in confidentiality, needing to be balanced against the public interest in disclosure. In Sankey, Gibbs ACJ observed 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 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.

37 His Honour's judgment was taken up by the High Court in The Commonwealth of Australia v Northern Land Council (1992) 176 CLR 604 at 616. At 618, it was observed:

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. 38 As to documents prepared outside Cabinet, such as reports and submissions, the High Court observed at 614-5:

It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet. Documents of that kind are often referred to as Cabinet documents. When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has "received an excessive dose of cold water" ( Burmah Oil Co Ltd v Bank of England , [1980] AC 1090, at p 1112; see eg. Sankey v Whitlam (1978), 142 CLR 1, at pp 62-63; Conway v Rimmer, [1968] AC 910, at pp 952, 957, 987-988, 993-994; Rogers v Home Secretary , [1973] AC 388, at p 413; but contrast with Sankey v Whitlam (1978), 142 CLR, at p 40; Conway v Rimmer , [1968] AC, at p 972.)

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 (See UK, Parliament, Report of the Committee of Privy Counsellors on Ministerial Memoirs ("the Radcliffe Committee") (1976), Cmnd 6386, p 14.). 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 (See Conway v Rimmer , [1968] AC, at p 952, per Lord Reid; Sankey v Whitlam (1978), 142 CLR, at pp 97-98, per Mason J; UK, Parliament, Departmental Committee on Section 2 of the Official Secrets Act 1911 ("the Franks Committee"), (1972), Cmnd 5104, vol 1, p 33.). 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. 39 Documents prepared for submission to Cabinet were also considered in Lanyon Pty Ltd v The Commonwealth of Australia (1974) 129 CLR 650, where Menzies J observed at 653, when upholding the claim for privilege that:

To each subpoena a claim for Crown privilege has been made, supported as to the first subpoena by an affidavit of the Minister of State for the Capital Territory, as to the second by an affidavit of the secretary to cabinet, and as to the third by the Minister of State for Urban and Regional Development to whom the administration of the National Capital Development Commission Act is committed. In each case it has been sworn that it is the opinion of the deponent that on grounds of public interest the documents sought ought not to be produced.

The central problem is, as I see it, whether I should - without examination of the documents covered by the subpoenas - uphold the claim for privilege for documents of a particular class or classes which may be described as documents brought into existence within government departments and instrumentalities for consideration in formulating a submission to cabinet and recording the decision of cabinet, its committees or sub-committees thereon.

The basis upon which I do so may not be precisely that taken in the affidavits claiming privilege. It is that 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 organization for the purpose of preparing a submission to cabinet. Such papers 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. There are no such circumstances here.

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. 41 Reference was also made to Re Howard and the Treasurer of the Commonwealth of Australia (1985) 7 ALD 628 at 634 - 5, where Davies J observed:

The task reposed upon the Tribunal by s 36 is not that which arises in the Crown privilege cases of which Conway v Rimmer , supra and Sankey v Whitlam , supra, are pre-eminent examples, or that undertaken in Jordan v Department of Justice , supra, which considered US exemption b(5). Yet those authorities throw light upon the elements of the public interest to be considered and the circumstances in which traditionally it has been thought that the reservation of documents from public view should be maintained. From such authorities and from decisions of Tribunals, including Re Peters and Department of the Prime Minister and Cabinet (1983) 5 ALN No 218, Re Waterford and Department of Treasury , supra, Re Murtagh and Commissioner of Taxation , supra, Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257, Re Burns and Australian National University and Re Lianos and Secretary to Department of Social Security it is possible to postulate that in each case the whole of the circumstances must be examined including any public benefit perceived in the disclosure of the documents sought but that:

(a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;

(b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;

(c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

(d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

(e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.

42 In Commonwealth v Construction, Forestry, Mining and Energy Union and Another (2000) 98 FCR 31, the privilege was considered by the Full Federal Court, in the context of correspondence between a Minister and the Prime Minister. Reference was there made to an earlier decision of the Full Federal Court in relation to indirect disclosure of the deliberations of Cabinet (also discussed by Spigelman CJ in Egan at 576) in New South Wales v Ryan (1998) 101 LGERA 246, where it was held 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.

