Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40583/03

FRIDAY 28 NOVEMBER 2003 MURRUMBIDGEE GROUNDWATER PRESERVATION ASSOCIATION INC Applicant v MINISTER FOR NATURAL RESOURCES Respondent Judgment

1 HIS HONOUR: There are two notices of motion before the court. The first relates to documents produced in answer to a subpoena addressed to the Department of Infrastructure, Planning and Natural Resources. Of the documents that have been produced to the court in response to that subpoena the Director-General of the Department submits that the court should decline to allow inspection of six of them. 2 The second motion relates to a subpoena addressed to the Cabinet Office. The Director-General of that office submits that the subpoena should be set aside, but if not, it is submitted that the documents sought by the subpoena are protected by public interest immunity and the court should not require their production. 3 The subpoenae have been issued in proceedings brought by the Murrumbidgee Groundwater Preservation Association against the Minister for Natural Resources in which it is claimed that the Water Sharing Plan for the Lower Murrumbidgee Groundwater Source Order 2003, made by the Minister under s 50 of the Water Management Act 2000, is invalid. The relevant ground of alleged invalidity is that the Minister failed to lawfully exercise his statutory discretion because he acted at the direction of the Cabinet. 4 Power to make a management plan for a water management area or water source is given to the Minister by s 50 of the Act. Section 50(2) provides that a "Minister's plan must in general terms deal with any matters that a management plan is required to deal with." 5 Section 16 provides that a management plan must be consistent with various matters including "government policy, including government policy in relation to the environmental objectives for water quality and river flow." s 16(1)(e). It is submitted by the Association that there is a real question in the primary proceedings as to whether a Minister's plan provided for in s 50, in contrast with a "management plan" made under s 41, must comply with s 16. As I understand it the Minister submits that it must. If the Minister's argument is correct much of the present debate, if not the entire debate, is of no consequence - the Minister when making a plan must act in a manner consistent with government policy. 6 The subpoena to the Cabinet Office sought documents in five categories. Only categories 2, 3 and 4 are pressed. They are: 2. Cabinet Minute number 162 of 2001;

3. Any Cabinet minute from August 1, 2001 to date referring to: a. Any cabinet minute whose title or main purpose includes a reference to the Lower Murrumbidgee Groundwater Sources; b. Any cabinet minute whose title or main purpose includes a reference to water sharing plans where the subject matter would apply to the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources.

