The principles governing inspection of Cabinet documents.
47 Much of the law of privilege has developed with the rules for the discovery and inspection of documents, since an objection to produce a document before trial may be taken on this ground. Public interest immunity was formerly known as "Crown privilege", the latter term being abandoned for reasons described by Viscount Simon in Duncan v Cammell, Laird and Co Ltd [1942] AC 624 (at 641-2):
"The withholding of documents, on the ground that their publication would be contrary to the public interest, is not properly to be regarded as a branch of the law of privilege connected with discovery. "Crown privilege" is for this reason not a happy expression. Privilege, in relation to discovery, is for the protection of the litigant and could be waived by him, but the rule that the interest of the state must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litigation, and, indeed, is a rule on which the judge should, if necessary, insist, even though no objection is taken at all."
48 Waiver of public interest immunity is not possible: Rogers v Home Secretary [1973] AC 388 at 406-7. Moreover, the rule which permits secondary evidence of a privileged document to be adduced is inapplicable to documents which are the subject of a claim for public interest immunity.
49 A distinction is often drawn between a "class claim" and a "contents claim". A class claim is a shorthand reference to those claims for immunity which are made in relation to documents which belong to an identifiable class. Typical examples include Cabinet minutes, and diplomatic despatches. It may be that the document in question comprised in the class contains no sensitive material. A contents claim, on the other hand, is made in respect of a particular document on the ground that it contains material the contents of which are so sensitive as to warrant the non-disclosure of the document.
50 In Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1111 Lord Wilberforce commented:
"The claim to "public interest immunity" in respect of these documents is clearly what has come under a rough but accepted categorisation to be known as a "class" claim, not a "contents" claim, the distinction between them being that with a class claim, it is immaterial whether the disclosure of the particular contents of particular documents would be injurious to the public interest - the point being that it is the maintenance of the immunity of the class from disclosure in litigation that is important; whereas in a contents claim the protection is claimed for particular contents in a particular document. A claim remains a class even though something may be known about it contents: it remains a class even if parts of documents are revealed and parts disclosed."
51 Speaking broadly, the Court will not compel or permit the disclosure of information where to do so would be injurious to the public interest. The public interest must be understood as having two separate components - the public interests whose protection demands non-disclosure and that of the proper administration of justice which calls for disclosure of relevant material: Sankey v Whitlam (1978) 142 CLR 1 at 38 and 49.
52 It has long been recognised that there are classes of such vital interest to the State that documents belonging to them should not be produced for inspection. These include Cabinet minutes, minutes of discussions between heads of government departments and despatches from Ambassadors abroad. In Conway v Rimmer [1968] AC 910 Lord Reid said at 952:
"I do not doubt that there are certain classes of documents which ought not to be revealed whatever their content may be. 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-informed 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."
53 In Cross On Evidence 6th (Australian edition at 769) Cabinet papers are described as "the archetype" of a class for which public interest immunity will normally be granted. However, the courts still regard the matter as one requiring a balance to be struck. They are not prepared to countenance automatic immunity even for Cabinet papers: Air Canada v Secretary of State for Trade (No 2) [1983] 1 AC 394 at 432; Sankey v Whitlam (supra); R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 and Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60.
54 Although the law relating to public interest immunity as a basis for the exclusion of evidence has now been codified for the purpose of proceedings brought in federal courts (see Evidence Act 1995 (Cth) s 130), the provisions of that Act concern the adducing of evidence and do not apply to a request for inspection of documents pre-trial: Mann v Carnell (1999) 201 CLR 1 and Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. It follows that the common law principles which have evolved in relation to public interest immunity are applicable to the determination of the issues at this stage of the present proceeding.
55 In Commonwealth v Northern Land Council (1993) 176 CLR 604 an action had been brought, at first instance, by the Northern Land Council to set aside an agreement between it and the Commonwealth on the ground of alleged unconscionable conduct. The Commonwealth discovered notebooks containing notes made by Cabinet officers of the deliberations of Cabinet and other containing notes made by departmental officers of the deliberations of Cabinet or committees of Cabinet. The Commonwealth resisted inspection of the notebooks on the ground that the disclosure of their contents was against the public interest.
56 The High Court, in a majority judgment, held that the production to the court of documents recording Cabinet deliberations should only be ordered in exceptional circumstances which gave rise to a significant likelihood that the public interest in the proper administration of justice outweighed the very high public interest in the confidentiality of such documents. It was said to be doubtful whether civil proceedings would ever warrant the production of documents recording Cabinet deliberations upon a matter which remained current or controversial.
