Plaintiff v Defendants

2 In the course of giving discovery in this proceeding, the Commonwealth has objected to producing a number documents, or parts of documents, on the ground that those documents, or certain information in them, relate to matters of state and that the public interest in preserving their secrecy outweighs the public interest in their production in this litigation. Traditionally the objection has been described as a claim for public interest immunity ('PII').

3 The objections are made under s 130 of the Evidence Act 2008 (Vic) ('the Act'), applied at the stage of discovery by s 131A of the Act. Section 130(4)(f) is the particular ground relied upon for submitting that the documents or information relate to 'matters of state'. Under that paragraph, relevantly, a document or information is taken to relate to a matter of state if the production of it on discovery would 'prejudice the proper functioning of the government of the Commonwealth'.

4 Kamasaee has challenged the sufficiency of the Commonwealth's evidence tendered in support of its claim for public interest immunity and, in that context, has sought leave to cross examine the deponents of affidavits filed by the Commonwealth. It is that application which I must first determine.

The nature of and basis for the immunity claims

5 The documents the subject of this particular ruling are only those in respect of which objection is taken on the basis that the documents are 'Cabinet documents'. There are now 25 such documents, each of which is said to fall into one or more of four categories that the Commonwealth submits should attract public interest immunity as Cabinet documents.

6 The statutory immunity in s 130 is intended to reflect common law principles and its content and operation is informed by the common law.[1] At common law, 'a rough, but acceptable' division is recognised between public interest immunity claims based on the class of a document and those based on the contents of a document.[2]

7 Documents properly described as 'Cabinet documents' are recognised as a class of documents subject to public interest immunity.[3] The rationale for the protection of Cabinet documents in the public interest was explained by the High Court in Northern Land Council:

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. ... the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential ... 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. ... 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. [4]

8 Even though prima facie entitled to immunity, the immunity for Cabinet documents is not absolute.[5] The ultimate immunity of any Cabinet document falls to be determined by balancing the public interest for production or non-production. Evidence in support of immunity should state with precision the grounds on which it is contended the document or information should not be disclosed so as to enable the Court to evaluate the competing interests.[6]

9 Different formulations have been given in the authorities for documents that are prima facie subject to public interest immunity as Cabinet documents. Drawing from authorities, they would include:

(a) documents that record the deliberations and decisions of Cabinet (said to have 'pre-eminent claim to confidentiality'[7]), such as Cabinet minutes;[8]

(b) documents submitted to and considered by Cabinet, including documents that are both identical in all relevant respects to those considered by Cabinet and precursors of documents submitted to Cabinet;[9]

(c) documents brought into existence within governmental departments and instrumentalities for the purpose of preparing a submission to Cabinet;[10]

(d) documents and communications passing between a Minister and the head of his department, or between heads of departments, relating to Cabinet proceedings and material prepared for Cabinet;[11] and

(e) documents relating to framing of government policy at a high level.[12]

10 Not all of the categories into which the 25 documents in this case are said to fall equate precisely with those that have previously been recognised as describing a category of 'Cabinet document'. But, in essence, each of the category formulations recognised in the authorities represents a means of describing the sufficient connection with or proximity to actual Cabinet deliberations which, having regard to the rationale for the immunity, will prima facie attract protection from disclosure for a particular document whatever its content.

11 The evidence for the Commonwealth as to why disclosure of the 25 documents in this case would prejudice the proper functioning of the government has been given by two very senior public servants: Dr Martin Parkinson, Secretary of the Department of the Prime Minister and Cabinet ('PM&C') and Mr James Fox, First Assistant Secretary of the Cabinet Division of PM&C.

12 Despite relying primarily on the class nature of the documents in question, in addition the Commonwealth supports its case for immunity by also relying on the specific contents of documents. Dr Parkinson's evidence in support of the 'class' basis finds its conclusion in this statement:

In my opinion any release of documents (or parts of documents) that breached the confidentiality of the Cabinet process outlined above would significantly interfere with the efficient operation of Cabinet, and therefore decision-making and policy development in Australia, regardless of the subject matter of the document. Any compromise of the confidentiality of Cabinet would, in my view cause current and future Cabinet Ministers, as well as the officials tasked to brief them about matters to be discussed in Cabinet, to apprehend what was written by them for the purposes of Cabinet and what was discussed in Cabinet may not remain confidential, and therefore temper what they wrote or said in the course of Cabinet deliberations. This would undermine the process of decision-making and policy development in Australia for the reasons set out above.[13]

13 While more particular claims are set out separately in the affidavit of Mr Fox, Dr Parkinson's evidence in support of an immunity based on specific contents of documents is put broadly in these terms:

... the damage to the public interest that would result from the disclosure of the PII (Cabinet) documents would, in my view, be particularly severe given that, I am informed by Mr Fox and believe that these documents record or reveal, or allow reliable inferences to be drawn about Cabinet deliberations or decisions on Australia's policies on border protection in recent years.

This subject continues to remain at the forefront of Australian policy development and political debate and Australia's standing in the international community. The release of documents relating to relatively recent Cabinet deliberations in relation to this issue would, in my view, have a particularly chilling effect on the ability of Cabinet meetings to provide a forum in which a comprehensive and candid discussion by Ministers could take place.[14]

14 Some of the claims for public interest immunity relate to the entire document and others relate only to part of the document. Each document has been categorised by reference to a number: either 1, 2, 3 or 4 or, in some cases, by reference to two or more numbers. Those numbers relate to a category description. The category descriptions have been assigned by Mr Fox.

15 Adopting Mr Fox's categorisation, Dr Parkinson gave reasons why the public release of any document falling into one of those four categories would prejudice the national interest of Australia. Mr Fox agreed with and adopted Dr Parkinson's explanation why disclosure of documents of each category would harm the national interest, and then gave an individual description of each document and stated why disclosure of it would cause such harm. In response to the plaintiff's criticism of its evidence, the Commonwealth filed a further affidavit by Dr Parkinson. In it, Dr Parkinson said that he had since read each of 14 prime documents and that he considered their disclosure would have 'serious consequences for the way high level government decision-making and policy development occurs in Australia, both now and into the future'.

16 I have set out in Part I of the Appendix to this ruling a list of the 25 documents still in issue between the parties, together with the document ID, title, class and whether it is a claim for full or part immunity. The number appearing in the first column corresponds to the document's place in the order in which Mr Fox's description of it appears in paragraph 15 of his affidavit. In Part II of the Appendix I set out the four categories of Cabinet documents identified by Mr Fox together with, in each case, Dr Parkinson's evidence as to why disclosure of any document in each such category would prejudice the national interest.

17 In Part III of the Appendix I have identified each of the 14 prime documents, grouping with them any documents that are drafts or copies of a prime document. Beneath each is, first, Mr Fox's detailed description of the prime document and, secondly, the plaintiff's submission in respect of it.

18 What follows in this ruling assumes the reader has recourse to the information in the Appendix.

19 After notice was given by the plaintiff of objections to parts of the affidavits affirmed by Dr Parkinson and Mr Fox, the Commonwealth filed and served the second affidavit affirmed by Dr Parkinson. The plaintiff concedes that some but not all of his concerns about the Commonwealth's evidence have been addressed by the further affidavit.