4. Any Cabinet decision from August 1, 2001 to date referring to:

a. Cabinet Minute number 162 of 2001; b. Any cabinet decision whose title or main purpose includes a reference to the Water Sharing Plan for Lower Murrumbidgee Groundwater Sources; c. Any cabinet decision whose title or main purpose includes a reference to water sharing plans where the subject matter would apply to the Water Sharing Plan for the Lower Murrumbidgee Groundwater sources." 7 The descriptions in the subpoena differentiate between a cabinet minute and a cabinet decision. A minute will include the Minister's observations and recommendations with respect to any matter. The decision is the decision of cabinet in relation to the matters in the minute. It may be recorded at the foot of the minute. 8 The six documents in issue in relation to the subpoena to the Department of Infrastructure, Planning and Natural Resources are as follows: s "a memorandum prepared by David Anderton (Document I); s a document headed 'Minister's Speaking Points' (Document II), s a document headed 'Speaking notes on additional issues' (Document III), s a document headed 'Caucus Briefing Note' (Document IV), s a finalised Cabinet Minute (Document V), and s a document headed 'Request by Cabinet Office for Briefing Notes on Contentious Issues for Griffith' (Document VI)." 9 The Director-General of the Department of Infrastructure, Planning and Natural Resources gave evidence in relation to the nature of each document and the reason for the claim of privilege. It is convenient to set out that evidence: " Document I is a memorandum prepared by a public servant for the purpose of briefing the Minister in relation to a Cabinet Minute. It is related to the information of public policy by the Minister. The memorandum is one of a class designed to be brief. Because they annex other material, memoranda such as Document I do not attempt to provide a full and balanced discussion of the issue they address: rather, they seek succinctly to draw the Minister's attention to the issue involved, to the current situation, and to any particular matters which may be problematical. Such memoranda are drafted on the basis that they will remain confidential. If such memoranda were liable to being disclosed outside the executive government it would become necessary to draft them with a view to being made publicly available. It would be necessary for such memoranda to contain extra information about and discussion of the issues involved. Instead of directly drawing the Minister's attention to problematic matters it would be necessary to couch advice in more circumspect language and to engage in fuller and more balanced discussions. It would be very difficult to provide the necessary advice in a concise, rigorous and uninhibited manner. Document I provides a short description of one aspect of the decision-making process the subject of the memorandum. It indicates the views of other Ministers on relevant aspects of the issues involved. It is vital to the proper administration of government that Ministers be able on a confidential basis to form views in the course of decision-making. The system of executive government used in New South Wales is based on the principle of collective responsibility. Once a decision of government is made all Ministers are expected to support that decision. Where, in the course of decision-making, individual Ministers form views or take positions on matters of policy or public administration they must be able to do so confidentially. If they are not able to do so then they are at risk of being placed in awkward or untenable positions should their views or positions not prevail when the final decision is made. Documents II and III were prepared by the Department of Land and Water Conservation. They constitute the advice of the Department to the Minister on what the Minister might say to Cabinet when the matter in question came before Cabinet. It is vital to the effective administration of the executive government of New South Wales that Departments be able to provide uninhibited advice to their Ministers on what they might say to Cabinet. It would not be possible for such advice to be provided if it were liable to being disclosed outside the executive government. If it were liable to being disclosed, such advice would have to be prepared with an eye to a wider audience. It is also vital to the effective administration of the executive government of New South Wales that Ministers be able to address the Cabinet without inhibition. If records of what Ministers say to Cabinet - including records of what Ministers are advised by their Departments they might say to Cabinet - were liable to being disclosed that would tend to inhibit Cabinet deliberations. If such documents were liable to being disclosed the Department would have to frame the advice in different (and often more discursive) terms, and Ministers would be constrained either by a tendency to adhere to the advice or by a tendency to avoid receiving advice which might conflict with what they ultimately say to Cabinet. Document IV was prepared by the Department of Land and Water Conservation to advise the Minister on what he might say to the caucus of parliamentarians from his own political party. Parliamentary caucuses - in particular the caucus of the party