ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Practice and procedure - Claim of privilege on ground of public interest immunity - Desirable qualities of an affidavit provided in support of a claim for public interest immunity - Effect of nature of litigation on claim of privilege - Claim of immunity over class of documents - Disclosure of documents which 'could threaten prison security and maintenance of the prison system' - Disclosure of documents which would disclose police intelligence

Sentence Administration Act 2003 (WA), s 5C(5), s 102 - s 113 (pt 9), s 115, s 119

Claim for public interest immunity in respect of all documents within the class of 'police methodology, intelligence and information' upheld

Order for disclosure of the documents numbered 29, 59, 61, 64, 65 and 91 in the list of documents, but such order be stayed for seven days after publication of these reasons

Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404

Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83

Betfair Pty Ltd v Racing New South Wales [No 7] [2009] FCA 1140; (2009) 181 FCR 66

Conway v Rimmer [1968] AC 901

CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48

Harms v Queensland Parole Board [2008] QSC 163

Kirby v Prisoners Review Board [2010] WASC 243

Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2003] NSWLEC 322

Rogers v Home Secretary [1973] AC 388

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553

Zarro v Australian Securities Commission (1992) 36 FCR 40

1 MARTIN CJ: In these proceedings, the applicant, Lennard Mark Kirby, seeks to quash decisions made by the respondent, the Prisoners Review Board (the Board), to suspend his parole, and then to cancel his parole. The Board has filed a submitting appearance and is not taking any active part in the proceedings. The Attorney General for Western Australia has intervened.

2 For reasons which it is not necessary to repeat, I ordered the Board to produce to the court documents within its possession falling within a certain description, in order that the court could ascertain which of those documents were sufficiently relevant to justify disclosure to Mr Kirby's legal advisers. The Board produced the documents within the class specified, together with a list of the documents produced to the court. After reviewing the documents, I ordered that some of them be disclosed to Mr Kirby's legal advisers, and later, to Mr Kirby.

3 However, in respect of some of the documents, the Attorney General foreshadowed a claim for public interest immunity from inspection. I did not consider those documents at the time I reviewed the documents provided by the Board for the purposes of identifying those which should be disclosed to Mr Kirby's legal advisers. Instead, I specified a process whereby Mr Kirby was required to specify the documents in respect of which he challenged the claim for public interest immunity. That has occurred, an affidavit has been filed in support of the claim for public interest immunity, and the parties have exchanged written and oral submissions on the topic. These are my reasons for determining the claims for public interest immunity.

4 The basic principles governing the determination of claims for public interest immunity from inspection are not controversial. Those principles are conveniently set out in the following passage from the judgment of the court in CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48:

1. The relevant legal principles that apply to a claim to public interest immunity were considered by the High Court in Sankey v Whitlam (1978) 142 CLR 1 and confirmed in Alister v The Queen (1984) 154 CLR 404. The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the general rule will not apply where the court is of the opinion that the public interest in the fair administration of justice outweighs the interest giving rise to the immunity. The rationale to this principle was summarised in the judgment of Gibbs CJ in Alister where the Chief Justice, in referring to Sankey, said at 412:

.... when one party to litigation seeks the production of documents, and objection is taken that it would be contrary to 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.

1. The mere fact that a claim of privilege may be asserted by a party is not conclusive. In all cases it is the duty of the court to decide whether a document should be produced or may be withheld: Sankey at 38; see also Alister; Commonwealth v Northern Land Council (1991) 30 FCR 1 (which we will call 'Northern Land Council (FCt)'. It is also clear that the court has the power to prevent disclosure of a document the production of which would be contrary to the public interest even if no claim is made by a Minister or other high official that its production be withheld: Sankey per Gibbs ACJ at 44; Conway v Rimmer [1968] UKHL 2; [1968] AC 910 per Lord Reid at 950. However, while the court has the power to intervene if it appears that the public interest requires disclosure it would only be in exceptional circumstances that it would do so when it was clear the relevant official had considered the question and decided that no objection should be taken: see Sankey per Gibbs ACJ at 46.

5 Accordingly, where it is established that it would be contrary to the public interest to disclose the document in question, and the document is relevant to an issue before the court, it is necessary for the court to weigh the competing elements of the public interest (Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38 - 39, 43, 60 - 64, 98 - 99). It follows that in my assessment of the immunity from inspection claimed in this case, it is necessary for me to address two issues relating to each document in respect of which immunity is claimed, namely:

(a) Would disclosure be contrary to the public interest?

