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. Objections have been taken by the Commonwealth under several of the grounds provided for in s 130 for characterising a document as relating to a matter of state. The documents the subject of this particular ruling are those in respect of which the Commonwealth asserts that their production on discovery would 'prejudice the ... international relations of Australia': s 130(4)(a).[1] For convenience, and to distinguish these documents from others for which immunity is claimed on another ground, these documents have been described by the parties as the 'foreign relations documents' and the PII claims in respect of them as the 'foreign relations PII claims'.

4 As explained further below, this ruling concerns only a small subset of a much larger population of documents over which the Commonwealth makes foreign relations PII claims. In fact, due to the positions taken by the parties after the exchange of evidence and submissions, the final ambit of dispute was quite narrow, that is:

(a) in respect of nine documents or parts thereof (the 'limited access' claims), is it necessary (or sufficient) for the protection of the national interest to restrict the plaintiff's access to the documents and to restrict the publication of any use made of them in evidence, without completely withholding them from him; and

(b) in respect of two whole documents and parts of two others (the full PII claims), is the risk to the national interest such that they should be withheld from the plaintiff altogether?

5 Section 130 of the Act provides as follows:

(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.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would -

(a) prejudice the security, defence or international relations of Australia; or

(b) damage relations between the Commonwealth and a State or between 2 or more States; or

(c) prejudice the prevention, investigation or prosecution of an offence; or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters -

(a) the importance of the information or the document in the proceeding;

(b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

(e) whether the substance of the information or document has already been published;

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused - whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.

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.[2] The overriding common law principle is that a court ought not order the production of information or a document, although relevant and otherwise admissible, if it would be injurious to the public interest.[3] Whether a claim of PII ought to be upheld therefore requires the court to consider two conflicting aspects of the public interest, namely:

(a) whether harm would be done by the disclosure of matters of state; and

(b) whether the proper administration or justice would be frustrated or impaired if the documents were withheld.[4]

7 If the information in question is not relevant to the proceeding, there is no public interest in the use of the information and the occasion for considering the balancing exercise would not arise.[5] An assessment of relevance requires an analysis of the issues raised on the pleadings[6] and, potentially, the inspection of the document itself, to determine whether it is 'sufficient ... to justify disclosure'.[7]

8 The final step - the balancing exercise - can only be undertaken when it appears that both aspects of the public interest require consideration; that is, when it appears, on the one hand, that damage would be done to the public interest by producing the documents and, on the other, that there are or are likely to be documents which contain material evidence. The Court can then consider the nature of the injury likely to be suffered by disclosure and the evidentiary value and importance of the documents in the particular litigation.[8] Section 130(5) sets out a non-exhaustive list of factors the Court is to take into account when undertaking the balancing exercise required by s 130(1).

9 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.[9] Claims made upon the class of a document are those that are asserted due to the document's membership in the class, regardless of its content. A class claim is not easily established: the predominant need for protection still requires consideration of its relevant circumstances, in particular the subject matter of the document and its currency.[10]

10 The Commonwealth maintains that at least two of the 11 documents that remain in dispute for this particular application, namely two diplomatic cables, attract PII because they fall into a particular class of document. Some parts of the Commonwealth's initial submissions suggested that it submitted that all 11 documents could be viewed that way, whereas elsewhere it appeared to imply that the remaining nine documents fell to be determined only upon an analysis of their contents.[11] In its reply submission, the Commonwealth clarified that its claims are predominantly advanced as contents claims. However, claims in respect of confidential diplomatic cables (PM17339H and PM17890H) and documents revealing or allowing inferences to be drawn about the contents of communications that PNG officials expected or could reasonably have expected to be kept confidential (A.100.3040.4508 and A.100.2009.1497) are advanced both on a class and a contents basis. Having considered those cases in which it has been thought appropriate to determine the immunity by way of class,[12] documents properly described as 'diplomatic cables' would prima facie attract the protection as members of the class. I will give further consideration to these matters when I come to analyse each document below.

11 The parties differed on one point of principle. The Commonwealth argued it was sufficient, in order to establish that harm to the national interest will arise from disclosure, for it to adduce evidence of a 'real risk' of harm. For his part, the plaintiff argued that the relevant harm was not established unless there was evidence that the harm 'would' eventuate as a matter of probability. In other words, a mere risk no matter how 'real' would not suffice to engage the s 130 calculus.

12 The plaintiff emphasised the word 'would' appearing in the text of s 130(4) and cited a statement by Perram J in Hua Wang Bank Berhad v Federal Commissioner of Taxation (No. 7)[13] in support of his argument. In that case, his Honour was keen to exclude mere speculative possibilities as a basis for establishing the harm, although he did distinguish the phrase 'would prejudice', appearing in the section, from the phrase 'might prejudice'. On the other hand, the Commonwealth drew attention to the decision of the Western Australian Court of Appeal in The Australian Statistician v Leighton Contractors Pty Ltd.[14] In holding that it was sufficient for the applicant for immunity to show there was a 'real risk' of harm, the Court said that the 'incurring of the identified risk is itself injurious to the public interest',[15] citing several passages from English and Australian authority which appeared to be consistent with that approach.

13 In my view, if there is any actual difference between the two approaches, I should follow that of the intermediate appellate court in Western Australia. In any event, and with respect, I consider it is the better view for several reasons. First, I am persuaded that the word 'prejudice', understood in its ordinary meaning in conjunction with the subject of national defence, security or international relations, encompasses the creation of a risk that falls short of having a 50 per cent chance of eventuating. Secondly, that conclusion is reinforced by the contrasting use of the word 'damage' in s 130(4)(b) which carries a more certain connotation. Thirdly, that construction of the phrase better accords with the common law[16] which s 130 is intended to substantially reflect.[17]

14 Accordingly, I accept the Commonwealth's argument that the creation of a significant risk or real risk of harming Australia's bilateral relationship with PNG 'would prejudice the international relations of Australia'.