constituting the executive government - are an important aspect of the practical operations of the executive and legislative arms of government. It is an integral part of the system of responsible government used in New South Wales that the governing party's parliamentary caucus is kept appropriately informed by Ministers. In documents such as Document IV Departments advise their Ministers on what they might appropriately say to their caucus. It is important both that the Department be able to provide uninhibited advice of this sort and that the Minister be able to receive such advice in the knowledge that it will remain confidential. If such documents were liable to being disclosed the Department would have to frame the advice in different (and often more discursive) terms, and Ministers would be constrained either by a tendency to adhere to the advice or by a tendency to avoid receiving advice which might conflict with what they ultimately say to caucus. Document V is a Cabinet Minute. I respectfully draw the Court's attention to the said affidavit of Roger Wilkins. Furthermore, it is important that those in government Departments involved in drafting Cabinet Minutes be able to do so - and be able to provide the advice constituted by a Cabinet Minute - without inhibition. Document VI is a document which was prepared at the request of the Cabinet Office in respect of a (then) forthcoming visit of the Premier to a country city. It is the practice of the Cabinet Office, when the Premier proposes to visit a country city, town or region, to request government Departments to provide briefings on controversial issues within their portfolios which relate to the place to be visited. Amongst other things, this enables the Premier to be properly briefed for his visit. In being so briefed he is better able to deal with issues he addresses on his trip, and is better able to understand information he receives on his trip. Documents such as Document VI specifically address controversial matters. It is necessary that such briefings be kept confidential. If such briefings were not kept confidential then there would be significant inhibitions placed on those writing the documents and on the Cabinet Office's ability to ask for them. If such briefings could not be received without inhibition, or if their contents could not be expressed without inhibition, the quality of the briefing of the Premier would be reduced and the value of his trips to country areas would be undermined." 10 Mr Roger Wilkins is the Director-General of the Cabinet Office of New South Wales. He has sworn two affidavits in the proceedings in which he makes plain his objection to the production of documents called for by the subpoena to the Cabinet Office. His first affidavit was sworn with respect to an earlier subpoena but was read in these proceedings. In that affidavit he said: "I object to producing any documentation pursuant to the call on the subpoena if the party which issued the subpoena fails to establish that there is a legitimate forensic purpose for the call which is being made. The call for production which is being made is not confined by reference to Water Sharing Plans related to the Murrumbidgee Valley or any related area. The call as framed seeks production of Cabinet Minutes relating to Water Sharing Plans in all parts of the State. A search by officers of the Cabinet Office has located 13 Cabinet Minutes the Title or Main Purpose of which refer to Water Sharing Plans. Some of these Cabinet Minutes deal with or refer to more than one Water Sharing Plan. The Water Sharing Plans in question relate to various water sources across the State (for example in the Gwydir Valley). I further object, on the ground of public interest immunity, to producing any Cabinet Minute. 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. A Cabinet Minute is a recognised and readily identifiable form of document of State. It has a standard format and a known high status. It is the submission made to Cabinet by the Minister responsible for the subject discussed in the Minute. A Cabinet Minute constitutes the responsible Minister's principal communication in the Cabinet's deliberations on the matters addressed by the Minute. It is the primary source of information before the Cabinet on the question addressed by the Minute. Cabinet Minutes are the most significant class of documents used by Cabinet when it is informing itself and making decisions on high public policy and administration. The public disclosure of any Cabinet Minute - whether by way of production in court or otherwise - would be contrary to the public interest. It is vital to the development of public policy and to the good administration of the affairs of the State that the Cabinet 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 the Cabinet and its Ministers be able to be confident that advice and information which Ministers put before Cabinet will remain confidential. The disclosure of Cabinet Minutes would directly undermine such confidence in a significant way. The operations of the Cabinet are governed by the principle of collective responsibility for any decisions which may be made. 