(b) Is it a document relevant to a contentious issue in the case?

6 If the answer to both of these questions is in the affirmative, it will be necessary to weigh the competing public interests. If the answer to both questions is in the negative, no question of disclosure arises. If the answer to one of those questions is in the affirmative, and the other in the negative, the question that is answered in the affirmative will dictate whether or not disclosure is ordered.

7 It is usual to distinguish between claims for public interest immunity based on the fact that a document falls within a particular class (eg, Cabinet documents) from claims based upon the content of a particular document. Claims of the former kind (class claims) will only be upheld:

... if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. (Sankey, per Gibbs ACJ at 39)

Those who urge Crown privilege for classes of documents regardless of particular contents, carry a heavy burden. (per Stephen J in Sankey at 62, see also Rogers v Home Secretary [1973] AC 388, per Lord Reid at 400.)

9 Class claims based on the need to encourage candour of communication between government officials have been disparaged (see Stephen J in Sankey at 62 - 63 and Lord Reid in Conway v Rimmer [1968] AC 901, at 952). In Rogers v Home Secretary [1973] AC 388, Lord Salmon described the candour argument as 'the old fallacy' (at 413).

10 The old practice required the claim for public interest immunity to be made by the Minister responsible for the government agency concerned, or failing him or her, by the permanent head of that agency. Although that is no longer required, it is ordinarily required that the claim be made by affidavit. In that regard, Gibbs ACJ observed (in Sankey at 44):

... 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 ... 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.

11 It is established that the affidavit asserting the claim to immunity from inspection should provide as much detail and particularity as can be provided without disclosing the information which it is sought to protect. Generalised statements are insufficient. In Sankey, Mason J observed (at 96):

... it is necessary to identify, first, the various elements which sustain the public interest against production of documents of the kind referred to. In identifying these elements I have gained little assistance from the affidavits sworn by Ministers and heads of departments in support of the objection to production. They have sought refuge in the amorphous statement that non-disclosure is necessary for the proper functioning of the Executive Government and of the public service, without saying why disclosure would be detrimental to their functions, except for the reference to want of candour. Perhaps affidavits in this form were acceptable in the days when it was thought that the court should uphold an objection once made by the Crown through its appropriate representative. But they are plainly unacceptable now that the court is to resolve the issue for itself, after an inspection of the documents when that is thought to be appropriate. An affidavit claiming Crown privilege should state with precision the grounds on which it is contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests. The affidavits in this case fall far short of this standard and I must therefore look beyond them for the considerations which tend to support non-production.

12 The last sentence of this passage supports the proposition that even where the affidavits are defective, the claim for public interest immunity may nevertheless be upheld if there is other material which establishes the claim - such as, for example, the documents themselves.

13 In Zarro v Australian Securities Commission (1992) 36 FCR 40, Lockhart J made the following observations with respect to the desirable qualities of an affidavit provided in support of a claim for public interest immunity (at 50 - 51):

In these days with large government instrumentalities and agencies involved in time consuming and extensive investigations into possible irregularities and offences, great care is required by the bodies themselves in ensuring both that the correct person within the structure of the organisation (that is, a person who knows the facts, has seen the documents and who is preferably at a high level within the organisation) swears the appropriate affidavit claiming public interest immunity and that the claim is not made too widely so as to sweep within its net documents that are not legitimately an essential integer in the investigative process. This also calls for vigilance by the courts lest documents are shielded from public scrutiny or inspection by parties to litigation under an unduly broad umbrella of public interest immunity.

14 An example of an appropriately detailed affidavit is found in the reasons of the court in Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 at [36]. The affidavit that provided the evidentiary basis for upholding the claim for immunity in that case provided a clear and lucid statement of the reasons why disclosure would be contrary to the public interest.

15 Where it is necessary for the court to weigh the competing public interests, the weight of the public interest in disclosure for the purposes of the litigation will be affected by the nature of the litigation. So, where the documents only came into existence because the applicant was asking for a privilege and was submitting his character and reputation to scrutiny, the weight attached to disclosure will be less than a case in which the documents are being used to deprive someone of a legal right - see Lord Reid in Rogers v Home Secretary at 401. Similarly, where a person's liberty is at stake (as is the case in these proceedings), production is more likely to be ordered - see Gibbs ACJ (at 42) and Stephen J (at 61 - 62) in Sankey; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414, Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2003] NSWLEC 322 at [19]; Betfair Pty Ltd v Racing New South Wales [No 7] [2009] FCA 1140; (2009) 181 FCR 66 at [5].