15 This proceeding is a large and complex representative proceeding. It is a claim for compensation in respect of alleged breaches of a duty of care said to be owed by the Commonwealth (and three corporate entities) to the plaintiff concerning the provision at the Centre of food and water, shelter and accommodation, medical and health services, and internal and external security. The breaches are alleged to have occurred between 22 November 2012 and 19 December 2014. The plaintiff has recently obtained leave to amend his claim to include allegations of the tort of false imprisonment against the Commonwealth and each of the other defendants following the decision of the Supreme Court of Papua New Guinea that the detention of the detainees at the Centre was unlawful under PNG law.

16 The pleadings raise issues relating to the Commonwealth's alleged control of the Centre, the detention conditions, the length of detention and the time taken to process refugees' status determinations, remediation work at the Centre (including in respect of facilities, staff and security) and the role of the PNG Mobile Squad. It is also relevant that the plaintiff alleges that the Commonwealth's conduct involved a contumelious disregard of detainees' rights, was punitive, cruel, high handed and in disregard of Australia's Convention obligations, allegations directed at a claim for exemplary damages.

17 The plaintiff apprehends that the documents may demonstrate or be relevant to:

(a) effective control by the Commonwealth over the Centre;

(b) the living conditions experienced by detainees at the Centre;

(c) an alleged punitive or deliberate element to the standard of living conditions at the Centre; or

(d) the Commonwealth's awareness of the risk that detention at the Centre was or may have been unconstitutional under PNG law, and thus unlawful.

18 As at 24 June 2016, the Commonwealth had reviewed over 250,000 documents, resulting in discovery of over 78,000 documents. Discovery has been effected in stages. Discovered documents were then reviewed by a hierarchy of Australian Government Solicitor lawyers to assess whether documents required a claim of privilege (whether legal advice privilege, parliamentary privilege or public interest immunity). After preliminary assessments were made, documents were referred to relevant agencies - such as the Department of Foreign Affairs and Trade ('DFAT') - to obtain instructions as to whether claims should be asserted for PII.

19 Around 5,000 documents have now been referred to DFAT for this purpose, 3,000 from the first stage and 2,000 from the second. Of that number, the Commonwealth asserted foreign relations PII claims in respect of about 700 documents from stage 1 and another 200 from stage 2.

20 Due to the expectation that foreign relations PII claims would need to be assessed on a contents basis (that is, document by document),[18] the sheer logistics of adducing relevant evidence, holding hearings and making determinations in a timely manner over such a large number of documents presented real difficulties. In the first instance, a regime has been designed requiring the parties to select 15 documents from the total population of foreign-relations documents as 'sample documents', to have the objections made in respect of them determined ahead of the whole body. The hope is that the determination of those sample documents might assist the parties in making informed, appropriate concessions about some or all of those that remain.

21 The selection process has been completed.[19] A full list of the 15 sample documents appears in the table in Schedule A to these reasons. The parties selected 12 documents as representatives of six different categories of documents, each party choosing one for each category, then the Commonwealth selected three additional documents. The six categories were:

• Category A: References to activities of, interactions between, assessments of or commentary about PNG Defence Force and/or PNG Police (including PNG Mobile Squad);

• Category B: Commentary by Australian staff/officials on PNG's capacity to operate/manage the centre independently or without Australian support/assistance;

• Category C: Commentary by Australian staff/officials on PNG's capacity to conduct Refugee Settlement Determinations ('RSDs'), resettle refugees, etc, independently or without Australian support/assistance;

• Category D: Records of Australia's responses to and the progress of implementation of recommendations made by taskforces, reviews and other specifically-appointed bodies or officials;

• Category E: Commentary by Australian staff/officials about PNG's medical infrastructure/standards/capacities/staff; and

22 In his affidavit, Mr Andrew Baker, a solicitor for the plaintiff, identified the particular subject matter relevant to the proceeding that the documents in each category may contain. When, below, I commence consideration of documents in each category, I will set out what Mr Baker expected might be contained in them.

23 Of the 15 documents selected by the parties, three were documents that related to, or included information relating to, the International Committee of the Red Cross (ICRC) and its work of monitoring the application of international human rights law at the migration detention facilities at Manus Island and on Nauru.[20] Otherwise, the documents contained information that related to Australia's relationship and interests with PNG.

24 By the time of the hearing on 22 July 2016, the parties had resolved their issues concerning the three ICRC documents,[21] and the Commonwealth no longer pressed its objections in respect of a further (non-ICRC) document. That meant that only 11 documents were the subject of final debate.[22]

25 Of those 11 documents, a number of further distinctions need to be mentioned. First, in relation to three, the Commonwealth asserts that each entire document should be protected from disclosure (whole document claim). In relation to the other eight, only parts of the particular documents are sought to be protected (part document claim). In respect of part claims, other than the redacted parts, the remainder of the document is available for inspection.

26 Further, in relation to all redacted parts in seven documents, and some redacted parts in another two documents,[23] the Commonwealth accepts that the risk of harm to the national interest can be adequately controlled by permitting their disclosure (or those parts of them that are subject to a claim) only to the plaintiff's nominated legal representatives with certain other conditions. Wider disclosure would remain prohibited. The terms of orders to effect such a regime have been proposed by the Commonwealth. They are set out in Schedule B to these reasons. If the Court is persuaded to make such orders in respect of any document, the plaintiff has accepted that this regime is appropriate. Hereafter, where I refer to the 'limited access regime' I refer to the orders in Schedule B.