20 The objections were that the assumptions lying behind Dr Parkinson's opinions expressed in his first affidavit were not adequately identified or proven, and his reasoning toward his conclusion was not adequately stated. The challenged opinions were those to the effect that the disclosure of any documents falling in any of the four categories would breach Cabinet confidentiality by allowing reasonable inferences to be drawn about, and in many cases directly revealing, the position taken by a particular Minister in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions.[15] In relation to Mr Fox, objection was taken to the extent that his opinion (that disclosure of each document would harm the national interest) was premised on the opinions of Dr Parkinson as described above.

21 It was in this context that the plaintiff applied to cross examine Dr Parkinson and Mr Fox. The Commonwealth resists that course so that it is necessary for me to determine that application as the first task. The plaintiff did not press for a determination of his objections to the evidence until the completion of all the evidence gathering processes.

22 The principles relating to the question whether cross examination should be allowed were not in dispute.

23 Undoubtedly the court has power to permit cross examination in interlocutory hearings.[16] But special considerations apply in the case of objections to production on the basis of public interest immunity. Generally speaking, cross examination of deponents of affidavits in support of public interest immunity is regarded as 'exceptional' or to be 'rarely' permitted.[17] More usually, a court would require further evidence to be adduced in order to overcome any defect that is apparent on the face of the evidence so far produced.[18]

24 The primary basis for reluctance to permit cross examination is the inherent risk that it may reveal the very information, inimical to the national interest, that is sought to be disclosed before any final determination is made on the immunity objection.[19]

25 However, rare cases exist in which cross examination is appropriate. For example, cross examination has been permitted, or at least considered, where there was a concern about the way the immunity was claimed after numerous changes to the grounds of claim[20] or where the nature of the affidavit in support of the claim was vague and unsatisfactory.[21] Still, even if the court is concerned about the nature of the evidence, it may be more appropriate for the judge to first examine the documents themselves to determine whether there should either be supplementary evidence or cross examination.[22]

26 In all cases it is a matter for the court to address the particular circumstances to determine whether cross examination should be permitted or some other course be preferred.[23]

27 The plaintiff identified three general topics on which cross examination could be permitted although he appeared to concede that the court would be justified in taking the view that, before cross examination was allowed, if allowed at all, the Commonwealth could be directed to file further evidence to address the deficiencies.

28 In making submissions about cross examination, the plaintiff confined himself principally to what he described as the 'first stage' of the process for determining the outcome of a public interest immunity objection. Reference to the stages was a reference to the two processes inherent in the test set out in s 130(1) of the Act, which provides:

(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.

29 The first stage is to determine whether there is a public interest in preserving secrecy or confidentiality in relation to information or a document that relates to a matter of state. The second stage is to then balance that interest against the public interest of admitting the information or document into evidence.[24]

30 For the purposes of the court's analysis in the first stage the plaintiff identified two general deficiencies in the Commonwealth's evidence in respect of which cross-examination might be permitted. One was the evidence about the relationship between a document, or information within it, and an actual Cabinet deliberation. The other was evidence that disclosure would reveal specific things pertaining to Cabinet matters, either directly or by reasonable inference.

31 The first alleged deficiency is uncertainty in the evidence concerning the proximity of some documents to the heart of an actual Cabinet deliberation. If the concern lying behind the statutory immunity is the revelation of Cabinet deliberations, the plaintiff argued that the evidence about some of the documents produced outside of Cabinet did not sufficiently identify the connection which the document had to an actual Cabinet deliberation so as to enable the court to properly assess whether the document belonged to the protected class of Cabinet documents.

32 For this aspect of the plaintiff's argument he focussed on:

(a) any document in categories 1 and 2 that fell into the description of a 'precursor'; and

33 Category 1 describes documents submitted to and considered by Cabinet including 'precursors of documents submitted to Cabinet'. Category 2 refers to documents which reveal the contents of the document to be submitted to and considered by Cabinet including attachments describing new policy proposals ('NPPs') and their precursors. In Dr Parkinson's explanation of the harm which may be caused by the disclosure of category 2 documents, he expounded this category as including minutes to the Secretary of the Department of Immigration and Border Protection and submissions to the Minister which revealed the contents of Cabinet's submissions or other documents intended to be circulated in the Cabinet room, or their precursors.

34 The plaintiff observed that the fact that documents disclosing the deliberations of Cabinet have a pre-eminent claim to confidentiality implies that the more closely documents are connected with actual Cabinet deliberations, the more powerful would need to be the countervailing public interest in favour of disclosure to outweigh the public interest in having them protected. Logically, it was argued, the converse must also be true: the more tenuous the link between a document and actual Cabinet deliberations, the more the balance would tip towards disclosure. It was then argued that there was insufficient clarity in the Commonwealth evidence about what is precisely meant by 'precursors' and just how close to or distant from an actual Cabinet room deliberation those particular documents are.

35 I make these observations. Any alleged ambiguity or uncertainty in the use of the word 'precursor' has to be assessed in the light of the specific detailed description of each document. For that level of particularity, one then needs to turn to Mr Fox's individual description of each document.

36 In addition, uncertainty about the degree of connection to an actual Cabinet deliberation is more likely to assume significance in respect of category 2 documents than category 1 documents. Category 1 documents, by definition, are documents actually submitted to and considered by Cabinet, so precursors of such documents, presumably, retain a very close connection to actual Cabinet deliberation. On the other hand, category 2 documents are a step removed from category 1 documents in that they are only documents that 'reveal the contents of' a document to be submitted to and considered by Cabinet. Being a precursor to that type of document has a greater degree of elasticity.

37 The plaintiff also argued that the descriptions of both categories 3 and 4 produces similar difficulties for the court to determine the degree of proximity to or connection with actual Cabinet deliberations. Category 3 refers to documents prepared by a department 'to brief their Minister for Cabinet' and category 4 describes documents prepared by the department 'in order to inform and support Cabinet decision making'. Dr Parkinson's more detailed description of the harm that may come from disclosing category 3 documents included the statement that they 'may include departmental advice on particular proposals'. In respect of the harm that may come from disclosing category 4 documents, he deposed that 'documents in this category may include preparatory material, some of which was subsequently included in a Cabinet submission'.

38 The general elasticity within these descriptions does cause some problems in enabling the court to evaluate the proposition that a relevant public interest exists in preserving the secrecy or confidentiality of documents within these classes. But, it is not necessarily for the reason advanced by the plaintiff, as I will come to shortly.

39 To the extent that the evaluation requires an understanding of the real connection or proximity that a particular document has with or to any particular Cabinet deliberation, these descriptions are, in my view, a little too vague. Of course, further detail is given about each document by Mr Fox. In some cases, that further detail helpfully elucidates where a document originated on the path towards a Cabinet deliberation and the extent to which it might reveal the contents of a submission that was put, or might have been put, to a Cabinet meeting. Others, however, are less helpful.