16 In Harms v Queensland Parole Board [2008] QSC 163, Douglas J drew a distinction between cases in which a person's liberty was at stake because they were charged with a criminal offence, and a case in which liberty was in issue as a result of revocation of parole (at [17]). In the former case, bearing in mind the presumption of innocence, the public interest immunity normally recognised in relation to the identity of police informants might be overridden if disclosure would assist in showing the innocence of the accused. In the view of Douglas J, different considerations applied where the applicant for inspection had been convicted and had forfeited the right to liberty as a result of the sentence imposed.

17 I accept the validity of that distinction where disclosure of the identity of police informants is involved. However, in relation to other categories of documents where the claim for public interest immunity is not so strong, the fact that the proceedings involve the legal validity of an order revoking the qualified right to liberty created by the grant of parole, may be an important consideration when undertaking the process of weighing the competing public interests for and against disclosure.

18 The Board is created by Pt 9 of the Sentence Administration Act 2003 (WA) (the Act). Its functions are set out in the Act, and generally concern the parole of prisoners. The Board decides whether prisoners falling within certain categories are to be released on parole, and in the case of other prisoners, provides reports to the Minister recommending whether or not they should be released. The Board also makes decisions with respect to the suspension or cancellation of parole, and also may make re-entry release orders in respect of sentenced prisoners.

19 Section 115 of the Act purports to exclude the rules of natural justice, including any duty of procedural fairness, in respect of certain activities of the Board. The validity and operation of that section is in issue in these proceedings.

20 The Board has all the powers of a Royal Commission (s 107 of the Act) and may therefore use those powers to compel the provision of information.

21 Section 119 of the Act imposes an obligation of confidence upon members and staff of the Board. The section specifically authorises disclosure of documents or information pursuant to court order. Section 5C(5) of the Act provides that the Board must not give a prisoner, or the representative of a prisoner, access to or a copy of a written submission provided by a victim of an offence for which a prisoner is in custody.

22 In the reasons which I gave for my earlier decision to permit inspection of some of the documents produced to the court by the Board (Kirby v Prisoners Review Board [2010] WASC 243), I outlined the nature of these proceedings and referred briefly to the issues arising from the grounds specified in the originating motion. It is unnecessary to repeat that summary, which I incorporate into these reasons by reference.

23 The Attorney General relies upon the affidavit of Sharon-Lee Holland in support of the claim for public interest immunity. Having regard to the principles which I have set out above in relation to the requirements of such an affidavit, the affidavit of Ms Holland is manifestly inadequate. Perhaps the most striking example of the affidavit's inadequacy is the failure of Ms Holland to depose to having read the documents in respect of which immunity is claimed. She merely states that she has inspected a copy of the list of documents prepared by the Board, which accompanied the transmission of the documents to the court.

24 Ms Holland is the Registrar of the Board. She has held that position since the Board was created in July 2007, and therefore has been in her present position for a little over three years. She does not depose to any prior experience in relation to parole or any other activities relevant to the issues arising in these proceedings.

25 Ms Holland deposes as to her duties, which she states include: the making of parole orders in accordance with guidelines issued by the Board for certain categories of prisoners in certain circumstances; signing notices of decision of the Board; co-ordinating and attending the weekly meetings of the Board and managing the post-meeting processes; and, co-ordinating and managing support for the chairperson, deputies and members of the Board. She also asserts that she has a responsibility for liaison with 'key stakeholders', who are not identified in the affidavit. Aside from those cases in which Ms Holland has the delegated authority of the Board, it appears that her responsibilities are mainly administrative in character.

26 In the affidavit, Ms Holland asserts a claim to immunity from inspection in respect of two categories of documents which are described by her as:

(a) highly sensitive and confidential prison and parole documents; and

(b) police methodology, intelligence and information.