27 The documents (or the relevant parts thereof) which the Commonwealth accepts could be disclosed under the limited access regime are referred to as those subject to a 'limited access claim'. However, notwithstanding his acceptance that the form of orders would be appropriate if the Court accepted the Commonwealth's argument, the plaintiff maintains his claim for unrestricted production of those documents the subject of the Commonwealth's limited access claims. The plaintiff argued that any regime under which access to documents is limited to a subset of the plaintiff's legal team, and excludes the plaintiff's experts or lay witnesses, will be unworkable in the proceeding and would create an unavoidable prejudice to the plaintiff's preparation for trial.

28 The Commonwealth's position in respect of the limited access claims[24] requires a little further explanation. It suggested the Court's approach to these documents should be as follows:

(a) be satisfied from the evidence that harm would be caused to the national interest from disclosure of the information;

(b) inspect the document to determine whether the evidentiary value is such that the administration of justice would be frustrated if disclosure was withheld;

(c) uphold a claim for PII if it is unlikely the document would yield any relevant evidence in the proceeding; but

(d) having regard to the Commonwealth's concession that it would be an adequate means of protecting the national interest to do so, if a document did contain relevant material, make orders permitting access to the documents to specified persons on behalf of the plaintiff but restricting the publication of any use made of the material in evidence.

29 I will deal with the competing positions of the parties as I come to determine the outcome of the claims and challenges to each document. But it is timely to add some additional comments which apply generally.

30 First, it may seem premature to make orders now concerning the manner in which any evidence of the protected material might be adduced or submissions made about that material at trial. At trial, the judge will be in a much better position than I to know exactly how important the material is to the case, and circumstances may have changed in terms of its sensitivity or confidentiality. At that point, too, provisions of the Open Courts Act 2013 (Vic) will clearly be engaged, and the interests of others (eg the media) will need to be taken into account. However, I think it is desirable that there should at least be a default position put in place now so that the parties are in no doubt about the position until such time as another judicial officer says otherwise.

31 Secondly, the existence of other means available to the Court to limit the publication of sensitive material is itself a consideration to be taken into account when weighing the competing public interests between disclosure and non-disclosure, as seen in s 130(5)(d). In other words, they are not simply alternative dispositions to be considered after deciding the primary issue. As discussed more specifically below,[25] those alternative means can call into question whether the relevant public interest in the administration of justice is satisfied merely by ensuring the litigant can vindicate private rights or whether it also requires full public transparency in the process of doing so.

32 Apart from the limited access claims, there are two documents (the diplomatic cables), and parts of two others, the Commonwealth considers to be so sensitive that the risk presented by disclosure of their contents could not be adequately managed by a limited access regime: those documents are referred to as being subject to a 'Full PII' claim.

33 By orders made by the court on 11 May 2016 ('restricted disclosure orders'), the contested parts of nine of the 15 sample documents were made available to the lawyers for the plaintiff to enable them to prepare for and conduct argument. They include six of the documents now identified as being subject to limited access claims.[26] Beyond that, the plaintiff's lawyers have not seen the documents, or the parts of the documents, over which the Commonwealth maintains its objection to production.

34 The table in the Schedule A to these Reasons identifies the 11 documents that remain in dispute. It states the title of each document, its Ringtail ID, its category, whether the claim is made over the whole document or only part, and whether it is a limited access claim or full PII claim or a mixture of both.

35 The Commonwealth's evidence concerning the sensitivity of the contents of the foreign-relations documents was given in an affidavit affirmed by Mr Daniel Sloper on 24 June 2016. Mr Sloper is currently employed by DFAT as the First Assistant Secretary of the Pacific Division. He explained that he leads a team responsible for foreign trade and development policy in support of Australia's bilateral and regional relations with the Pacific. His division has approximately 124 full-time staff, divided into five branches. One of the branches is the Papua New Guinea branch, which focuses largely on Australia's bilateral relationship with PNG. Mr Sloper is the most senior officer in DFAT with day-to-day responsibility for the policies which relate to Australia's bilateral relationship with PNG. He has been employed within DFAT since 1994 and, particularly in the last 10 or so years, has held a number of senior public service positions both in Australia and abroad.

36 I accept that Mr Sloper is well qualified to give relevant and informed evidence on the subject of the sensitivity of material to Australia's relationship with PNG and to its international relations more broadly. Further, I accept that due to historical and cultural reasons, Australia's relationship with PNG is a specialist and somewhat nuanced field. Knowledge of the personalities and relationships of the individuals who hold office in PNG is likely to be very important in making any reliable assessment of the consequences of any disclosure. I bear in mind the risk of underestimating the sensitivity of certain information by virtue of not having the nuanced understanding that a person with Mr Sloper's knowledge and experience would have.

37 For these reasons I consider that Mr Sloper's views should be accorded significant weight especially regarding specific subject matter which is likely to be of real sensitivity. Indeed, because of Mr Sloper's specialised experience in these matters, and because the court does not have the same experience in dealing with the diplomatic service network and foreign governments, the court would be slow to adopt a view different to his concerning the significance and effect of communications between governments and officials, and within a government, about another government and its officials. Of course, that is not to deny that the court is bound to form its own views about those matters,[27] but I would need to have a good reason to prefer some other view.

38 In his evidence, Mr Sloper explains the relevant characteristics of Australia's bilateral relationship with PNG, the nature of the documents over which foreign relations PII claims have been made, and the harm that he considers could follow from the release of those documents. Parts of his affidavit have been redacted where he detail matters which themselves would potentially cause harm to Australia's foreign relations if disclosed. I have been provided with an un-redacted copy of his affidavit, but the plaintiff and his advisors have not been. Having read the affidavit, including its redacted parts, I am satisfied that, at least for the purposes of the argument, it was appropriate to redact those parts which have been covered up.

39 Mr Sloper gave evidence at some length about the bilateral relationship between Australia and PNG, and the anticipated harms that would follow from the disclosure of the documents. To the extent that I can do so without exposing the sensitive material that has been redacted in the affidavit, I will summarise significant aspects of Mr Sloper's evidence.