40 By way of example, document A.100.3531.0477, a category 4 document, is titled 'Offshore Infrastructure Branch - Post Settlement/Assessment NPP'. Mr Fox describes the document as 'part of the costing process required to support consideration of an NPP by the Cabinet.' The plaintiff suggests that this evidence shows the document and the information contained in it is quite removed from any actual Cabinet consideration or deliberation.

41 Another example is, document A.100.3010.4770, a category 2 document titled 'Submission to Minister'. It is described by Mr Fox as a submission to the Minister describing a range of policy options for the management of health issues at the offshore processing centres and that, once the Minister's views were obtained, 'a submission to Cabinet was drafted incorporating those views'. The plaintiff submits that no evidence is provided to link or relate the 'policy options' referred to in the submission to the Minister and the 'views' of the Minister that were ultimately included in a Cabinet submission.

42 Yet another example is document A.100.3677.6263, also a category 2 document. Mr Fox describes it (and documents like it) as a document that forms part of the exchange between the Departments of Immigration and Border Protection, and Finance, prepared with a view to agreeing the costs of NPPs to be submitted to the Expenditure Review Committee as part of the Cabinet's consideration of the submissions. The plaintiff complains that no evidence is provided as to whether any of the associated NPP was actually submitted to or considered by the committee nor is it possible to gauge the level of detail or specificity at which the particulars of the policy proposals are described within the document.

43 The Commonwealth has not given any description of what the overall 'Cabinet process' into which these various categories of documents, and specific instances of those categories, fit. Dr Parkinson alludes to the 'well established and well understood' process without giving any further elucidation.[25] It would assist the court to have a more comprehensive overview of that process. It would also assist the court to understand in respect of each particular document its whereabouts on the continuum of the policy development process; that is, where it sits in relation to the origin of the process, on the one hand, and the final destination of a Cabinet meeting, on the other. It is readily understood that 'distance' or 'proximity' alone are not the determinant. Nonetheless, given the potential breadth of documents in categories 3 and 4, and the elasticity in the notion of 'precursor', such evidence would be of assistance in this case.

44 But the plaintiff pressed on the court another ground of deficiency in the Commonwealth's evidence that exposed a difference on a matter of principle between the parties. That difference concerned the question whether the touchstone for classifying a document as a 'Cabinet document' is the extent to which, if disclosed, it would reveal a matter actually considered by Cabinet, or merely 'might' reveal a matter considered by Cabinet (it not being known or established that it did go to Cabinet). The plaintiff's contention is that the Commonwealth should make it clear whether each particular document contains a policy recommendation or submission that was actually considered by Cabinet or merely refers to an option that might have been considered by Cabinet but ultimately never was. Document 4770, for example, is a document whose description contains the seeds of both possibilities. Immunity is claimed because -

... it would disclose policy options either considered by the Cabinet or prepared for possible consideration by the Cabinet.

45 It may very well be of assistance to the court to know whether a particular policy option was in fact ultimately considered by Cabinet in evaluating the mix of factors which must be considered in performing the balancing consideration (ie at the second stage). But the issue between the parties is whether, for a document that was prepared outside of Cabinet to be embraced under the rubric of 'Cabinet documents', it is a necessary condition that the information contained in it did in fact make its way into a Cabinet meeting. The plaintiff argued that it is necessary; the Commonwealth denied that proposition.

46 The rationale for the protection of documents as Cabinet documents, as explained by the High Court in Northern Land Council (above at paragraph 7), shows that the prospect of indirect revelation of what was actually discussed at Cabinet is not the only purpose for preserving the confidentiality of 'Cabinet documents'. But, clearly, that is one of the purposes. More fundamentally, the rationale for the protection is to avoid the inhibition of 'free and vigorous exchange of views', even upon 'controversial paths' which do not, in the end, lead to a decision that all members of Cabinet support. It seems to me that, consistently with that rationale, protection may be given to a preparatory submission intended as an option to be put before Cabinet but which, in the end, does not ultimately get to Cabinet. Therefore, to confine the protection only to documents that 'would' be put to Cabinet (that is, were in fact put to Cabinet) proceeds from an unduly restrictive view of the rationale for the protection.

47 The application of the rationale is illustrated in the decision of Byrne J in State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd (No 2).[26] Relevantly, his Honour was considering a class of documents which were brought into existence for the purpose of preparing submissions to Cabinet. After finding no difficulty affording the immunity to drafts of submissions, his Honour turned to the remainder of the documents in that category. His Honour considered that the basis for the immunity of documents in that category was the concern that they may indirectly disclose Cabinet deliberations.[27] His Honour thought it appropriate to examine the documents in order to determine the extent to which they were 'so close to the processes of Cabinet as to involve an indirect disclosure of these'.[28] Having done so his Honour continued:

I have inspected these documents for the purpose of determining whether they are so close to Cabinet that they might disclose the subject matter of submissions presented for its consideration. I have concluded that all of them, except document 50 from the December list and document 58 from the February list, fall within this description. I am, of course, unable to say whether they would disclose these matters because I do not know what was the content of the material actually before Cabinet or that discussed at Cabinet. In any event, I am not concerned with content, but rather with the relationship between the documents in question as members of a class and the processes of Cabinet which are entitled to confidentiality.[29]

48 When his Honour contrasted 'might disclose' and 'would disclose' in that passage it seems he was acknowledging that regardless of whether a document actually went to Cabinet - and so revealed an actual Cabinet deliberation - the important thing was that it 'might' have gone to Cabinet. In other words, it was the document's capacity, if disclosed, to prejudice the policy development process that culminated in Cabinet that was the fundamental basis for its protection. That is explained by his Honour saying that he was 'not concerned with content, but rather with the relationship between the documents in question as members of a class and the processes of Cabinet which are entitled to confidentiality'.

49 On the evidence so far produced, it is not certain that there are any documents for which class-immunity is claimed in respect of content that was never actually put before or discussed by Cabinet. But the possibility at least exists as shown by the examples described above. It also exists to the extent that a criterion for selection in the class is the document's capacity to enable reliable inferences to be drawn about the subject matter of a Cabinet meeting or a position taken by a Minister in Cabinet. Such inferences can logically be drawn from information that was not put to Cabinet. Further, it may be equally damaging to the national interest, and inhibitory of the free and open exchange of ideas in the deliberative process both before and during Cabinet, if disclosure is made of what was not put to Cabinet.

50 For example, if it was known publicly that Cabinet adopted policy X, the revelation that policy Y was not put to Cabinet as an option may allow a reasonable inference that policy Y was never the subject of Cabinet deliberation. It might also enable a reasonable inference that a particular Minister responsible for recommending options to Cabinet did not favour the rejected option. In discussion, the plaintiff appeared to accept that this was so. In that way, the revelation that an option was not discussed by Cabinet could, logically, have much the same inhibitory effect on future policy development communications as would the revelation of what was actually discussed.