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 who presents a Cabinet Minute to Cabinet is rejected. Even in such cases the Minister is (subject to law) expected to support and implement the decision of Cabinet. The decisions taken by Cabinet often involve matters of controversy and complexity. Good decision-making is only possible if all Ministers can freely express their views and can freely explore relevant issues. There would be a great inhibition of Ministers' capacity to do this if their communications - which from time to time may be inconsistent with the final decision made by Cabinet - were liable to disclosure. This applies to Cabinet Minutes: it is vital that Ministers feel able to include in Cabinet Minutes, without inhibition, such matters as they consider appropriate; Ministers should not be placed in a position where they must draft Cabinet Minutes taking into account the consequences that may flow from publication of those Minutes. The disclosure of Cabinet's deliberations, including any documents 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 Cabinet's deliberations could impede such deliberations by muting a free and vigorous exchange of views between members of Cabinet or by encouraging lengthy discussions entered with a view to subsequent public scrutiny. This would divert Cabinet processes from their proper course and would not be in the interests of public policy. I have read the Cabinet Minutes which have been caught by the present call for production. They deal with matters of high importance arising under the Water Management Act 2000 ('the Act'). In particular, they were prepared as part of an offer to ensure that appropriate 'whole of government' considerations were taken into account in the course of decision-making by the Minister for Land and Water Conservation pursuant to s 50 of the Act. The disclosure of the Cabinet Minutes caught by the present call for production would tend to mute and impede Cabinet discussions and deliberations on future matters, including unrelated matters, because Ministers could no longer be confident that their confidentiality would be respected and upheld by the courts." 11 In his second affidavit Mr Wilkins said: "Paragraph 2 of the schedule to the subpoena calls for production of 'Cabinet Minute number 162 of 2001'. The document caught by that description is a Cabinet Minute of the type the subject of my first affidavit. For the reasons given in my first affidavit, I claim public interest immunity against producing the Cabinet Minute sought by par 2 of the subpoena. I object to producing anything pursuant to par 3 of the schedule to the subpoena unless and until it is demonstrated that the paragraph has a legitimate forensic purpose. Furthermore, the paragraph is oppressive. Because par 3(a) calls for production not merely of 'Any cabinet minute whose title or main purpose includes a reference to the Lower Murrumbidgee Groundwater Sources' but for production of all Cabinet Minutes which refer to such Cabinet Minutes, it would be necessary for a search of the Cabinet office's records to be conducted in two stages. First, a search would have to be made for all Cabinet Minutes whose Title or Main Purpose includes a reference to the Lower Murrumbidgee Groundwater Sources. This can be done by computer and would produce a set of Cabinet Minutes (in this paragraph called 'the first set of Cabinet Minutes') the Title or Main Purpose of which include a reference to the Lower Murrumbidgee Groundwater Sources. Second, however, officers of The Cabinet Office would have to read every Cabinet Minute from 1 August 2001 to the date of the subpoena (31 October 2001) in order to ascertain which of them refer to the first set of Cabinet Minutes. It is difficult to estimate how long this exercise would take because it has not been undertaken before. However, the Cabinet Office does not have an excess of staff and would not be able to undertake the task required without diverting staff from their proper duties as public servants. Because par 3(b) calls for production not merely of 'Any cabinet minute whose title or main purpose includes a reference to water sharing plans where the subject matter would apply to the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources' but for production of all Cabinet Minutes which refer to such Cabinet Minutes, it would be necessary for a search of The Cabinet Office's records to be conducted in three stages. First, a search would have to be made for all Cabinet Minutes the Title or Main Purpose of which includes a reference to water sharing plans. This can be done by a computer search of the Titles and Main Purposes of Cabinet Minutes and would produce a set of Cabinet documents (in this paragraph called 'the first set of Cabinet Minutes'). Second, an officer would have to read all of the Cabinet Minutes in the first set of Cabinet Minutes in order to determine which of them applied to the Lower Murrumbidgee Groundwater Sources. This task in itself would divert staff of The Cabinet Office from their proper duties. If undertaken, however, this second stage of investigation would produce a set of Cabinet Minutes (in this paragraph call "the second set of Cabinet Minutes') the Title or Main Purpose of which include a reference to the water sharing plans where the subject matter would apply to the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources. Third, however, officers of The Cabinet Office would have to read