40 Mr Sloper expressed the view that the bilaterial relationship with PNG is one of Australia's most critical and sensitive. He cited a statement made by the Secretary of DFAT, Mr Peter Varghese AO, in a speech given on 20 August 2015, namely

... perhaps more than any other single relationship the state of our relationship with PNG is seen as a barometer of Australian foreign policy success.

Mr Sloper also noted that Australia's relationship with PNG not only benefits from but is also complicated by the two countries' shared history, including Australia's administration of Papua between 1906 and 1945, and then the single territory of PNG from 1945 to 1975.

41 He identified the key elements of Australia's engagement and relationship with PNG as being:

42 Under these various headings he described particular features of the engagement. Without repeating all of them, those features included:

• the extensive nature of the security and defence cooperation both in monetary and personnel terms;
• the strong interest Australia has, and the investment it has made, in improving human development and eradicating poverty in PNG, as well as building an effective public sector, the rule of law, infrastructure, workforce skills and better health and education;
• the extensive nature of bilateral trade and investment between the two countries - there being over 5,000 Australian companies exporting to PNG and, in 2015, investment by Australian business in PNG of approximately $19 billion;
• the shared work of both countries under the Torres Strait Treaty in protecting the environment, facilitating the movement of Papua New Guineans across the Torres Strait to maintain their traditional customary practices and, more broadly, to address border and maritime security issues including people smuggling and human trafficking; and
• the cooperation with one another to promote peace and security, and open trade and investment, in the Asia-Pacific.

43 Throughout, Mr Sloper emphasised the importance of maintaining a harmonious bilateral relationship between Australian and PNG officials to carry out and maintain this engagement and relationship. Mr Sloper attached particular importance to the need to preserve a relationship of trust and confidentiality between officials representing the two governments.

44 Mr Sloper identified three species of harm which he considered would flow from the disclosure of the contested parts of the documents. Exposing the details of those species of anticipated harm would in itself disclose some of the material that is sought to be protected. In broad compass, all consist of views, information or reports the disclosure of which Mr Sloper believes could cause injury to the relationship of trust and confidentiality which, he has argued, is fundamental to maintaining the relationships between officials which, in turn, are essential for types of engagement he described.

45 After referring to the types of responses that could be expected from PNG officials from the disclosure of the materials, Mr Sloper continued:

In my view, these types of responses would be damaging to both Australia and PNG's national interests and there is a substantial risk that they would occur if some of these documents were disclosed.

46 He went on to address the need for confidentiality and said:

I consider that a number of the documents would, if publicly released, risk undermining the Australian government's capacity to give assurances to PNG politicians or officials about the confidentially of high level government communications. In addition to a breach of trust between Australian and PNG politicians/officials, there is also, in my view, a real risk that other nations will also doubt Australia's ability to offer meaningful assurances that documents will be kept confidential.

...

If other countries lose confidence in Australia's ability to keep information confidential, then they will likely be less willing to communicate openly and frankly with Australian officials in writing, or where they perceive what they say may be written down. Any such reticence would undermine Australia's ability to build relationships, discuss sensitive issues, make frank representations, and negotiate confidential agreements with foreign partners.

47 Mr Sloper also thought this sort of 'chilling' effect would affect Australia officials employed in diplomatic roles and would be particularly true of diplomatic cables.

48 In response to Mr Sloper's evidence, and before dealing with each document individually, the plaintiff made eight general points about the foreign relations documents. I only intend to address three of those points specifically.

49 His fourth point was to the effect that Mr Sloper's evidence about the sensitivity of the documents was undermined by publicly available Australian government reports which contained very strong, negative comments about PNG. In addition, the plaintiff highlighted various non-redacted parts of the documents and some of the open parts of Mr Sloper's affidavit which explained his objections to the disclosure of the redacted parts. In each case, the plaintiff argued that the open elements of Mr Sloper's affidavit and the documents themselves revealed enough of the so-called sensitive material, or at least indicated enough of its subject matter, as to undermine any need for confidentiality about the balance.

50 The Commonwealth's answer to this is threefold. First, it said that where the plaintiff does not actually know what is contained in the redacted text, his guesses are generally inaccurate. Secondly, it said if the plaintiff is right then it is difficult to see what forensic disadvantage he would suffer if the disputed material is not disclosed. And, thirdly, it said that whereas the negative comments about PNG and the publicly disclosed reports which the plaintiff relies upon are very general, the redacted information is more specific, detailed and expressed more provocatively or directly towards particular individuals, and is thus more apt to affect sensitivity.

51 Each of the Commonwealth's answers has some merit. In addition, there is a degree of opportunism in the plaintiff's argument on this point. Quite correctly, the plaintiff insisted upon precise and cogent reasons for objections, avoiding amorphous statements at a high level of generality (as argued in his eighth point in his written submission). When the Commonwealth does just that, the plaintiff fixes upon the level of detail as revealing so much disclosure of the substance as to undermine the claim for immunity. Consistently with the principle stated above, I should be wary of underestimating the potency of an idiosyncratic sensitivity where such sensitivity is claimed by a person with nuanced knowledge and understanding of a specialised field. Additionally, I take note of the observation that there is a difference between general propositions, on the one hand, and specific, detailed and personal observations on the other, in terms of their capacity to cause insult and offence. All these considerations are matters for evaluation on a document by document basis.

52 The plaintiff's fifth point builds upon the acknowledged fact that in its review of discovered documents, the Commonwealth made numerous inconsistent claims in respect of public interest immunity over different versions of the same document or, in some cases, identical copies of the same document. That is, some reviewers marked the document for a possible immunity claim while others, reviewing the same or a similar document, did not. The plaintiff argued that this phenomenon seriously undermines the claims for sensitivity in respect of those documents for which inconsistent claims have been made.