51 These considerations support the view that, at the stage of deciding whether a document warrants inclusion in the class that attracts the Cabinet document immunity, regardless of its content, attention is directed to the document's relationship to the processes of Cabinet. Documents actually submitted to Cabinet, including drafts, antecedent versions and other documents whose content is incorporated in those submitted documents, are clearly within the class. But that is not to say that documents that contain content that was prepared for Cabinet, but which ultimately did not go to Cabinet, cannot be encompassed within the class. If the preparation of such a document was so closely connected to the process intended to culminate in a Cabinet discussion that its disclosure would tend to inhibit policy development, then the policy justification for the protection of Cabinet documents applies to it as well.

52 Therefore, the determinant of a document's qualification for immunity as a member of the Cabinet document class is not whether its content, whether as a submission or some form of precursor thereto, did in fact become the subject matter of an actual Cabinet deliberation.

53 It follows that on the question of principle on which the parties disagreed I prefer and adopt the Commonwealth's analysis.

54 I come to the second proposed topic of cross examination for the purpose of the first stage of the court's task. It concerned the evidence given by Dr Parkinson, in respect of all four categories of documents, that disclosure of documents within each category would allow reliable inferences to be drawn about, and in many cases would directly reveal, the position taken by particular Ministers in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions.

55 The plaintiff argued that the combination of three factors created obscurity rather than clarity about this evidence:

(a) First, the same formulation of harm was given for four quite different categories of documents;

(b) Secondly, there were three separate topics that could be revealed or about which inferences might be drawn, each with potentially differing weight or significance; and

(c) Thirdly, Mr Fox did not say, in terms, that disclosure of any particular document would give rise to the risk of an inference, let alone the kind of inference, being drawn.

56 Concerning the first point, the plaintiff said it was 'curious' that the same rationale is given for the protection of each category of document when, by their nature, the categories each have quite varying degrees of proximity and remoteness to actual Cabinet meetings. For example, category 4 documents are documents prepared by the department outside of Cabinet to 'inform and support Cabinet decision making'. Category 1 documents, on the other hand, are those actually submitted to and considered by Cabinet. As a general proposition, it would appear likely that the degree to which documents in the different categories might permit reliable inferences to be drawn about the subjects specified by Dr Parkinson could vary considerably.

57 Regarding the second point, the plaintiff argued that there may be greater significance for either the inclusion of a document in the Cabinet document class or for the balancing of public interests at the second stage, if a reliable inference could be drawn from the document about the subject matter of a Cabinet discussion, on the one hand, rather than merely the timing of a Cabinet discussion on the other. At least, there are apparent qualitative differences between the topics.

58 As to the third point, the plaintiff correctly pointed out that in his particular descriptions of each document Mr Fox does not condescend to say whether that document would permit a reliable inference to be drawn about, or would actually reveal (whether directly or indirectly), either a position taken by a Minister at Cabinet, or the subject matter of a Cabinet discussion, or the likely timing of a Cabinet discussion.

59 In my view there is some force in this criticism. In so far as it will be necessary to evaluate the potential harm the disclosure of a document may cause to the proper functioning of government, whether in deciding if the document belongs to the class of Cabinet documents or, having so decided, in balancing the two public interests, the Commonwealth should specify, in respect of each document, the particular revelation-risk it says that the disclosure of document carries.

Interference with the efficient operation of Cabinet

60 The third proposed topic for possible cross examination was directed to the second stage of the analysis the court must undertake: that is, the stage of weighing the two public interests to determine which should predominate. It was directed to the opinion of Dr Parkinson expressed in the first sentence of the extract in paragraph 12 above.

61 The plaintiff submitted that the premise that breaches of the confidentiality of the Cabinet process would significantly interfere with the efficient operation of Cabinet, and therefore decision making and policy development in Australia, is a question of fact. Being a question of fact, it needs to be established by evidence rather than merely being assumed at the level of principle. And, being a question of fact, and especially one of fundamental importance to the Commonwealth's claim for protection, the plaintiff argued it can and ought to be tested in cross-examination.

62 The plaintiff did not suggest that he should be permitted to test the proposition document by document, but rather at a higher level of systemic effect. He contended that, since it has never been the case that the immunity is absolute, it follows that the possibility of the disclosure of Cabinet documents has always existed. He wished to cross examine Dr Parkinson about the thesis that the risk of disclosure does or has had the effect of interfering with the decision making and policy development process.

63 For the Commonwealth it was argued that the opinion expressed by Dr Parkinson reflects part of the reasoning process that underlies the law's protection given to Cabinet documents, rather than a contestable fact.

64 Returning again to the rationale for protection of Cabinet documents explained by the High Court in Northern Land Council, it seems to me that the High Court there said that the very proposition which the plaintiff wants to explore as a matter of fact was said to have 'never been doubted'.[30] That is, for some time that proposition has been the assumed premise for conferring the statutory immunity upon documents brought into existence within the decision making and policy development processes of Cabinet. It would follow that to allow cross examination on that proposition would be to acknowledge doubt about that which the High Court has said has never been doubted.

65 I would not allow cross examination on that topic.

66 It is sufficient for me to say at this point that, in relation to those few subjects upon which I consider the evidence to be somewhat deficient, I am not persuaded that I should permit the exceptional step of cross-examination. In my view those areas of deficiency can and should be addressed by inviting, and on some specific subject directing, the Commonwealth to adduce further evidence.

67 For the reasons given in paragraphs 36-39, 43 and 59 above, I will direct the Commonwealth to file and serve additional evidence to:

(a) Provide a general descriptive overview of the 'Cabinet process' referred to in paragraph 16 the affidavit of Dr Martin Parkinson affirmed 14 June 2016;

(b) Identify, in respect of each category 3 or 4 document or a 'precursor' of a category 2 document, the stage of the Cabinet process at which the document was produced or, by reference to some other measure, its proximity to a Cabinet deliberation; and

(c) Specify, if and in so far as the disclosure of any particular document would allow reliable inferences to be drawn about, or directly reveal, the position taken by particular Ministers in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions,

(i) whether it is alleged that the document would directly reveal a particular topic or, instead, would allow reliable inferences to be drawn about the topic; and

(ii) which of the three topics it is claimed could be inferred or would be revealed.

68 In addition, I will give the Commonwealth leave to supplement its evidence generally in the light of the reasons I have expressed and observations I have made in this ruling.

69 I will hear the parties about the precise form of the orders, in particular the timing for the filing and service of the further evidence by the Commonwealth and for responsive material, if any, from the plaintiff.