27 Dealing with the first category, the brevity of the evidence provided in support of that claim is such that the relevant portions of the affidavit are conveniently set out in full:

1. The Attorney General objects to producing the documents enumerated below on the grounds that the Prisoners Review Board depends on the provision of confidential information from various agencies, including prison officers, the Department of Corrective Services and counsellors or psychologists, in discharging its statutory functions under the Sentence Administration Act 2003 (WA). The information is given to the Prisoners Review Board on the express, implied or inferred basis that the confidence is honoured and that the identity of the person will not be disclosed.
2. Some of the documents reveal information from a confidential counselling session with confidential psychological assessments provided to the Board in confidence.
3. Some of these documents reveal information about victims of offences which the Board cannot allow the prisoner or a person acting for or on behalf of the prisoner to see: s.5C(5) of the Sentence Administration Act 2003 (WA).
4. Some of the documents reveal recommendations and opinions of officers involved in the prison system and disclosure could threaten prison security and maintenance of the prison system.
5. Disclosure of the documents would effectively prevent the Board from exercising its statutory functions and may endanger the safety of the authors of the documents, the people mentioned in the documents and victims of the offences.
6. The disclosure of the following documents is therefore against the public interest: ...

Then follows a list and description of ten documents in respect of which immunity is claimed.

28 Dealing firstly with par 9 of the affidavit, at first sight, it appears to have the flavour of a class claim. However, the first sentence is nothing more than a statement of the ground upon which objection is taken. Nowhere in the paragraph, or elsewhere in the affidavit, is there any identified or identifiable class of documents which is said to be the subject of a claim for immunity, unless perhaps the class is to be taken to be all documents recording any information provided by any agency to the Board. A claim cast at that level of breadth and generality is plainly unsustainable, having regard to the principles to which I have referred. Further, the closest one gets to an enunciation of the basis upon which the public interest would be jeopardised by disclosure within the paragraph is a broad and sweeping assertion of confidentiality. While confidentiality is, of course, relevant, the cases establish that it is insufficient, of itself, to create a public interest against disclosure (Sankey per Gibbs ACJ at 42 - 43).

29 Paragraphs 10 to 12 do not appear to be class claims, but rather, assertions as to what some of the documents contain, without any identification of which document contains which information of which kind. Further, there is no evidence in the affidavit as to why disclosure of information of that kind would be contrary to the public interest. For example, reference is made to information provided in confidential counselling sessions, but nothing is said by the deponent as to why disclosure of that information would be contrary to the public interest. Further, par 11 fails to specify that s 5C(5) of the Act deals only with 'victims' submissions'. None of the documents are described as a 'victim's submission', and s 5C(5) does not prohibit disclosure of information about victims of offences. Further, this paragraph appears consistent with the failure by Ms Holland to state that she has read the documents, given that, as best as I can see, there is no reference in any of the documents in respect of which immunity is claimed to any victim or victims. This is hardly surprising, given that Mr Kirby was imprisoned for possession of drugs with intent to sell or supply.

30 Paragraph 12 contains the broad and sweeping assertion that some of the documents reveal recommendations and opinions of officers involved in the prison system, the disclosure of which 'could threaten prison security and maintenance of the prison system'. An assertion cast at that level of generality is devoid of any relevant evidentiary content, and is plainly incapable of sustaining a claim of immunity - see State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553. In that case, in the context of a claim for public interest immunity for documents relating to the prison system, the court observed (at 25 - 27):

It is one thing to acknowledge that the proper functioning of a government agency is in the public interest. The same might be said - uncontroversially - about any government department or agency. It is quite another thing to accept that particular information in the possession of a government agency is of such sensitivity, and its disclosure would therefore cause such injury to the public interest, that information of that type should be treated as capable of attracting PII [public interest immunity]. Unless that threshold is passed, no question of balancing arises.

We reject the State's contention that there already exists a 'public order' category of PII, defined in terms of 'endangering public peace, order and safety'. As counsel for Mr Brazel submitted, the case law simply does not support the contention. Nor would a category of immunity so broadly defined have any prospect of satisfying the test of demonstrable necessity.

For the purposes of this appeal, we accept that a narrow claim of PII could properly be maintained with respect to specific prison security information which was shown to be both current and highly sensitive. The task for the State was to demonstrate that the information in issue here was of that character. For reasons which follow, the State has failed to do so. ...

31 For these reasons, the affidavit of Ms Holland is quite incapable of establishing public interest immunity in the ten documents she describes as 'highly sensitive and confidential prison and parole documents'. However, as the passage I have set out above from Sankey makes clear, that is not the end of the matter, and the documents themselves may be capable of establishing the claim.