53 At one level, the plaintiff's observations raise some legitimate questions. But, having considered the evidence about the Commonwealth's discovery exercise, it is unsurprising that the vast dimension of it and the relative speed in which it was performed brought to fruition a risk that inconsistent claims would be made. Different reviewers will bring differing perspectives to the task, and some will simply make mistakes. When I have before me direct evidence from a very senior DFAT officer who has read each document and given evidence about it, it is something of a distraction to pay too much regard to why claims were not made in relation to the documents by persons with inferior knowledge and experience.

54 The plaintiff's sixth point is one that I have substantially dealt with already. It was that evidence only of the risk of harm to the national interest is not sufficient to engage s 130(1). In addition to what I have already said about this, criticisms of particular words used to describe the nature of the harm - 'substantial risk', 'real risk' or just 'risk', sometimes with the words 'may' or 'might' - descended to an unrealistic parsing of individual phrases. Although it was reasonable and proper to draw attention to the causal nexus required by the Act and the evidence put forward by the Commonwealth in support of its immunity claims, at times the plaintiff's argument overlooked the true tenor of Mr Sloper's evidence gained from looking at it in its totality.

55 Despite principles to the effect that the court's inspection of the un-redacted documents should be sparingly exercised,[28] in final submissions, both sides encouraged me to inspect the documents for the purpose of arriving at my decision. The Commonwealth provided me with a folder of un-redacted documents. As I deal with each document below I will disclose whether or not I took up that invitation.

56 Having regard to the evidence and to the parties' submissions I propose to deal with each document by considering the following matters:

• its category, and the apprehended subject matter of documents within that category as explained by Mr Baker;

• whether the Commonwealth's claim for protection is as a class claim or a contents claim;

• the part or parts of each document over which a claim is made, and the surrounding context of those parts;

• the specific ground claimed, whether that ground has been sufficiently specified, the nature of the risk of harm that is described and the degree of its currency;

• whether, in view of the above matters, there is a prima facie public interest in non-disclosure;

• whether, in view of the category of document, the surrounding context of the disputed part, the plaintiff's apprehension of relevance and my inspection of the whole document, there is some legitimate forensic purpose in disclosure of the disputed parts;

• if there are competing public interests, having regard to the factors in s 130(5) and other relevant factors, which public interest predominates.

57 In weighing the two public interests, where it is necessary to do so, I will bear in mind that this is not a criminal proceeding. Yet, it is a substantial civil action in which the interests of a significant number of persons are in issue. The subject matter of the proceeding engages important matters of principle at a high level.

58 Category A documents are those thought to contain references to activities of, interactions between, assessments of or commentary about PNG Defence Force and/or PNG Police (including PNG Mobile Squad). Mr Baker stated that he considered that the redacted content in documents within this category may include the following subject-matter:

(a) an incident involving the PNG Navy and PNG Police on 18 October 2013;

(b) the relationship and interaction between Australian contractors and the PNG Defence Force and difficulties therein;

(c) attitudes and effectiveness of the PNG Defence Force;

(e) problems with the conduct and competence of the PNG Mobile Squad to enforce order;

(f) issues relating to payments to the PNG Police and Mobile Squad prior to February 2014; and

(g) circumstances surrounding the death of Reza Barati and related police investigations.

59 The first Category A document ('document 0170') is titled Decision Brief for CJATF: Manus Island Regional Processing Centre Security Risk Assessment. I did not consider this to be a document that would deserve protection by reasons of its membership of a class of protected documents. I inspected the document itself.

60 It is a 24 page document. It appears to be a draft. Of the entire document, only four short passages appearing on four different pages have been redacted: at pages 14, 17, 18 and 24. The redacted parts of this document have not been seen by the plaintiff under the restricted disclosure orders made on 11 May 2016. The Commonwealth makes limited access claims over those parts.

61 I have considered Mr Sloper's grounds for objecting to each part. His grounds are specific to each part and are sufficiently precise.

62 The plaintiff's assumption about the redacted passage on page 14 from its context is misplaced. His conjecture that the material redacted on page 24 would be comparatively insignificant having regard to openly published DFAT material regarding problems with law and order in PNG, also does not address the particular concern which Mr Sloper has about that passage. In my view, as with the passage on page 14, the passage on page 24 gives rise to the very type of response risk which Mr Sloper has described in his affidavit. The redactions on page 18 of the document are, in my view, in the same category as those on page 24. That material carries the same response risk which Mr Sloper has identified. As for the redacted text on page 17, Mr Sloper says that he considers its disclosure would likely cause offence in PNG and provoke an adverse response by PNG against Australian interests. He gives reasons for his view. In my opinion Mr Sloper is justified in forming that view.

63 Consistently with the principles I have outlined earlier, that Mr Sloper refers to there being only a 'real risk' that PNG politicians/officials would interpret the material in a way which would provoke an adverse response or compromise relationships and the free exchange of information, does not disqualify the document for protection under PII.

64 In my view each ground of objection identifies a matter of real detriment, being the likely provocation of an adverse response by PNG against Australian interests. In each case I am satisfied the reason for the sensitivity remains current. In my view, there is a demonstrated public interest in the non-disclosure of each of the redacted parts on the grounds as put forward by Mr Sloper.

65 I turn to the public interest in the disclosure of the material (ie the administration of justice).

66 In respect of the parts redacted on pages 14 and 24, the Commonwealth argues that the redacted portions have little or no relevance to the proceeding. Having read the passages, I agree. The plaintiff's lack of ability to use these passages does no damage to his ability to rely upon the whole document for the purposes he summarises at page 25 of his written submission. The redacted material at page 18 has little or no relevance to the proceeding. To the extent that the material that is redacted has any relevance, the substance of it may be gleaned elsewhere in the document.