Part I: list of documents in dispute

Submission to Minister for Immigration and Border Protection - Managing Health Issues at Offshore Processing Centres

Offshore Processing Programme - Programme Board Minutes Meeting 4

20131121 - Managing Health Issues at OPCs DEP SEC SIGNED

20131121 - Managing Health Issues at OPCs DEP SEC SIGNED

Offshore Infrastructure Branch - Post Settlement/Assessment NPP

Talking Point Manus Island Infrastructure Cabinet Submission

Draft NPP - Regional Processing and Settlement Nauru PNG and Cambodia

DRAFT NPP - Regional Processing and Settlement Nauru PNG and Cambodia

Secretaries Committee on National Security Talking Points

Draft NPP - Offshore Refugee Status Determination and resettlement arrangements in Papua New Guinea, Nauru and Cambodia

IMA Offshore resettlement - costing questions from Finance

IMA Offshore resettlement - costing questions response to Finance

Cabinet submission comments on management of IMA caseload and mitigation of legal risks

Cabinet submission comments on management of IMA caseload and mitigation of legal risks

NPP on Regional Processing and Settlement PNG, Nauru and Cambodia

Part II: Category descriptions (Mr Fox) and nature of prejudice if disclosed (Dr Parkinson)

Description: Documents submitted to and considered by the Cabinet (including documents which are both identical in all relevant aspects to those considered by Cabinet and precursors of documents submitted to Cabinet).

Prejudice to national interest: This category of documents consists of documents which were considered by or submitted to the Cabinet. It includes duplicates and draft versions of documents considered by Cabinet. I consider that the release of documents falling within this category would breach the necessary confidentiality of the Cabinet process by allowing reliable inferences to be drawn about, and in many cases directly revealing, the position taken by particular Ministers in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions.

Description: Documents which reveal the contents of a document to be submitted to and considered by the Cabinet and its committees, including attachments describing new policy proposals (NPPs) and their precursors.

Prejudice to national interest: This category of documents consists of documents which have not been considered by the Cabinet, but which reveal the contents of other documents which have been or will be prepared for consideration by Cabinet. This includes Minutes to the Secretary of the Department of Immigration and Border Protection and submissions to the Minister for Immigration and Border Protection which reveal the contents of Cabinet submissions or other documents intended to be circulated in the Cabinet room, or their precursors. Where only a part of a document does this, the Commonwealth has only made a claim for PII (Cabinet) over that part of the document. In my opinion the release of documents falling within this category would breach the necessary confidentiality of the Cabinet process by allowing reliable inferences to be drawn about, and in many cases directly revealing, the position taken by particular Ministers in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions.

Description: Document prepared by a department to brief their Minister for Cabinet.

Prejudice to national interest: This category includes documents developed by a department to inform a Minister's participation during Cabinet meetings. It may include departmental advice on particular proposals. In my opinion the release of documents falling within this category would breach the necessary confidentiality of the Cabinet process by allowing reliable inferences to be drawn about, and in many cases directly revealing, the position taken by particular Ministers in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions. For example, it could reliably be inferred that a recommendation a department made to its Minister accorded with the position taken by that Minister in Cabinet.

Description: Documents prepared by the Department of Immigration and Border Protection in order to inform and support Cabinet decision-making.

Prejudice to national interest: The process directed to obtaining a Cabinet decision upon a matter of policy necessarily involves documents being created within government departments and instrumentalities for the purpose of informing and supporting Cabinet decision-making. Documents in this category may include preparatory material, some of which was subsequently included in a Cabinet submission. I consider that the release of documents falling within this category would interfere with the efficient operation of Cabinet by breaching the necessary confidentiality of the Cabinet process outlined above by allowing reliable inferences to be drawn about, and in many cases directly revealing, the position taken by particular Minister in Cabinet, the subject matter of discussions by Cabinet or the likely timing of such Cabinet discussions. My views expressed in paragraphs 16 and 17 above are particularly applicable to documents within this category.

Part III: Description of individual documents (Mr Fox) and plaintiff's response

Mr Fox set out in paragraph 15 of his affidavit a more detailed description of each of the 25 documents with an explanation of the harm that he considered was likely to occur if the information subject to a PII claim was disclosed. A number of them can be grouped together as they constitute a set of drafts or substantially the same iterations of the same document. By dealing with grouped documents as one, it will appear that there are only 14 'prime' documents.

Set out below is a description of the documents that can be grouped together followed by those that are the subject of independent claims only. Set under each claim is the plaintiff's response. All category 1 claims are in respect of the full document. For documents in other categories, some are full document claims and others only part document claims. Each prime document is first referred to by its the full identification number; each document (including other documents in a group) is identified by the last four digits from its ID number.

Document A.100.3629.0825 (and related documents)

Document 0825 is described as 'Offshore Processing NPPs'. Each of documents 0353, 7005, 7635 and 5169 is said to be a draft or further draft of the NPP 'similar in nature to the NPPs described' in relation to 0825. The same evidence is relied upon in respect of each of these further documents as is relied upon for 0825. PII is claimed in respect of the full document.

This document includes a number of NPPs prepared for the consideration of Cabinet. As outlined with respect to A.100.2009.4723, all submissions to Cabinet or the Expenditure Review Committee are required to include a range of information to support decision making by the Cabinet. This information is incorporated into an NPP that includes information on the policy proposal, costs associated with the proposal, and an outline of the implementation and other risks associated with the proposal. The NPP is the core document on which decisions are taken by the Cabinet. It is therefore a Category 1 document.

Mr Fox had earlier described the importance of an NPP in the budget process, in relation to another document (4723), in these terms:

Each year, the Cabinet establishes standing rules known as the Budget Process Operational Rules which set out the major administrative and operational arrangements that underlie the management of the Australian Government Budget process. These Rules require an NPP to support consideration of policies by the Expenditure Review Committee, a committee of the Cabinet charged with oversight of all Government revenue and expenditure, and the full Cabinet.

The plaintiff's written submission in relation to this document in respect of both sensitivity and relevance is as follows:

Sensitivity: This is a category 1 document. At page 6, Mr Fox's affidavit identifies that this document includes a number of NPPs prepared for the consideration of Cabinet, that a range of information to support decision-making by Cabinet is incorporated into NPPs, and that the NPP is the core document on which decisions are taken by the Cabinet. Mr Fox does not confirm that the document was in fact submitted to or considered by Cabinet, or that it is a duplicate of or precursor to a document submitted to or considered by Cabinet. No evidence is provided as to the document's subject matter aside from the fact that its title is given as "Offshore Processing NPPs". Relevance: The document would appear likely to at least be relevant to the questions of the Commonwealth's control or management of the Centre.

Document A.100.3628.1650 (and related documents)

Document 1650 is titled 'Offshore Processing Submission v2'. Documents 8053 and 6326 are each said to be drafts of the same document. The same evidence is relied upon in respect of each of these further documents as is relied upon for 1650. PII is claimed in respect of the full document.

This document is a draft of a Cabinet submission. It is a well-developed document that is close to the final version considered by the Cabinet. I consider that it falls within Category 1 and disclosure of it would allow reliable inferences to be drawn in relation to the deliberations of the Cabinet.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: These are category 1 documents. Mr Fox's affidavit at page 4 identifies that these documents are well-developed drafts of a Cabinet submission that are "close to the final version considered by the Cabinet". No further evidence is provided. Relevance: The document appears likely to at least be relevant to the questions of the Commonwealth's control or management of the Centre, and its knowledge or awareness of certain risks and issues concerning the Centre.

Documents in this category include those in respect of which it is claimed that the document or information also attracts another category (ie 3 or 4).