43 It was concluded in Construction, Forestry, Mining and Energy Union and Another at [42] to [43], that the claim for immunity had been made out in relation to the Ministerial correspondence, because on the evidence, it appeared that the letter went to Cabinet and that while not recording actual deliberations at a Cabinet meeting, its contents revealed what had been discussed, and at least part of the Cabinet's deliberations on the matter. Consideration 44 In this case, the claim for immunity was not simply taken on the basis of the class of documents in question, but also their contents, it being the Crown's case that the documents deal with matters of ongoing controversy in relation to policy matters dealt with by the highest levels of Government. In each case the documents comprise a Minister's submission to Government on the matters dealt with in the document. 45 In Sankey, Gibbs ACJ discussed the importance of the person who swears an affidavit in support of a claim for public interest immunity, having themselves seen the documents in question, observing at 43 - 4:

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, at p 953).

Before Conway v Rimmer [1968] AC 910 it had become established that an objection to production should be taken by the Minister who is the political head of the department concerned, or failing him by the permanent head, and that the person taking the objection should himself have read and considered the documents and formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents to which they belong: Duncan v Cammell, Laird & Co [1942] AC, at p 638; Robinson v South Australia [No 2] [1931] AC 704, at p 722; Bruce v Waldron [1963] VR 3, at p 10; In re Grosvenor Hotel, London [1964] 1 Ch 464; In re Grosvenor Hotel, London [No 2] [1965] Ch, at pp 1243-1244. Although an affidavit sworn by a Minister or departmental head is no longer conclusive, it appears to me to be still highly desirable that the person who swears the affidavit should himself have seen the documents in question. Where the claim is that it would be contrary to the public interest to publish the contents of a particular document, it is obviously essential that the person asserting the claim should himself have seen the documents in question. Even where the claim is that the document belongs to a class which should be withheld, the court is still required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest, and the weight that would be given to an affidavit making an assertion of this kind would necessarily be reduced if the person swearing it had not himself seen the document.

46 Ms Kruk's evidence was that she had seen the subpoenaed documents exhibited to her, in four folders, and that she had also considered the affidavits sworn by Mr Pellowe and Mr Ronsisvalle. Ms Kruk's evidence explained the class of documents which were in issue between the parties, namely, documents provided by Ministers as a part of the annual formulation of the State Budget by Cabinet. She also explained why it was, given the contents of these documents, that they should not be disclosed. This evidence was consistent with the approach discussed by Mason J in Sankey at 96, where he criticised the affidavits there before the High Court, for not explaining: ... with precision the grounds on which it is the contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests. 47 In considering the matters so raised on the evidence, it must also be borne in mind that these are civil proceedings, as to which the High Court has expressed the view that it doubted whether disclosure of Cabinet deliberations on current or controversial matters, would ever be warranted. (Northern Land Council at 618.) 48 We now turn to consider the two classes of documents in question. We note that we have found it unnecessary to inspect the documents in issue in coming to our conclusions.