67 The redacted text on page 17 of the document may have somewhat more relevance - it has a bearing on some of the general topics Mr Baker identified may be contained in this category of document. But it probably has little forensic importance being of a very general nature. The Commonwealth describes its degree of relevance as peripheral. That may be so.

68 I then come to weighing the two public interests. In respect of the material at pages 14, 18 and 24 I think there is a strong case for protection but either a weak or no case for the material having any forensic value. Similarly, I think there is a strong case for protection of the material at page 17 but to the extent that the redacted passage has any forensic value, the disclosure risk to the national interest of the kind described by Mr Sloper clearly outweighs it. There is unlikely to be any significant benefit to the administration of justice in making the redacted material available either as information to the plaintiff or as evidence in the trial. To the extent that there may be some advantage in making the material available as information to the plaintiff, the limited access regime offered by the Commonwealth affords a satisfactory means of doing so while providing an adequate means of protecting its confidentiality.

69 So, I uphold the Commonwealth's claim for protection of the relevant parts of the document subject to their production under the limited access regime.

70 The second Category A document ('2809') is titled FW: MOBILE SQUAD [SEC=UNCLASSIFIED]. I did not consider this to be a document that would deserve protection by reasons of its membership of a class of protected documents. I inspected the document itself.

71 The Commonwealth makes a limited access claim over the whole of this document. It comprises five printed pages containing a chain of emails. Document 2809 has been made available to the plaintiff under the restricted disclosure orders made 11 May 2016.

72 I have considered Mr Sloper's grounds for objecting to production of this document. His grounds are sufficiently detailed. I am satisfied the reason for the sensitivity remains current. Pages 3-5 of the document contain an email from a General Manager employed by G4S dated 10 February 2014, subject 'Mobile Squad'. Mr Sloper concedes this email has been publicly released on the Australian Broadcasting Commission website on 27 May 2014. But it is the destination of the email that most concerns Mr Sloper. I do, of course, respect his views, coming as they do from a person with a nuanced understanding of matters as I have already mentioned. On the other hand, the plaintiff makes the valid point that the fact that other material published on the DFAT website would convey to a reader similar implications to those which Mr Sloper wishes to avoid somewhat undermines the claimed sensitivity concerning public knowledge about the hands into which this particular G4S email passed.

73 I do not discount the possibility that revelation of the fact that this email reached certain quarters may of itself give rise to some degree of awkwardness at an official level. But, considering that the additional emails in the chain after the particular G4S email themselves reveal very little by way of comment - although there is some information conveyed - I judge the degree of sensitivity of the entire email chain, over and above what is already publicly known, to be at a relatively modest level. Although the document may qualify for protection from disclosure in the national interest, I see this sequence of emails, as a whole, being near the margins of that public interest.

74 Turning to the countervailing consideration, the subject matter of the G4S email is relevant to some of the topics nominated by Mr Baker. The plaintiff's submissions which are specific to the email itself reinforce that conclusion. In addition, the plaintiff's submissions set out a persuasive argument why the evidence of the destination of the G4S email is also of value to the plaintiff's case. Specific reference is made to paragraph 65 of the second amended statement of claim and of the allegations of knowledge contained therein. Although I take into account that similar evidence may exist elsewhere, I agree that this particular chain of emails has the capacity to provide some specific evidence of legitimate forensic value to the plaintiff. Perhaps the only question about that matter concerns the timing of the later emails relative to any particular event. But that is not a point the Commonwealth appears to have taken issue with.

75 Although the limited access regime would provide a means to limit the document's publication, in my judgment, the predominant public interest in the case of this document favours its open disclosure. Accordingly, I reject the Commonwealth's objection to giving full and open production of it.

76 I now turn to documents in Category B. Category B documents are those thought to contain commentary by Australian staff/officials on PNG's capacity to operate/manage the centre independently or without Australian support/assistance. Mr Baker stated that he considered that the redacted content in documents within this category may include the following subject matter:

(a) the respective capacities of the Australian and PNG government in the operation of the centre;

(b) references to aspects of the implementation of the Administrative Arrangements and the Regional Resettlement Arrangement between the two countries;

(c) references to establishment and costs of infrastructure on Manus Island;

(d) references to PNG's role in the effectiveness of the No Advantage policy; and

(e) requests for assistance from the PNG government to the Australian government.

77 The first Category B document ('6968') is titled Brief 14 - Briefing for appearance before the Committee Against Torture - Offshore processing arrangements. I did not consider this document deserved protection by reason of its membership of a class of protected documents. I inspected the document itself.

78 After withdrawals of claims by the Commonwealth and challenges to claims by the plaintiff, the Commonwealth makes a limited access claim in respect of the text bubble accompanying the proposed deletion to one deleted paragraph appearing on page 2 of this seven page draft document. No claim is now made in respect of the deleted paragraph itself. The plaintiff has had access to it under the restricted disclosure orders made 11 May 2016.

79 I have considered Mr Sloper's grounds for objection to the redacted parts of this document. His grounds are sufficiently detailed. As inspection of the document reveals, it is a draft of a briefing paper. It consists of a series of headings under which short statements appear in bullet point format. The statements are pitched at a high level of generality mostly supplying background information recording the past and current arrangements for establishing and maintaining the regional processing centres at Manus Island and on Nauru. I am satisfied the reasons for the sensitivity remains current. Mr Sloper regards the explanatory text bubble as sensitive for the explanation it contains for the deletion of the paragraph.