Document A.100.3010.4770 (and related documents)

Document number 4770 is titled 'Submission to Minister for Immigration and Border Protection - Managing Health Issues at Offshore Processing Centres'. Two other documents (8030 and 8041) said to be 'the same as' document 4770. PII is claimed over parts of the document.

This document is a submission to the Minister for Immigration and Border Protection describing a range of policy options for the management of health issues at the offshore processing centres. In my view it is a Category 2 document. A claim of partial PII is made over A.100.310.4774 (paragraph 20) and A.100.3010.4775 (Financial/Systems/Legislation implications). These two parts of the document contain material that provides policy options for the Minister's consideration. Once the Minister's views were obtained, a submission to Cabinet was drafted incorporating those views. This deliberative material is subject to a PII claim as it would disclose policy options either considered by the Cabinet or prepared for possible consideration by the Cabinet. The PII Cabinet claim relating to paragraph 6 of page I (A.100.3 010.4710) of this document is not pressed.

In his written submission the plaintiff says the following about the sensitivity and relevance of this document:

Sensitivity: These are category 2 documents. Mr Fox's affidavit at page 4 indicates that the redacted sections of this document "contain material that provides policy options for the Minister's consideration" and that after obtaining the Minister's views "a submission to Cabinet was drafted incorporating those views". The Fox Affidavit also states that the material is subject to a PII claim because it would disclose policy options "either considered by the Cabinet or prepared for possible consideration by the Cabinet" (emphasis added). The redacted information evidently appears quite removed from information actually submitted to or considered by Cabinet. No evidence is provided as to any link or relationship between the "policy options" referred to in the documents and the "views" of the Minister that were ultimately included in a Cabinet submission. Relevance: It is apparent on the face of the documents that the submission concerns the standard of medical care available at (relevantly) the Manus Centre, medical issues present or prevalent in the Detainee cohort there, and "measures to mitigate risks" and "additional healthcare needs", including specifically in relation to pregnant women and young children, those with mental healthcare needs, and secondary care provision at the Pacific International Private Hospital in Port Moresby. These issues directly relate to matters concerning healthcare and detainee vulnerabilities raised in the pleadings, as well as issues relating to the Commonwealth's control or management of these matters, and appear to be relevant to the Commonwealth's knowledge of risks, and steps taken to ameliorate them, in this regard.

Document A.100.3677.6263 (and related documents)

Document 6263 is titled 'IMA Offshore resettlement - costing questions from Finance'. Document 9736 is titled the response to document 6263 and the two of them are said to form part of an exchange between two departments. PII is claimed in respect of the full documents.

These documents form part of the exchange between the Departments of Immigration and Border Protection, and Finance, prepared with a view to agreeing the costs of the NPPs to be submitted to the Expenditure Review Committee as part of the Cabinet's consideration of the submission. As such, they are Category 2 documents.

The plaintiff makes the following written submission about the sensitivity and relevance of these documents:

Sensitivity: These are category 2 documents. Mr Fox's affidavit at page 6 identifies that these documents "form part of the exchange between the Departments of Immigration and Border Protection, and Finance, prepared with a view to agreeing the costs of the NPPs to be submitted to the Expenditure Review Committee as part of the Cabinet's consideration of the submission". No evidence is provided as to whether any associated NPP was actually submitted to or considered by the Committee, nor the level of detail or specificity at which details of any policy proposals are described within the document. Relevance: The plaintiff repeats the reasons discussed for sub-paragraph (d) above in relation to the likely relevance of this document [see the plaintiff's written submission in relation to 0669 below].

Document A.100.3679.6493 (and related documents)

Document 6493 is titled 'Cabinet submission comments on management of IMA caseload and mitigation of legal risks'. Document 6595 has the same title. PII is claimed in respect of the full document.

Mr Fox describes documents 6493 and 6595 as follows:

These documents include a variety of internal emails from staff in the Department of Immigration and Border Protection providing drafting comments on a draft Cabinet submission. I therefore consider they are Category 2 documents.

The plaintiff makes the following written submissions about the sensitivity and relevance of these documents:

Sensitivity: These are category 2 documents. At page 7, Mr Fox's affidavit identifies these documents as "a variety of internal emails from staff in the [DIBP] providing drafting comments on a draft Cabinet submission". No evidence is provided as to the status of the draft submission, whether the emails identify the contents (or other relevant features) of the submission, of whether the final version of the submission was ever submitted to or considered by the Cabinet. Despite the reference to 'mitigation of legal risks' in the title, the document is not subject to an LPP claim by the Commonwealth. Relevance: Based on the title and the source of the document, it appears that it also may at least be relevant to the questions of the Commonwealth's control or management of the Centre, and its knowledge or awareness of certain risks and issues concerning the Centre.

Document A.100.3630.8300 (and related documents)

Document 8300 is titled 'Draft Implementation Plan'. Document 9261 is titled 'Final Implementation Plan' and is said to be the final version of document 8300. PII is claimed in respect of the full documents. They are said to belong to category 4.

This document is the draft of an implementation plan prepared for Cabinet consideration. An implementation plan is required for those policy proposals assessed as medium or high risk and must be summarised in Cabinet submissions, and available for Cabinet Ministers to consider. It is therefore a Category 4 document.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: These are category 4 documents. Mr Fox's affidavit identifies at page 6 that these documents are a draft and final version of an implementation plan prepared for Cabinet consideration, and that an "implementation plan is required for those policy proposals assessed as medium or high risk and must be summarised in Cabinet submissions, and available for Cabinet Ministers to consider". There is no evidence to confirm whether the final version of this document was in fact submitted to or considered by the Cabinet, and no further evidence available as to its subject matter. Relevance: It appears that it may at least be relevant to the questions of the Commonwealth's control or management of the Centre, and its knowledge or awareness of certain risks and issues concerning the Centre.

Document 0198 is titled 'Talking Point Manus Island Infrastructure Cabinet Submission. In addition to being claimed as belonging to category 2, it is also said to belong to categories 3 and 4. PII is claimed in respect of the full document.

This document was prepared by the Department of Immigration and Border Protection to support the Minister in presenting the submission to Cabinet. It clearly summarises the contents of the submission and outlines the arguments in support of the recommendations contained in the submission itself. This document, if disclosed, would clearly allow a conclusion to be made about the issues discussed in Cabinet. It is therefore a Category 2 document as it would reveal the content of a document that went to Cabinet. It also falls into Categories 3 and 4 as a document prepared by the Department of Immigration and Border Protection to support their Minister's participation in Cabinet, and by extension, Cabinet decision making.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 2, 3 and 4 document. Mr Fox's affidavit identifies at page 5 that this document was prepared by DIBP to support the Minister in presenting the identified 'Infrastructure' submission to Cabinet. No evidence is provided as to whether this submission was actually presented to Cabinet, or whether this document was actually provided to the Minister for use in preparing for a Cabinet discussion. The nexus has not been established. Relevance: As the relevant submission relates to infrastructure at the Centre it will likely be directly relevant to the allegations made by the plaintiff concerning (among other things) security, shelter and accommodation, and is likely relevant to the question of the Commonwealth's control and management of the Centre.