Results and Services Plans 49 We are satisfied, on the evidence, that the PSA has established a legitimate forensic purpose for its pursuit of these Plans. The PSA seeks wage increases for public servants to whom the new award is to apply, in order to ensure that they receive fair rates of pay and conditions of employment, for the work which they are required to perform. The claim concerns not only work value change, but productivity and efficiency improvements, which it is claimed have occurred, over the period in question; as well as improvements in the quality and quantity of work and service delivery; employee contributions to public sector restructuring; and the development of synergies in internal service provision. 50 On the evidence, these Plans include information as to agencies' result indicators and service measures, including how efficiently an agency is delivering services, as well as quality, access and timeliness of services. The Plans also deal with organisational capability, including people, systems and processes, as well as actions agreed between the Treasury and a Minister, in relation to strategic issues and monitoring agency performance. We are satisfied that the potential relevance of the documents to issues in the proceedings was thus apparent, given the basis of the PSA's claims. 51 We are also satisfied that the documents are of a kind, which may attract the immunity claimed. They are documents prepared for submission to Cabinet, by the responsible Minister, as a part of the preparation of an annual Budget for the State. Unsurprisingly, some of the issues dealt with in these Plans span periods of time longer than one year and are the subject of ongoing consideration, including in subsequent years' State Budgetary processes. 52 Decisions as to State finances, are a fundamental aspect of Government, finally determined at the highest level. These Plans are an integral part of what is, undoubtedly, a complex annual decision-making process, requiring input from agencies and responsible Ministers, as well as by a Committee of Cabinet, in order that Cabinet may finally come to produce a State Budget. It follows that the documents are concerned with 'policy issues at a high level'. 53 While prepared by agencies, the documents communicate the relevant Minister's proposals to Cabinet, as to various policy issues in relation to the agencies for which they have responsibility, necessarily the subject of the Cabinet's ultimate decision in relation to the State Budget. We concur with the view taken by the Full Federal Court in Ryan, that recommendations of any kind involved in a document of this kind, submitted by a Minister to Cabinet, are quite likely to have been involved in the deliberations of the Committee and Cabinet, necessarily involved in production of the State Budget. No doubt, competing agency demands have to be considered and determined in that process. That view is also consistent with the evidence of Ms Kruk, to which we will turn below. 54 On the evidence, access to the documents could reveal both internal Committee and Cabinet deliberations, as to funding priorities and the formulation of the State Budget, in relation to competing funding issues and proposals made by various Ministers. Certain of those issues continue to be current and controversial. 55 Mr Pellowe described how Government agencies were required to produce a Results and Services Plan in accordance with Treasury Guidelines. Mr Ronsisvalle explained the part which such Plans then played in the State Budget process. He deposed at [9] to [10]:

9. Results and Services Plans are initially negotiated between Treasury and an agency and should be endorsed by the portfolio Minister and agency CEO and submitted to Treasury on behalf of the Cabinet Standing Committee on the Budget.

10. As indicated by Mr Pellow in his affidavit sworn 27 May 2008: "The Results and Services Plan (RSP) is a high level service delivery and funding plan that enables agencies to demonstrate the relationship between the services they deliver and the results that they are working towards.

When funding, policy or service delivery issues arise, the RSP allows an agency and Treasury to discuss the merits of the issues in terms of how it impacts on the operations of the agency."

56 Mr Ronsisvalle's initial evidence was that an agency first submits a 'proposed Results and Services Plan' for consideration by the Cabinet Standing Committee on the Budget. After consideration by Treasury, and where necessary, by that Committee, and after Government decisions on agency spending priorities, an 'Agreed Results and Services Plan' is submitted to and formally approved by the relevant Minister, to the Cabinet Standing Committee on the Budget, via the Treasurer and the Department of Premier and Cabinet. 57 Such Results and Services Plans are submitted by Treasury to the Department of Premier and Cabinet for consideration by the Cabinet Standing Committee on the Budget. That Committee reviews the Plans where necessary. 58 Such Plans are kept confidential and are not made public. Aspects of such Plans may later be made public in Budget Papers and Agencies' Annual Reports. Matters not made public include possible future policy options under consideration in relation to matters such as agencies' restructuring of service delivery, which may impact on service levels and cost. Risk management strategies and emerging and strategy issues dealt with in the Plans, are also kept confidential. On Mr Pellowe's evidence, such parts of these Plans involve:

This part requires an agency to describe the emerging or strategic issues that may impact on service delivery or the results it is trying to achieve. It provides an opportunity for departments and agencies to raise issues that are not currently reflected in their budget and forward estimates and may require variances to future RSPs.

This part allows agencies to articulate the major risks that their services will not be delivered as planned or that expected results will not be achieved. Agencies are required to state the likely consequences of the risks eventuating and their strategies for managing those risks. 59 Ms Kruk's evidence was that she attends meetings of Cabinet as Secretary, as well as attending meetings of Cabinet Committees. She outlined the procedures for ensuring confidentiality of Cabinet proceedings and documents. Her evidence as to the operation of Cabinet and Cabinet Committees was:

16. The Cabinet is constituted by the Ministers of State for 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; copying of them is not permitted. 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.