every Cabinet Minute from 1 August 2001 to the date of the subpoena (31 October 2001) in order to ascertain which of them referred to the second set of Cabinet Minutes. It is difficult to estimate how long this exercise would take because it has not been undertaken before. However, The Cabinet Office does not have an excess of staff and would not be able to undertake the task required without diverting staff from their proper duties as public servants. Furthermore, all the documents caught by the description given in par 3 are Cabinet Minutes as described and considered in my first affidavit. For the reasons given in my first affidavit, I claim public interest immunity against producing the Cabinet Minutes sought by par 3 of the subpoena. I object to producing anything pursuant to par 4 of the schedule to the subpoena unless and until it is demonstrated that the paragraph has a legitimate forensic purpose. Furthermore, the paragraph is oppressive. Because par 4(b) calls for production not merely of 'Any cabinet decision whose title or main purpose includes a reference to the Lower Murrumbidgee Groundwater Sources' but for production of all Cabinet decisions which refer to such Cabinet decisions, it would be necessary for a search of The Cabinet Office's records to be conducted in two stages. First, a search would have to be made for all Cabinet decisions whose Title includes a reference to the Lower Murrumbidgee Groundwater Sources (Cabinet decisions do not have a section styled 'Main Purpose'). This can be done by computer and would produce a set of Cabinet decisions (in this paragraph called 'the first set of Cabinet decisions') the Title of which include a reference to the Lower Murrumbidgee Groundwater Sources. Second, however, officers of The Cabinet Office would have to read every Cabinet decision from 1 August 2001 to the date of the subpoena (31 October 2001) in order to ascertain which of them refer to the first set of Cabinet decisions. It is difficult to estimate how long this exercise would take because it has not been undertaken before. However, The Cabinet Office does not have an excess of staff and would not be able to undertake the task required without diverting staff from their proper duties as public servants. Because par 4 (b) calls for production not merely of 'Any cabinet decision whose title or main purpose includes a reference to water sharing plans where the subject matter would apply to the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources' but for production of all Cabinet Minutes which refer to such Cabinet decisions, it would be necessary for a search of The Cabinet Office's records to be conducted in three stages. First, a search would have to be made for all Cabinet decisions the Title of which includes a reference to water sharing plans. This can be done by a computer search of the Titles of Cabinet decisions and would produce a set of Cabinet documents (in this paragraph called 'the first set of Cabinet decisions'). Second, an officer would have to read all of the Cabinet decisions in the first set of Cabinet decisions in order to determine which of them applied to the Lower Murrumbidgee Groundwater Sources. This task in itself would divert staff of The Cabinet Office from their proper duties. If undertaken, however, this second stage of investigation would produce a set of Cabinet decisions (in this paragraph called 'the second set of Cabinet decisions') the Title of which include a reference to the water sharing plans where the subject matter would apply to the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources. Third, however, officers of The Cabinet Office would have to read every Cabinet decision from 1 August 2001 to the date of the subpoena (31 October 2001) in order to ascertain which of them referred to the second set of Cabinet decisions. It is difficult to estimate how long this exercise would take because it has not been undertaken before. However, the Cabinet Office does not have an excess of staff and would not be able to undertake the task required without diverting staff from their proper duties as public servants. Furthermore, I claim public interest immunity against producing any Cabinet decisions. In the practical operations of the Executive Branch of the Government of New South Wales the Cabinet has a place of central and high importance. The highest policy of the Executive Branch is determined by Cabinet. The Cabinet deals with many of the most sensitive issues which are addressed by the Executive Branch. Many policy decisions are of a highly sensitive nature and are not published. In respect of some matters even the fact that the Cabinet has considered the issue is not published and could not be published without harming the public interest. It is vital to the good government of New South Wales that Cabinet decisions be recorded accurately, precisely and as succinctly as the subject matter permits. Cabinet decisions are so recorded. They are recorded in a manner that is not designed for publication. If the records of Cabinet decisions were liable to being disclosed pursuant to the subpoena process it would tend to inhibit the phrasing and recording of Cabinet decisions. In some cases decisions would be phrased and recorded in a manner calculated to be suitable for disclosure to the public. On