80 There were, in effect, two related things with which Mr Sloper was concerned: the primary subject matter in the deleted paragraph itself and the reason expressed in the text bubble for bringing about its deletion. But the Commonwealth now only presses its claim for the protection of the text bubble. The plaintiff argued that the primary information is non-controversial and is well known. In particular, he drew attention to parts of document 14 (0207) to be considered below. But there is a particular explanation in the text bubble about a phrase in the deleted paragraph that Mr Sloper considers might be construed as having some wider implications, diplomatically, than the immediate issue at hand. Respecting the views of Mr Sloper, I do not discount the prospect that the redacted text, if exposed, could cause some offence harmful to Australia's interests. But, in the scheme of things, I view that at the lower end of sensitivity.

81 On the other hand, I do not regard the redacted text - either the paragraph, still less the text bubble - as having any special forensic value. I say that particularly having regard to the existence of the other material available to the plaintiff elsewhere, which contains significantly more detail and forensic weight.

82 In my judgment, although the level of sensitivity and the forensic value in each case is quite modest, the predominant public interest in this case favours the non-disclosure of the redacted text bubble. I reach that conclusion more comfortably because of the Commonwealth's concession that this part be the subject of a limited access regime which I will provide for.

83 The second Category B document ('2233') is titled Forward Plan. I did not consider this document deserved protection by reasons of its membership of a class of protected documents. I inspected the document itself.

84 After withdrawals of claims by the Commonwealth and challenges to claims by the plaintiff, the Commonwealth makes a limited access claim over three specific parts appearing on three different pages of this 13 page document, and a full PII claim over one part. The plaintiff has had access to it under the restricted disclosure orders made 11 May 2016.

85 I have considered Mr Sloper's grounds for objecting to redaction of the relevant parts of this document. His grounds are sufficiently detailed and I am satisfied the reasons for the sensitivity remains current. The document is in the form of a spreadsheet with rows and columns. The first eight pages contain headings to columns beginning with 'Identified Gap', with rows numbered 1-37 (referred to as 'lines' in the submissions). Pages 9-13 have columns beginning with 'Systemic Issue' and rows that are not numbered but are instead designated by an issue description.

86 The first part over which a claim for sensitivity is made is line 1 on page 1. The plaintiff no longer contends that this line will have any forensic value, as it concerns Nauru. However, he does not admit the line has any sensitivity meriting protection. Having read Mr Sloper's explanation for it, I accept that it does have sufficient sensitivity to warrant protection in the national interest albeit, it seems to me, at the lower end of the scale. Given that it has no forensic value there is no need or basis for which it should be available under a limited access regime; so it will remain subject to full PII protection.

87 The second part over which a claim for sensitivity is made is line 9 appearing on page 3. Although, as the Commonwealth concedes, parts of the text are similar to that which appears openly elsewhere, I accept there is also a significantly different element to the redacted text that has particular sensitivity for the reason Mr Sloper explains. Further, that additional element appearing in the text, not replicated elsewhere, does not seem to have much forensic value for the plaintiff's case. Yet I cannot discount the prospect that it may have some value. Nevertheless I am persuaded that the national interest for protection predominates. I uphold the Commonwealth's claim. I am further reassured in this conclusion by the Commonwealth having proffered access under the limited access regime which I will provide for.

88 The third part over which a claim is made is line 17 appearing on page 4. Against the background of Mr Sloper's explanation of sensitivities in the main body of his affidavit, I accept that the particular wording of this redacted text contains particular triggers for broader sensitivities that would be harmful to the Australian interest. While the substance of the text may appear elsewhere, as the plaintiff contends, I acknowledge that particular expressions are apt to trigger specific offence in the nuanced environment Mr Sloper has described. Further, I doubt that the particular sentence in question adds much, if at all, to the plaintiff's forensic case. To the extent that it may do so, any disadvantage to the plaintiff can be sufficiently addressed by him having access to it under the limited access regime which I will provide for. Taking that alternative means of access into account, I uphold the Commonwealth's objection and will order access under the limited access regime proffered.

89 The fourth part over which the Commonwealth makes a claim is the middle (largest) text box in the middle column appearing on page 13 of the document. Having read Mr Sloper's comments about this portion I have no doubt it is sensitive for the reasons he gives. I reiterate my comments above about the propensity particular expressions may have in triggering wider and more harmful sensitivities. I am not persuaded by the plaintiff's submission that the existence of other discovered documents over which no foreign relations PII claims were made negates the sensitivity which Mr Sloper has specifically identified.[29] I have commented on this argument generally above.[30]

90 The Commonwealth has proffered a limited access regime in respect of this part of the document. Once again, to the extent it contains relevant evidence that could not be obtained from other material, I consider that any public interest in the use of this material can be met by allowing the plaintiff access under that regime. Taking into account the alternative means of access to the plaintiff under the limited access regime, I consider the public interest favours upholding the Commonwealth's objection over this part.

91 A final observation: the constrained approach of the Commonwealth to claims in relation to the various parts of this document illustrates the application of the principle that claims should only be made to the extent necessary to protect the relevant public interest, and not beyond.[31]

92 I now turn to documents in Category C. Category C documents are those thought to contain commentary by Australian staff/officials on PNG's capacity to conduct RSDs, resettle refugees, etc, independently or without Australian support/assistance. Mr Baker stated that he considered that the redacted content in documents within this category may include the following subject matter:

(a) commentary regarding the extent of the Australian Government's involvement in the RSD process in PNG;

(b) handing down of RSD decisions to detainees;

(c) assessments of PNG public officials' capacity to perform RSD's independently;

(d) the provision of mentors from the Australian Government to assist with the RSD process;

(e) requests from the PNG Government to the Australian Government for assistance with involuntary removals from Manus Island; and

(f) the progress of the PNG Government in finalising its National Resettlement Policy.

93 The first Category C document ('9755') is titled GM RHV Manus Island PNG Risk Assessment. I did not consider this document deserved protection by means of its membership of a class of protected documents. I inspected the document itself.