17. The Cabinet Standing Committee on the Budget and the Cabinet Standing Committee on the Budget (Expenditure Review Committee) are Sub Committees of Cabinet and are charged with the responsibility of overseeing the financial management of the State, the Budget process and ongoing expenditure across Government. Both Committees comprise the Premier, the Treasurer, the Deputy Premier and Minister for Finance, the Minister Assisting the Minister for Finance, the Minister for Commerce and the Minister for Regulatory Reform.. Other Ministers are invited on an ad-hoc basis depending on the issues arising for consideration by the Committee. Their proceedings, and documents received and handled by it, are conducted on the same confidential manner as the proceedings of the Cabinet itself.

60 Her evidence as to Results and Services Plans was that:

19. Results and Services Plans, whilst not formally labelled as "Cabinet Minutes", have the same confidential status as Cabinet Minutes submitted to the full Cabinet, in so far as they constitute the responsible Ministers' principal communication with the Cabinet Standing Committee on the Budget as to a Department or agency's service, delivery and funding plans for the upcoming financial year. They are signed by the Minister and reflect his or her views as to emerging issues faced within their portfolio, and the way that key targets can be met within their existing resource allocation.

21. In my opinion, it is vital to the development of public policy and to the good administration of the affairs of the State that the Cabinet Standing Committee on the Budget and the Cabinet Standing Committee on the Budget (Expenditure Review Committee) be able to receive confidential advice and information on the matters that come before it for consideration. In order to achieve this, it is necessary that these Committees and their Ministers be confident that advice and information that Ministers put before Cabinet will remain confidential. 22. 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.

23. 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.

24. In my opinion, disclosure of the Results and Services Plans and Efficiency Improvement Plans for the last three years, as sought by the Summons, would undermine the principle of collective responsibility of Ministers for decisions made by Cabinet.

26. The disclosure of Cabinet's deliberations, including any documents setting out a Minister's position or advice that are the subject of such deliberations, could subject the members of Cabinet to substantial criticism from various quarters of an ill-informed or misdirected nature. It follows that the prospect of future disclosure of material the subject of Cabinet's deliberations, such as Results and Services Plans and Efficiency Improvement Plans, could impede such deliberations by muting a free and vigorous exchange of views between members of Cabinet or by encouraging lengthy discussions entered into with a view to subsequent public scrutiny. This would divert Cabinet processes from their proper course and would not be in the public interest.

27. It is also my opinion that the disclosure of the Results and Services Plans and Efficiency Improvement Plans for the last three years, as sought by the Summons, would directly undermine the confidence of Cabinet and Ministers in a significant way. Many Government proposals as to the level of funding, and the means by which funding is achieved, in relation to services provided by Government to the public are controversial and the subject of heated public debate. My own perusal of the Exhibits RW1, RW2, RW3 and RW4 confirm that much of the subject matter of the Plans remains current and controversial. I note that some of the proposals, for example, have been extremely contentious and have not been approved or adopted by Cabinet. Disclosure of these Plans could therefore inhibit future Cabinet discussions relating to the subject matter of such Plans. Disclosure of the Plans could also tend to impede Cabinet discussions and deliberations on other matters to be raised in future Plans, because Ministers could no longer be confident that their confidentiality could be maintained. 62 Ms Sanderson's evidence was that a review of Cabinet Secretariat records had been conducted, which had revealed that: 7 Mr Cameron informs me that the 2004/05 Results and Services Plans of eight of the agencies named in the Summons were considered at a meeting of the Cabinet Standing Committee on the Budget on 3 November 2004, while the 2004/05 Results and Services Plans of three of the agencies named in the Summons were considered by the Cabinet Standing Committee on the Budget - Results and Services Sub Committee.