Document 3755 is titled 'Cabinet Brief Manus Island Infrastructure'. In addition to being a category 2 document it is also said to belong to categories 3 and 4. PII is claimed in respect of the full document.

This is a document prepared by the Department of Immigration and Border Protection to advise their Minister of the issues arising from the consultation process on the draft Cabinet submission ahead of consideration at the Expenditure Review Committee. It describes the likely position of other Ministers based on advice from their departments. Cabinet Ministers typically receive briefs from their departments along these lines before a submission is considered by the Cabinet to help the Ministers prepare for the meeting. The assessments contained in the document would reveal the likely positions taken in the meeting by Ministers and allow reliable inferences to be drawn on the deliberations of the Cabinet. I consider it falls within Categories 2, 3 and 4.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 2, 3 and 4 document. Mr Fox's affidavit at page 5 identifies that this document was prepared by DIBP to advise the Minister and describes the likely positions of other Ministers based on advice from their departments. It therefore would appear to detail hypothesised or anticipated Cabinet deliberations or positions, rather than actual Cabinet deliberations. Relevance: In relation to the likely relevance of the subject-matter the Plaintiff repeats the reasoning discussed in paragraph (f) above [see the plaintiff's written submission in relation to 0198 above].

Document 8996 is titled 'Risk Assessment Potential Tool'. In addition to belonging to category 2 it is also said to belong to category 4. PII is claimed in respect of the full document.

This is a document prepared by the Department of Immigration and Border Protection as part of the process of preparing a Cabinet submission. The Cabinet Handbook requires all proposals being considered by Cabinet to have risks associated with implementation to be assessed, using the Risk Assessment Potential Tool, to determine whether a comprehensive Implementation Plan is required. This document is the output of the assessment made on the policy proposal and was prepared as part of the Cabinet decision making process. It is therefore a Categories 2 and 4 document that reveals the content of proposals canvassed for consideration at Cabinet and was prepared to assist in Cabinet decision making.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 2 and 4 document. Mr Fox's affidavit at page 5 identifies that this document was prepared by DIBP as part of the process of preparing a Cabinet submission, and is the output of the use of the Risk Assessment Potential Tool made on a policy proposal and prepared as part of the Cabinet decision making process. There is no evidence as to whether it was ever submitted to the Minister or the Cabinet, or what subject matter it relates to. Relevance: It would also appear that this document may be relevant to the questions of the Commonwealth's control or management of the Centre, and its knowledge or awareness of certain risks and issues concerning the Centre.

Document 2046 is titled 'Offshore Processing Programme - Programme Board Minutes Meeting 4'. PII is claimed in respect of part only of the document.

The information contained in pages A. 100.3015.2067-2071 records the minutes of a meeting of the Department of Immigration and Border Protection's Operation Sovereign Borders Programme Board. These pages describe the contents of an NPP about policy and funding options for the Department of Immigration and Border Protection's Operation Sovereign Borders Programme Board for submission to the Expenditure Review Committee. I therefore consider it falls within Category 2.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 2 document. Mr Fox's affidavit at page 4 identifies that the redacted sections of this document "describe the contents of an NPP about policy and funding options for the Department of Immigration and Border Protections' Operation Sovereign Borders Programme Board for submission to the Expenditure Review Committee". No evidence is provided as to whether the NPP was actually submitted to the Committee, nor the level of detail or specificity at which the "policy and funding options" are described. We note that, document A.100.3015.2033, over which the Commonwealth has withdrawn its PII Cabinet related claim, are the minutes of Meeting 4, which at Agenda Item 7 discloses the details of the Board's discussion regarding the 'post RSD assessment NPP' and its funding requirements. Given the intentional disclosure by the Commonwealth regarding details of the NPP discussed at Meeting 4, there is no evidence as to why the sensitivity remains over this Claim document. Relevance: On its face, the document appears to record the contents of a meeting attended by a number of senior Commonwealth officials, and discusses issues concerning risks identified regarding the offshore processing program and the Manus Centre, the status of settlement and RSD processes, amenities at the Centre, infrastructure works at Manus, medical transfers (and making efforts to "minimise unnecessary medical evacuations"), and other 'Manus operations'. Given the source of the document and the Programme Board's broad oversight role, this material appears likely to be directly relevant to the question of the Commonwealth's control of matters at the Centre, as well as issues concerning RSDs, medical transfers and infrastructure raised in the pleading.

Document 4723 is titled 'Manus Project Board Meeting 16 - Minutes'. PII is claimed in respect of part of the document.

This document is the minutes of a Project Board created within the Department of Immigration and. Border Protection. The Board was charged with bringing together all members of the department with responsibility for oversight of the arrangements at Manus island in Papua New Guinea. The minutes include references to material being prepared for inclusion in an NPP to be submitted to the Cabinet for consideration. It is therefore a Category 2 document. Each year, the Cabinet establishes standing rules known as the Budget Process Operational Rules which set out the major administrative and operational arrangements that underlie the management of the Australian Government Budget process. These Rules require an NPP to support consideration of policies by the Expenditure Review Committee, a committee of the Cabinet charged with oversight of all Government revenue and expenditure, and the full Cabinet. Disclosure of the contents of the redacted material would provide information on policy options canvassed for consideration by the Cabinet and should not be disclosed.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 2 document. Mr Fox's affidavit at page 3 indicates that his document records the minutes of a high-level committee with oversight of the Manus Island Regional Processing Centre. It identifies that this document includes references to material being prepared for inclusion in an NPP to be submitted to the Cabinet for consideration, and states that "disclosure of the contents of the redacted material would provide information on policy options canvassed for consideration by the Cabinet and should not be disclosed". No evidence is provided as to whether the material referred to in the minutes were ever actually included in an NPP, the subject-matter of the material or the NPP, the status of the "policy options canvassed", or whether the NPP was ever actually submitted to or considered by Cabinet. Relevance: On its face, the document indicates that the committee contained a large number of senior officials within the Commonwealth, and that it records the subject of their discussion in mid-September 2014 (that is, around 24 months into the 27-month claim period). The redactions made to the document indicate that the information sought to be protected concerns:

1. a 'risk and issue register' item on page 1 (which precedes an 'extreme issue' recorded relating to the death of a detainee);
2. a section concerning 'amenities at OPCs' (OPC standing for 'offshore processing centre' and being equivalent in meaning to 'RPC' or references to the Centre in these submissions) on page 2;

iii. redactions over 'other business' preceding an item commencing 'urgently working on huge dental issues in OPCs' on page 3; and

1. a redaction on page 7 in the table row titled 'lead coordination of care model', which precedes text discussing settlement provision.

Other unredacted topics included in the minutes (on pages 2-3) include 'key issues/highlights' (containing text discussing Australia's assessment of PNG's need for 'assistance with logistical administration and mentoring'), 'Capacity', 'Refugee Status Determination (RSD) - Hand downs and Pipeline', 'Settlement' and 'Settlement Infrastructure', 'returns and Removals', 'Legal Matters: Australia/Regional Processing Country', 'Service Delivery and Performance', and 'Security and Safety'. In addition to issues relating to Commonwealth involvement/control, the pleadings directly address issues relating to infrastructure and amenities at the Centre, medical/dental/healthcare issues, security issues, and the likely duration of detainees' presence at the centre (relating to the process of completing RSDs). On this basis, the document appears highly likely to be of direct (and, given the source, significant) relevance to the plaintiff's claim.