some occasions there would be a tendency to phrase and record decisions in more circumspect and inhibited language, perhaps with statements of reason and qualification incorporated. There would arise a tendency towards the phrasing and recording of decision in less precise terms. In some cases there could be a tendency not to record very sensitive decisions at all. The greater the sensitivity of a decision, the greater could be the tendency for a decision not to be recorded or to be recorded with less precision. It would be against the public interest for Cabinet decisions not to be recorded or to be recorded imprecisely or verbosely. Therefore, it would be against the public interest to expose any record of a Cabinet decision. In many cases the disclosure of a Cabinet Decision would disclose, implicitly or explicitly, the deliberations of Cabinet. Cabinet decisions may disclose dissenting views or disclose positions of particular Ministers which positions were rejected by Cabinet. It would undermine the principle of collective responsibility upon which Cabinet operates to expose dissenting ministers and opinions to disclosure. My first affidavit addressed in more detail the arguments in support of the need to preserve confidentiality of the Cabinet process and those arguments apply equally to Cabinet decisions. 12 The Director-General of the Cabinet Office submits that the subpoena directed to his office has no legitimate forensic purpose. It is submitted that the Association must at least be able to show that it is "on the cards" that the documents will materially assist the Committee's case: Saleam v R (1989) 16 NSWLR 14. A suspicion that the documents may assist the subpoenaed party will not be enough (see Mahoney AP in Carroll v Attorney General NSW (1993) 70 A Crim R 162) and the law may require, in civil cases, that the subpoenaing party can demonstrate that there are definite, concrete, or reasonable grounds to believe that the subpoenaed documents would materially or substantially assist the subpoenaing party's case. 13 It was submitted that all of the documents now sought under both subpoenae are protected by public interest immunity. The statutory expression of the applicable rule is found in s 130(1) of the Evidence Act 1905: "130(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence." 14 See also Pt 36 r 13 of the Supreme Court rules made applicable in the Land & Environment Court by virtue of Pt 6 r 1(2) of the rules of this Court. 15 The principles to be applied to an application for public interest immunity are well established and are discussed in Sankey v Whitlam (1978) 142 CLR 1, Alister v The Queen (1984) 154 CLR 404 and Commonwealth v Northern Land Council (1993) 176 CLR 604. It was submitted on behalf of the Cabinet Office and the Department that: "Each of the six documents produced by the Department is entitled to a high level of protection from disclosure. The Cabinet Minute is entitled to the highest (or, alternatively, nearly the highest) level of protection. The other documents are also entitled to a very high level of protection. Each document relates to the affairs of government at the highest level and involves the public service briefing the ministry on public policy and administration. Each document falls well within already recognised bounds of the protection afforded by public interest immunity. Paragraph 2 of the schedule to the subpoena addressed to The Cabinet Office expressly calls for a Cabinet Minute. The document is plainly protected by a very powerful claim of public interest immunity. Given the width of their terms, it is difficult to see how pars 3 and 4 of the schedule to the subpoena addressed to The Cabinet Office have a legitimate forensic purpose. They seek not only production of Cabinet Minutes and decisions dealing with subjects which might have a connexion to the present proceedings (and thus might be thought to be potentially relevant to the proceedings) but also all Cabinet minutes and decisions which merely refer to the potentially relevant Cabinet Minutes and decisions. This, with respect, is too broad a call. It involves a great degree of work and the production of many documents which would have no bearing on the present proceedings. The call has the hallmarks of a fishing expedition. Moreover, mere relevance is not enough to warrant production of a document on subpoena. It is also necessary that the subpoenaing party demonstrate that the call for documents can reasonably be expected to advance its case (or damage its opponent's case). There is nothing to indicate that documents which merely refer to other documents which might be relevant are documents which reasonably could be expected to advance the case of the applicant (or damage the case of the respondent.) Furthermore, pars 3 and 4 are oppressive. To comply with these paragraphs of the schedule to the subpoena it would be necessary for The Cabinet Office first to identify all the Cabinet Minutes and decisions the Title or Main Purpose of which contained the references described in the subpoena (thus producing a set of potentially relevant Cabinet Minutes and decisions) and then to read every other Cabinet Minute and decision since 1 August 2001 in order to determine which of them refer to the potentially relevant Cabinet Minutes and decisions. This would involve a substantial, unreasonable and unwarranted diversion of the resources of The Cabinet Office." 