8 Mr Cameron also informs me that the 2005/06, 2006/07 and 2007/08 Results and Services Plans of eleven of the agencies named in the Summons were considered at meetings of the Cabinet Standing Committee on the Budget on 5 October 2005, 28 August 2006 and 15 August 2007 respectively. 63 Mr Ronsisvalle's further evidence sought to explain a flow chart appearing at p 146 of the State Plan, on which the PSA relied to submit that these Plans are directed to Treasury, but not to Cabinet or any Committee. Mr Ronsisvalle said that the State Plan provided an overview of Government priorities announced in 2006, in relation to 'the implementation of fundamental reforms to Government accountability and reporting'. It did not, however, prescribe 'in a precise manner', how such accountability and reporting would be carried out. As a result, the flow chart was not complete. Mr Ronsisvalle further explained that: 14. As is indicated in paragraph 12 of my first affidavit, Treasury Circular 06/22, also issued in 2006, confirms the requirement that Results and Services Plans in fact must be developed for submission by the relevant Minister to, and approval by, the Cabinet Standing Committee on the Budget. I can confirm from my own review of Cabinet records and recollection of personally attending meetings of this Committee, that since Treasury Circular 06/22 was introduced in 2006, agency Results and Services Plans have been submitted to Budget Committee. 64 Having considered this evidence, we are satisfied that the claim for public interest immunity in relation to these Plans has been made good. The PSA confirmed that its summons required production of both proposed Plans and those finally agreed. That put beyond doubt that production of the Plans could reveal the deliberations of the Committee and Cabinet in relation to the matters dealt with in the Plans, which come to form part of the State Budget. These documents are not merely reports or submissions prepared by agencies to assist Committee and Cabinet deliberations. They are prepared for submission by the relevant Minister, in accordance with required guidelines and are finalised as the result of Committee and Cabinet deliberations, with the end result being the formulation of the State Budget. Their publication would, undoubtedly, reveal deliberations as to policy matters of both past and ongoing controversy at those levels of Government. 65 To be weighed with those considerations is the impact of not requiring the documents to be produced in this civil litigation. On the material, it is difficult to see that these proceedings would, in reality, be frustrated or impaired by production of the Plans being refused. Parts of the documents are later disclosed publicly in the State Budget and in agency Annual Reports and are thereby available to the PSA, to be used in its case. The consequences of decisions made by the Committee and Cabinet on contentious matters raised in the Plans, which are not so revealed, may, nevertheless, later become known through decisions which are implemented at agency level. Again, thereby that information comes into the public domain and is available for use in the proceedings. 66 While we do not accept the PSA submission, that, in truth, these Plans are but a management tool, designed to be used by the agencies to whom they apply, undoubtedly the consequences of the decisions made in the approval process leading up to the issue of the State Budget, as reflected in these Plans, affect the work which public servants later have to perform when the Plans are implemented. That is information which then also comes into the public arena, and as a result, is undoubtedly within the knowledge of public servants, who, as members of the PSA, are available to be called to give evidence in the proceedings about such matters. 67 What ought not to be revealed in these proceedings is the content of the draft and agreed Plans, which will reveal Cabinet and Committee deliberations, particularly in relation to ongoing contentious matters of policy, which have to be resolved in determining how the State's finances are to be utilised by agencies, as well as those which remain in contention and will require future consideration. 68 As was put by Mason J in Sankey at 97: ... the efficiency of government would be seriously compromised if Cabinet decisions and papers were disclosed whilst they or the topics to which they relate are still current or controversial. But I base this view, not so much on the probability of ill-formed criticism with its inconvenient consequences, as upon the inherent difficulty of decision making if the decision-making processes of cabinet and the materials on which they are based are at risk of premature publication. Cabinet proceedings have always been regarded as secret and confidential.

69 It follows that the orders sought in the motion must be made in relation to this class of documents.

Efficiency Improvement Plans 70 Again, we are satisfied on the evidence that the PSA has established a legitimate forensic purpose for its pursuit of these Plans, given what they contain and the issues lying between the parties in these proceedings. They include information in relation to matters such as the reduction or amalgamation of service delivery programs and centralisation of corporate services. Undoubtedly, such matters may impact the work of those covered by the award here in issue. 71 We are also satisfied that these documents may attract a claim for public interest immunity. These Plans are also developed for consideration at the highest level of Government. They are not concerned with routine reports, but with ongoing implementation of a Cabinet initiative in relation to cost savings, which forms a part of the annual State Budgetary process. They comprise a submission by the relevant Minister, as to how such savings are to be achieved, over time. These Plans concern policy issues of controversy, which are the subject of ongoing deliberation at Committee and Cabinet levels. 72 Mr Pellowe described how agencies were required to produce these Plans, following a Government request that agencies improve the efficiency of their operations, in order to reduce funding. Mr Pellowe's evidence was:

19 Efficiency Improvement Plans for agencies are required to be submitted to the Treasury with the expectation that they may be reviewed by the Expenditure Review Sub-committee of Cabinet (the Expenditure Review Committee). Normally, these plans are required to be submitted in April or May, for the financial year starting on 1 July. However, for the 2008-09 Budget process, agencies were required to submit a plan by 29 February 2008 for the three years from 1 July 2008 to 30 June 2011.

73 The Plans are directed to savings strategies in various areas and are reviewed by Treasury, and may be referred to the Treasurer and the Committee, if there are concerns as to whether required savings will be delivered by what is proposed. 74 Mr Ronsisvalle explained the expectation that Ministers are responsible for developing these Plans, in conjunction with the agency. They include plans for three financial years ahead. His evidence was:

21. The Efficiency Improvement Plans prepared by Agencies are reviewed by Treasury and, if any concerns arise as to policy options proposed (e.g. savings strategies being inconsistent with the Government's priorities), the inadequacy of the level of savings identified, or the risks associated with proposed options, a revised Efficiency Improvement Plan is negotiated between Treasury and the Agency. If any dispute arises as to the Efficiency Improvement Plans that cannot be resolved, the matter is referred to the Expenditure Review Committee for resolution. The Expenditure Review Committee would, as a matter of course, consider the Efficiency Improvement Plans of larger agencies such as the Department of Education and Training and the NSW Police Force.

22. Both Efficiency Improvement Plans and Results and Services Plans are confidential communications relating to the development of important high-level Government policy. Disclosure of these documents could expose the Ministers and Chief Executive Officers of Agencies, the members of the Cabinet Standing Committee on the Budget (which includes the Premier and the Treasurer) and/or the New South Wales Government to criticism of a premature, ill-informed or misdirected nature, and divert them from the processes of examining, formulating and determining policy. 75 Ms Kruk's evidence was that:

12. As noted in paragraphs 17 to 21 of the affidavit of Mark Ronsisvalle, Efficiency Improvement Plans, are required to be submitted in the first instance to NSW Treasury. The final content of the Efficiency Improvement Plan that is submitted to NSW Treasury reflects the view of the relevant Minister as to the best means by which savings can be achieved in light of the relevant targets and services that a Department or agency has the responsibility of meeting or providing. Ministers are encouraged to take a long term view when developing strategies to deliver savings.

13. If a dispute arises between NSW Treasury and the relevant agency as to the content of an Efficiency Improvement Plan, the matter is referred to the Cabinet Standing Committee on the Budget (Expenditure Review Committee) for resolution prior the annual State Government budget being handed down.

20 Similarly, Efficiency Improvement Plans, whilst not formally labelled as "Cabinet Minutes", have the same confidential status as Cabinet Minutes submitted to the full Cabinet in so far as they constitute the responsible Minister's principal communication with the Cabinet Standing Committee on the Budget (Expenditure Review Committee) as to a Department or agency's proposed 'savings plans' in light of the Government reducing their funding and requesting that they improve the efficiency of their operations.