Document 0477 is titled 'Offshore Infrastructure Branch - Post Settlement/Assessment NPP'. PII is claimed in respect of the full document.

This document is part of the costing process required to support consideration of an NPP by the Cabinet. It is designed to assess whether various cost items are operational expenses or capital expenses for budget purposes. I therefore consider it falls within Category 4. It should not be disclosed as to do so would disclose a number of options that may have been considered by the Cabinet.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 4 document. The evidence in Mr Fox's affidavit at page 4 is limited to an indication that this document is "part of the costing process required to support consideration of an NPP by the Cabinet" and that it "is designed to assess whether various cost items are operational expenses or capital expenses for budget purposes". Mr Fox states that the document should not be disclosed because to do so would disclose a number of options that "may" have been considered by the Cabinet. The evidence indicates that the document and the information contained therein is removed from any actual Cabinet consideration or deliberations. Relevance: The plaintiff repeats the reasons discussed for section (d) above in relation to the likely relevance of this document [see the plaintiff's written submission in relation to 0669 below].

Document 0669 is titled 'Manus Capital Profile'. PII is claimed in respect of the full document.

This document is part of the exchange of information between the Departments of Immigration and Border Protection and Finance. The Budget Process Operational Rules established by the Cabinet each year require all departments to settle the costs of their proposals with the Department of Finance before they are considered by the Cabinet or its committees. This document is part of the process of agreeing those costs. I therefore consider it falls within Category 4.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 4 document. The evidence in Mr Fox's affidavit at page 4 is limited to an indication that this document is "part of the exchange of information between the Departments of Border Protection and Finance" and (implicitly) that it is "part of the process" of agreeing the costs of proposals before they are considered by the Cabinet or committees. No evidence is provided as to what information, or what kind of information, is contained within in the document, at what level of detail or specificity any proposals are identified or expressed, or whether any proposals or costing referred to in the document were ever actually submitted to or considered by the Cabinet or formed the basis of a document that went to Cabinet. Relevance: The Commonwealth states that it agreed to bear all costs in relation to its Memorandum of Understanding with PNG concerning the offshore processing arrangements. This document therefore appears likely to contain information relevant to the Commonwealth's intentions or plans to implement the Memorandum of Understanding and develop or improve the Centre or related facilities. It may be relevant to the question of the Commonwealth's management or control of the Centre, or its knowledge of the Centre's conditions (as pleaded) and/or plans to alter those conditions.

Document 4727 is titled 'Secretaries Committee on National Security Talking Points'. PII is claimed in respect of the full document.

This document was prepared by the Department of Immigration and Border Protection to support the Secretary of that Department in discussion at a meeting of the Secretaries Committee on National Security. That Committee meets prior to meetings of the National Security Committee of Cabinet and often discusses matters that will be considered by the National Security Committee. In this case, the talking points relate to consideration of a draft Cabinet Submission. It is therefore a document that falls within Category 4.

The plaintiff makes the following written submission about the sensitivity and relevance of this document:

Sensitivity: This is a category 4 document. Mr Fox's affidavit at page 6 identifies that this is a document prepared by DIBP for the Secretary of DIBP for use in a Secretaries Committee on National Security that met prior to meetings of the National Security Committee of Cabinet, and that the document relates to consideration of a draft Cabinet submission. No evidence is provided as to whether the document discloses the contents (or other relevant facets) of the draft Cabinet submission, or whether the draft Cabinet submission was ever actually submitted to or considered by the Cabinet. Relevance: No evidence is provided as to what the subject-matter of the draft Cabinet submission is, however the fact that it has been discovered by the Commonwealth presumably means that the document responds to the agreed discovery categories and/or search terms in use for this proceeding.

[1] Ryan v State of Victoria [2015] VSCA 353 [100] (Tate JA, Santamaria and Ferguson JJA agreeing) ('Ryan').

[2] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) ('Northern Land Council'); Ryan [2015] VSCA 353 [56].

[3] Lanyon Pty Ltd v The Commonwealth of Australia (1974) 129 CLR 650, 653 (Menzies J) ('Lanyon'); Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 39 (Gibbs ACJ) ('Sankey'); Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 615-6; Spencer v Commonwealth [2012] FCAFC 169; (2012) 206 FCR 309, 320 [32] (Keane CJ, Dowsett and Jaggot JJ) ('Spencer').

[4] Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 615-6 (citations omitted).

[6] Sankey [1978] HCA 43; (1978) 142 CLR 1, 96 (Mason J).

[7] Spencer [2012] FCAFC 169; (2012) 206 FCR 309, 320 [32].

[8] Lanyon (1974) 129 CLR 650, 653; Sankey [1978] HCA 43; (1978) 142 CLR 1, 39 (Gibbs ACJ); Spencer [2012] FCAFC 169; (2012) 206 FCR 309, 320 [32].

[9] Spencer [2012] FCAFC 169; (2012) 206 FCR 309, 322-3 [42].

[10] Lanyon (1974) 129 CLR 650, 653; Spencer [2012] FCAFC 169; (2012) 206 FCR 309, 320 [32].

[11] Sankey [1978] HCA 43; (1978) 142 CLR 1, 39 (Gibbs ACJ); Spencer [2012] FCAFC 169; (2012) 206 FCR 309, 320 [32].

[12] Sankey [1978] HCA 43; (1978) 142 CLR 1, 39 (Gibbs ACJ).

[13] Affidavit of Dr M Parkinson affirmed 14 June 2016, [29].

[15] Ibid [21], [23], [25], [28], [30].

[16] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 40.04.

[17] Young v Quin (1985) 4 FCR 483, 484-6 (Bowen CJ), 488-9 (Sheppard J); Woodroffe v National Crime Authority (1999) 168 ALR 585, 589 (Drummond, Sundberg and Marshall JJ); Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 681 (Hunt CJ at CL, Smart and Studdert JJ agreeing); Holloway v Commonwealth of Australia [2016] VSC 317, [132]-[140] (John Dixon J).

[18] Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 681 (and cases cited therein).

[19] Young v Quin (1985) 4 FCR 483, 488-9.

[20] Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427, 431 (Drummond J).

[21] Holloway v Commonwealth of Australia [2016] VSC 317 [139].

[23] Woodroffe v National Crime Authority (1999) 168 ALR 585, 589.

[24] Sankey [1978] HCA 43; (1978) 142 CLR 1, 38-9 (Gibbs ACJ): strictly speaking, there could be said to be three steps in the process but, for the purpose of argument, the parties rolled up the consideration of the forensic value of the information and the balancing of the two public interests into the 'second stage'.

[25] Affidavit of Dr M Parkinson affirmed 14 June 2016, [16].

[26] [2001] VSC 249.

[30] Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 615.