16 For the Committee it was submitted that the relevant principles are to be found in Adelaide Brighton Cement v South Australia (1999) 75 SASR 209 which are reflected in s 130 of the Evidence Act (see State of NSW v Ryan (1998) 101 LGERA 246). 17 Applying these principles it was submitted: "The first point of principle requiring application in the present case is that there is no single category of information or documents the subject of the current motions. As is apparent from the affidavit of Ms Westacott, the documents held by the Department include a Cabinet Minute, but also include 'speaking notes' prepared for a Minister by public servants whose standing is presumably not of sufficient seniority to warrant reliance by the Director-General. To similar effect, the affidavit of Mr Wilkins is directed to a number of Cabinet Minutes which are described by him as dealing with 'matters of high importance arising under the Water Management Act 2000': Affidavit, par 11. Mr Wilkins also identifies the nature of a Cabinet Minute as a document involving a submission to Cabinet by the responsible Minister: Affidavit, par 6. That description is accepted, but the relevance of concerns with respect to the disclosure of Cabinet deliberations (affidavit, par 10) is, in that context, misconceived. In addition, Mr Wilkins places some weight upon the principle of Cabinet solidarity, which requires Ministers to support decisions of Cabinet and implement them in relation to their portfolios: Affidavit, par 8. That principle is acknowledged and its relevance to maintaining confidentiality of Cabinet deliberations is also acknowledged; see discussion of collective responsibility in Egan v Chadwick (1999) 46 NSWLR 576 at [36]-[47] and of immunity at [48]-[71] (Spigelman CJ). However, reliance upon that principle in the present case gives credence to the complaint made by the Applicant in its challenge to the Plan, namely that the Minister was not exercising an unfettered statutory discretionary power in accordance with considerations dictated by the statute: Summons, ground 2. It is clear that documents, such as notebooks, which record the actual deliberations of Cabinet, or a committee of the Cabinet, are treated as the subject of high confidentiality, because the deliberations form part of the mechanism of responsible government: see, eg The Commonwealth v Northern Land Council (1992-1993) 176 CLR 604 at 614.8. However, it does not follow that the same strict approach should be taken to decisions of the Cabinet, and in particular decisions which are designed to form the basis of the exercise of a discretionary power. It is also true that public interest immunity is not in terms capable of being waived: see, eg, State of Victoria v Seal Rocks Pty Ltd (2001) 3 VR 1 at [16]. Nevertheless, the fact that there has been some element of disclosure or public reliance upon a Cabinet decision, whilst not constituting any form of waiver in the traditional meaning of that term, is a factor which must properly be placed in the balance for the purposes of the judgment required by s 130(1) of the Evidence Act. Similarly, although questions of 'fairness' of the kind adverted to in relation to legal professional privilege in Mann v Carnell (1999) 2201 CLR 1 at [29] do not arise for the same reason, nevertheless partial disclosures both reduces the claimed level of confidentiality and invites attention to whether the disclosure was accurate or misleading. Again, these are factors which may properly be taken into account in determining whether a document should be available for inspection. Finally, we note that the claims asserted on the part of the Government are blanket claims. There is no attempt to distinguish parts of a document which may constitute submissions, or record deliberations, from parts which formulate a decision which is then approved or accepted as a Cabinet policy. If the Government is not prepared to undertake a task of that kind, the only appropriate course is for the document to be produced to the Court so that it may inspect the document and determine what parts if any are properly immune from disclosure in the circumstances of the case. Because such distinctions may clearly be relevant in the present circumstances, and so that the matters of principle can be debated without reference to specific documents (which are not available to the applicant) a reformulation of the subpoena has been filed and served which permits distinctions to be drawn along the lines noted above: Subpoena directed to 'Proper Officer, Cabinet Secretariat', dated 31 October 2003, pars 2-4. (Pars 1 and 50 are not pressed.)" 18 Although the matter has now been pleaded with care the case which the Committee seeks to make has not been argued. The nature of a Minister's plan and the legitimate role, if any, of government policy in the formulation of that plan have not been examined except in a cursory fashion. The Minister was not represented at this hearing and his obligation, if any, to comply with s 16 has not been argued. 19 It is sufficient for present purposes to provide a summary of the relevant principles relating to public interest immunity. They seem to me to be as follows:

There is no absolute immunity from production and inspection of cabinet documents: Sankey at 43, 58-59, 95-96; Northern Land Council at 616. In this context "cabinet documents" extends to: (a) Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments; (b) papers prepared as submissions to Cabinet; (c) any documents which relate to the framing of government policy at a high level Sankey at p 39.

The general rule is that a 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.

The public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered: Sankey at 38, Conway v Rimmer (1968) AC 910 at 940.

The court must weigh the competing elements of the public interest: Sankey at 43, 60-64, 98-99.

A claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service: Sankey at 39.

The court has power to inspect the documents in order to determine any claim. However, there remains some controversy as to the circumstances in which that power should be exercised. If the documents clearly fall into a class which attracts immunity they should not be inspected: Northern Land Council at p 617.

Documents recording the actual deliberations of cabinet are more likely to attract immunity than documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet: Northern Land Council at 614-615.

Documents relating to a topic which is current or controversial will attract a high level of confidentiality: Northern Land Council at 617-618.

Documents in relation to a matter which has passed into history attract a lesser level of confidentiality, as do documents which may have been already published.

The intended use of documents, particularly if required to found a defence to a criminal charge, is a relevant consideration. Where a person's liberty is at stake production is more likely to be ordered: Sankey at 42 and 61-62.

(a) It is unlikely that disclosure of the records of Cabinet deliberations upon current matters would be appropriate in civil proceedings: Northern Land Council at 618. (b) Documents and communications passing between a Minister and the head of his department relating to cabinet proceedings and material prepared for Cabinet are likely to be protected: at Sankey 99. (c) Reports relating to important matters of policy between public servants and Ministers or between senior public servants also warrant a high level of protection: at Sankey 99. 20 In the present case it is plain that all of the documents sought in both subpoenae relate to a matter of contemporary controversy. That controversy is reflected in debates at a national, state and local level about the appropriate use of the available source of water. The debate raises social and economic questions of fundamental significance to the people of New South Wales. 21 The subpoena addressed to the Cabinet Office seeks Cabinet minutes as well as Cabinet decisions. Both Cabinet minutes and Cabinet decisions will relate to the formulation of government policy, the latter are likely to reflect it. Both types of documents will disclose part or all of the debate within Cabinet. When the document relates to a matter which is one of contemporary political controversy I am satisfied that it should only be disclosed in extraordinary circumstances, especially in civil proceedings. 22 As I have stated the case which the Committee seeks to make is that the Minister, exercising the discretion under s 50, acted under dictation of Cabinet. Whether this is so will be revealed by an examination of the Minister's decision-making processes This examination will presumably be undertaken during the trial in a conventional manner. There is no evidence currently before the court that could found an inference that the Minister inappropriately relinquished his discretion. In the absence of such evidence I see no basis at all for requiring disclosure of the documents. 23 In any event, of the documents presently sought by the applicants only the actual decision of the Cabinet is apparently relevant to the case as pleaded. Whether the other documents contain anything of relevance is a matter of speculation. Further, even without s 16, the role which a decision of the Cabinet can legitimately play in the exercise by a Minister of a statutory discretion would need to be considered before it would be appropriate for the court to determine whether the documents should be inspected. Whether knowledge of the content of the Cabinet decision as opposed to the part, if any, which it played in the Minister's decision making process, could assist the applicant's case would need to be considered. 24 It is plain that prima facie all of the documents identified in the subpoenae attract public interest immunity. If not actual Cabinet documents they are communications designed to assist the Minister in carrying out his functions. However, whether the court should inspect the documents, and then, whether the applicant should be allowed to inspect them are not matters which can presently be determined. They must await the development of the applicant's case and the Minister's defence at the trial. 25 For these reasons I decline, at this time, to make any of the orders in either notice of motion but adjourn further consideration of both motions to the trial. Costs are reserved. **********

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