32 Mr Kirby does not dispute the claim for public interest immunity in respect of two out of the ten documents. I have inspected the remaining eight documents for the purposes of ascertaining whether, from their content alone, it is possible to deduce that their disclosure would be contrary to the public interest. There is nothing from the contents of the documents that would support that conclusion. Accordingly, I conclude that a public interest against disclosure has not been established in respect of any of the documents within this category where that claim is challenged.

33 The next question for me to determine is whether any of those documents are sufficiently relevant to justify disclosure, in accordance with the criteria adopted in my earlier review of the documents. I have concluded that six of the eight documents are relevant in that regard, being:

Copy of Department of Corrective Services Community Business Information System Prisoners Review Board Note

Copy of Department of Corrective Services Community Business Information System Prisoners Review Board Note

Copy of Department of Corrective Services State Parole Assessment

Copy of Department of Corrective Services Re-Entry Release Report

34 In each case, the relevance of the documents arises from the reference to Mr Kirby's association with motor cycle gang members.

35 Turning now to the category for which immunity is claimed on the basis that they relate to 'police methodology, intelligence and information', again the basis for the claim enunciated in Ms Holland's affidavit is brief, and can be stated in full:

The Attorney General objects to producing the documents enumerated below on the grounds that the Board depends on receiving information from the Western Australia Police Service of a highly sensitive nature to exercise its statutory functions under the Sentence Administration Act 2003 (WA). The following documents disclose internal intelligence and police methodology provided in confidence to the Board. The disclosure of the documents may jeopardise the workings of the Respondent and hamper police operations. Further, the disclosure of the documents may indicate the state of police inquiries into any particular crime or could endanger the police officer involved.

36 It may readily be accepted that there is a public interest against the disclosure of documents that would disclose police intelligence in respect of matters of current police interest. It is much more difficult to accept the broad and unsubstantiated proposition that there is a public interest against the disclosure of documents which would disclose 'police methodology'. There are many different types of police methodology, many of which are public knowledge. Police methodology is revealed by depositions given by police officers, which are given to accused persons in prosecution briefs every day.

37 Because of the generality of the grounds upon which public interest immunity has been asserted in respect of this category of documents, I have looked primarily to the documents themselves to ascertain whether or not it can be deduced from their content that disclosure would be contrary to the public interest. There are seven documents falling within this category all of which I have reviewed. Four of the documents are in fact additional copies of one of the documents in this category. Accordingly, there are only three distinct documents falling within this category. Each of those documents contains information which appears to have been provided as a result of police intelligence work, including as a result of information provided by covert surveillance and/or informants. I am prepared to infer from the nature of the information that its disclosure would be contrary to the public interest. Accordingly, I conclude that there is a public interest against disclosure of all the documents in this category.

38 The next question involves my assessment of the public interest in the disclosure of the documents to the legal advisers to Mr Kirby for their use in these proceedings. Given that Mr Kirby's liberty is at stake in these proceedings, if non-disclosure of the documents would materially prejudice Mr Kirby in the prosecution of his claim, it is likely that the weighing exercise would come down in favour of disclosure.

39 However, it is important to remember that these are proceedings for judicial review of the Board's decision. As I pointed out in my earlier reasons, the ambit of factual controversy in the course of these proceedings is very limited. That is not unusual in proceedings for judicial review. There is nothing in the documents which bears to any significant extent upon any of the factual issues raised by the grounds specified in the originating motion. Disclosure of the documents to Mr Kirby would not materially assist Mr Kirby in the advancement of any of the grounds for review he has enunciated. Accordingly, I conclude that there is no significant public interest in the disclosure of the documents to Mr Kirby or his legal advisers for their use in these proceedings. It follows that disclosure of the documents within this category should not be ordered.

40 For the reasons I have given, I order the disclosure of the six documents I have listed above, notwithstanding the claim for public interest immunity in respect of those documents, which I have rejected. However, as requested by the Attorney General, I will defer the operation of that order for seven days after publication of these reasons, to allow the Attorney General time within which to initiate proceedings by way of appeal against this decision, should he wish to do so. Disclosure will be limited in the first instance to solicitors and counsel acting on behalf of Mr Kirby, on the terms of the undertaking as to confidentiality which they have already given. I will, however, invite the Attorney General to advise the court in due course whether there is any objection to disclosure of the documents to Mr Kirby himself. I uphold the claim to public interest immunity in respect of all documents within the class 'police methodology, intelligence and information'.