57 The Court observed that in criminal proceedings exceptional circumstances may exist if withholding the documents would prevent a successful prosecution or impede the conduct of the defence. Where such exceptional circumstances existed, the appropriate course to be followed would ordinarily be for the judge to inspect the documents in order to decide whether the relevance of the material to the proceedings in which disclosure was sought was sufficient, even in those exceptional circumstances, to justify disclosure. Importantly for present purposes the Court commented (at 619):
"Having regard to the strength of the claim for immunity, a judge ought not order the disclosure of the contents of documents [recording Cabinet deliberations] unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings." (emphasis added)
58 The Court referred to Sankey v Whitlam (supra) where a former Prime Minister and three former Ministers were charged with unlawful conspiracy to borrow a large sum of money. Gibbs ACJ had noted that the matters referred to in the documents, which he categorised as "state papers", related to a proposal which had never been implemented. Three years had gone by, and there had been a change of government. His Honour expressed the view that if the documents were withheld "the informant will be unable to present to the court his case that the defendants committed criminal offences while carrying out their duties as Ministers". Stephen J observed that the ordinary reasons supporting a claim for public interest immunity seemed "curiously inappropriate when to uphold the claim is to prevent successful prosecution … because what is charged is itself the grossly improper functioning of [the executive] arm of government and of the public service which assists it".
59 In Sankey v Whitlam the documents which the Court ordered to be produced were not even Cabinet documents, let alone documents disclosing Cabinet deliberations. This can be contrasted with Commonwealth v Northern Land Council which was, in any event, a civil case albeit one in which it was contended that the Commonwealth had behaved unconscionably, and in breach of its fiduciary duty. In these circumstances the public interest in the immunity from of the deliberations of Cabinet was of the highest order, and the Commonwealth should not have been ordered to produce the documents for inspection.
60 In Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31, a Full Court of the Federal Court allowed an appeal from an interlocutory decision of a primary judge whereby his Honour ordered the Commonwealth to discover a letter from a Minister to the Prime Minister, for which letter the Commonwealth had claimed public interest immunity.
61 The respondent Union (the CFMEU) alleged the contravention of s 170NC of the Act by the Employment Advocate who was said to have threatened to take action with intent to coerce Multiplex Constructions Pty Ltd, the CFMEU and two other unions to vary an agreement. The Commonwealth relied upon an affidavit sworn by Mr Alan Henderson in support of its claim for public interest immunity regarding the letter.
62 The Full Court noted that the letter was prepared outside Cabinet and that a lesser degree of protection against disclosure was afforded to it than would be the case with documents which record actual Cabinet deliberations. The primary judge had accepted that it was probable the contents of the letter were "involved in" the deliberations of Cabinet. He also formed the view that the substantive proceeding involved a very serious allegation - a gross abuse of power by a senior public official - and that the letter might be "critical" in the proceedings. Having inspected the letter, the primary judge concluded that it was an important document which the CFMEU was entitled to have before the Court as part of the evidence to ensure a fair disposition of the proceedings.
63 The Full Court analysed the nature of Cabinet responsibility and the need for confidentiality. It cited Attorney-General v Hamilton (1993) 2 IR 250 at 266 where the Chief Justice of the Supreme Court of Ireland referred to the principle of collective responsibility in these terms as:
"The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by majority. The obligations to accept collective responsibility for decisions and, presumably, for acts of government as well, involves, as a necessity, the non-disclosure of different or dissenting views held by members of the government prior to the making of decisions."
64 See also Egan v Chadwick (1999) 46 NSWLR 563 at 573-576 per Spigelman CJ and at 589-592 per Priestly JA.
65 Counsel for the CFMEU accepted that documents that actually recorded or would reveal Cabinet deliberations were generally immune from disclosure other than in exceptional circumstances. They also accepted that there was another class of "Cabinet documents" which included "Cabinet submissions" which they submitted were entitled to a lesser degree of protection. They submitted that the allegations made against the Employment Advocate in the substantive proceedings were akin to criminal allegations of culpable conduct contrary to statute. Accordingly, although the penalty involved was in the nature of a civil penalty, due regard should be had to the seriousness of the allegation in carrying out the balancing process which the law required.
66 The Full Court reasoned that the letter was in the form of a proposal for discussion by Cabinet, and that it disclosed the Minister's proposal, views, and at least some of his arguments. The evidence established that it was an important Cabinet document. Although it did not in terms record actual deliberations of a Cabinet meeting, it was circulated amongst Ministers in the Cabinet room at the meeting, and the matters in it were discussed and considered by those present. In that sense it revealed what would in the ordinary course be discussed by Cabinet. It could reasonably be inferred that the Minister would have attended the meeting and put before Cabinet the position and arguments as set out in the letter. The position taken by the Minister in Cabinet was part of the Cabinet's deliberations. The Full Court said (at 43):
"Disclosure of the Minister's position in this context would not only be contrary to the convention of the collective responsibility of Cabinet, because it identifies a particular Minister's views, but would also be contrary to the objective of ensuring that decision-making and policy development by Cabinet is uninhibited, because members of Cabinet could be hampered in the performance of their functions to candidly and comprehensively consider Cabinet proposals if subjected to publication of the details of discussions within the Cabinet room: see Northern Land Council at 615-616."
67 The Full Court concluded that when the evidence was balanced, the CFMEU had not established any exceptional circumstances that outweighed those militating against disclosure. The content of the letter, on the evidence, did not appear to be "crucial" to the determination of the issues in the substantive proceeding. Moreover, although serious allegations had been made, the letter was not "central to the resolution of the substantive dispute". Accordingly, the claim for public interest immunity had been made out.