77 Ms Kruk's evidence at paragraphs [21] to [26], earlier quoted, also concerned these Efficiency Improvement Plans. 78 Ms Sanderson's evidence was that review of Cabinet Secretariat records had shown that the Plans of nine agencies had been submitted to the Committee in full, or had their contents presented in summary form for consideration. 79 Mr Ronsisvalle's further evidence was that Efficiency Improvement Plans formed a part of the annual State Budget process. Plans submitted to Treasury might be acceptable; they might lead to changes negotiated by the Treasurer, or Treasury, which might seek a revised submission; and if any issue could not be resolved, the relevant Minister could be required to appear before the Committee, which could also request a revised Plan for further consideration. That Committee endorsed the final Plan. 80 If that Committee formed the view that efficiency dividends or savings could not be achieved without unacceptable reduction in key services, the funding shortfall could be referred to the Standing Committee on the Budget, for consideration of supplementary funding. This could be approved by a one-off increase in budget allocation, or an ongoing increase, over four years, in its Budget and Forward Estimates. 81 These Plans were one means by which the Government determined budgetary needs of a particular agency and its budget allocation. They were one means by which a Minister may raise for policy discussion funding issues faced by an agency in meeting the State Plan. 82 On the evidence we are also satisfied that, on balance, these Plans do attract a claim for public interest immunity, even though that conclusion was not as obvious in the case of these Plans, as it was in the case of the Results and Services Plans. 83 Nevertheless, there can be no question, on the evidence, that the Plans are the responsible Ministers' proposals to Cabinet as to how a Government directive, requiring cost savings, is to be achieved by the agency concerned. Proposed Plans are accepted for implementation as a part of the State Budget, as the result of a process involving agencies, Ministers and the Treasury. They may be the subject of negotiation with the Treasury or the Treasurer, or may be the subject of separate consideration by the Committee. Some agencies' Plans are always considered by that Committee. 84 It follows that these Plans are also not just a management tool for an agency, or even a report to Cabinet, as to what an agency proposes in relation to cost savings. The Plans form a part of a process by which the State Budget is developed. This involves Ministers' proposals, in relation to the agencies for which they have responsibility, meeting Government directives. It is not to the point that not every individual Plan is, itself, separately considered at Committee and Cabinet level. Some are routinely considered. Others are considered when the view is taken by Treasury that Government directives are not satisfied. Whether or not so considered, what is proposed in the Plans is provided by the relevant Minister to the Committee and Cabinet for deliberation in relation to the matters of policy dealt with in the Plans, some of which, undoubtedly, concern matters of ongoing controversy. The information so provided in that process is fundamentally concerned with Cabinet's formulation of the annual State Budget. As we have observed, that is plainly a complex process conducted at a high level. We are satisfied that while not themselves containing Cabinet deliberations, given their contents, access to the Plans could reveal aspects of Cabinet's deliberations on the State Budget and its formulation. 85 The evidence also showed that these proceedings would not be frustrated or impaired by production of the Plans being refused. While these Plans themselves are kept confidential, parts of these Plans are also later disclosed in the State Budget and in agency Annual Reports. The consequences of decisions made by Committee and Cabinet on contentious matters raised in these Plans, also later become known through decisions which are implemented at agency level, which are then reflected in the work of public servants, about which the PSA is free to call evidence in these proceedings. 86 It is unnecessary for policy issues of ongoing controversy and deliberation in relation to required cost savings, at Committee and Cabinet level, which are dealt with in these Plans, to be revealed in these proceedings, in order to do justice as between these parties. We are satisfied that premature disclosure of Government decisions as to matters of ongoing cost savings, which are well known to have been the subject of repeated controversy before this Commission in the past, ought not to be required in these proceedings. 87 It must be remembered that these proceedings concern the PSA's claims for wage increases for past work value change; productivity and efficiency improvements; as well as improvements in the quality and quantity of work and service delivery; employee contributions to public sector restructuring processes, departmental amalgamations and the development of synergies in internal service provision. 88 Not only does the PSA have access to aspects of the Plans, as they have been made public in other ways, the consequences of the implementation of the Plans, in the period to which this claim relates, have been reflected in the work which public servants have been required to perform. It follows that the consequences, in these proceedings, of a refusal to require disclosure of the contents of the Plans themselves, which will not only reveal matters not already in the public domain, but will also reveal Committee or Cabinet deliberations in relation to matters of past and ongoing controversy, are not such as to override the public interest in the confidentiality of such deliberations being maintained. 89 It follows that the orders sought in the motion must also be made, in relation to this class of documents. Orders 90 For the reasons given, we order that the summons be set aside, other than in relation to Budget allocation letters, the subject of our earlier order.

AMENDMENTS HISTORY: 06/08/2008 - Typographical error - Mr Leigh Anderson should be Ms Leigh Anderson - Paragraph(s) [10], [62] and [78]

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