94 The Commonwealth makes a limited access claim over about two thirds of the contents of the first page of a two and a quarter page document. The plaintiff has had access to it under the restricted disclosure orders made 11 May 2016.

95 I have considered Mr Sloper's grounds for objecting to production of the redacted parts of this document. His grounds are sufficiently detailed. I am satisfied the reason for the sensitivity remains current. He considers that the disputed parts contain comments which are likely to be politically sensitive in PNG and seen as insulting and condescending. His specific comments (themselves redacted) bear out that view and, I think, are well justified having regard to the text sought to be protected. In my view there is a clear national interest in preserving its confidentiality. Although there may be other material that is generally critical of PNG published on the DFAT website, I note the Commonwealth's reply is that the 'redacted text here is more specific and extensive than the general commentary the plaintiff relies on'.

96 I readily accept that the content has real potential forensic value to the plaintiff, especially considering the allegations in the second (now third) amended statement of claim to which he has referred in his written submissions. And, although it may be said against him that the other publications to which he referred as undermining the material's sensitivity are also available to him as evidence in the proceeding, the additional specificity that the Commonwealth relies upon may equally increase its evidentiary value to the plaintiff.

97 So, I find there is both clear prejudice to the national interest and real potential evidentiary value to the plaintiff. How is that tension to be resolved in this case? This document throws up the interesting question about the role played by the consideration in s 130(5)(d),[32] namely 'the likely effect of adducing evidence of the information or document, and the means available to limit its publication'. Imposing the limited access regime as proffered by the Commonwealth would, prima facie, mean that the interests of the plaintiff are met by allowing the evidence to be used in the trial. In addition, the national interest would also be preserved by the non-publication orders. But, does the public interest in the administration of justice require not simply the plaintiff's ability to vindicate his rights, but also that the process of doing so take place, and the reasons for its outcome be given, with full public scrutiny?[33]

98 At the time of discovery and inspection (that is, the present), lacking the more detailed knowledge of the issues which would unfold at trial itself, it is difficult to discern the relative importance of this document in the whole scheme of evidence. It is certainly not the role of a judge to take into account sectional political interests in the exposure of this type of material. But the administration of justice itself may justify national and international appreciation for why a particular decision is made a particular way. That interest may - and I emphasise only 'may' - require particular pieces of evidence that otherwise justify confidentiality in the national interest actually being revealed. But at present I am far from able to make that sophisticated judgment. In my view the proper approach is to state that the national interest justifies its non-disclosure, especially given that a limited access regime affords the plaintiff the ability to make use of the evidence at trial subject to the limited access regime unless and until the orders are lifted or varied. At that point at least, other interests (the media) have a right to be heard under the provisions of the Open Courts Act 2013 (Vic).

99 I do not think that the limitations in the running of his case that the plaintiff complains the imposition of the limited access regime will cause will be so great as to tip the balance in favour of full open disclosure. In conclusion, I uphold the Commonwealth's claim for protection of the redacted parts of the document subject to them being included in the limited access regime.

100 The second Category C document ('1120') is titled RE: PNG Mentors' Weekly Report (week ending 24 October 2014). I did not consider this to be a document that would deserve protection by reason of its membership of a class of protected document. I inspected the document itself.

101 The document contains a chain of four emails over two and a half pages. The Commonwealth makes claims for protection over two paragraphs of one email (27 October 2014, 11:28 am) and a sentence in another email (27 October 2014, 9:37 am). The Commonwealth makes full PII claims over two particular sentences in the first mentioned email. It makes limited access claims over the balance of the redacted text. The plaintiff has not been given access to this document nor to the full commentary of Mr Sloper about it.

102 I have considered Mr Sloper's grounds for objecting to the relevant parts of this document. His grounds are sufficiently detailed and precise and the claimed sensitivity is current. I have no hesitation in accepting Mr Sloper's claim for high sensitivity in respect of the two sentences over which full PII is claimed and, similarly, albeit of a lower order, of the balance of the redacted text. A significant feature is the identified author of the primary email and his particular role. I consider that each part deserves protection in the national interest for the reasons given by Mr Sloper.

103 I also accept that the redacted parts contain material that is germane to the evidence and, in particular, to the topics identified by Mr Baker as being topics likely to be covered by Category C documents.

104 In my judgment, the proper balancing of the national interest in the protection for the material, on the one hand, and the plaintiff's forensic interest in the use of it, on the other, is achieved by subjecting most of the redacted parts to the limited access regime offered by the Commonwealth.

105 However, I would exclude from the limited access regime the last sentence in the first paragraph of the email sent at 11:28 am 27 October 2014. Over that sentence I would allow full PII protection. In my view, the forensic value of that sentence is lower than the potential forensic value of the last sentence in the second paragraph in the same email over which the Commonwealth also claims full PII protection. My different assessments of the evidentiary value of each sentence causes me to conclude it is correct to give full PII protection to the first mentioned sentence but only limited access protection to the second.

106 I turn to Category D documents. Category D documents are those said to be records of Australia's responses to and the progress of implementation of recommendations made by taskforces, reviews and other specifically-appointed bodies or officials. Mr Baker considered that the redacted content in documents within this category may include the following subject matter:

(a) Joint Agency Taskforce Force Security Review of the OPCs;

(c) review of Welfare and Case Management Services (McAuliffe/Beronic Review);

(d) review by Robert Cornall of management of allegations of sexual assault at the Manus OPC (Cornall Sexual Assault Review);

(e) Internal post incident review of the 18 October 2013 incident at the Manus OPC (Feld/Palmer Review);

(f) review by Robert Cornall of the events of 16-18 February 2014 at the Manus OPC (Cornall 16-18 February Review);

(g) internal post-incident review of the events of 16-18 February 2014 at the Manus OPC (Mackin/Palmer Review); and

(h) Chief Medical Officer's reviews of health standards at the Manus OPC.

107 The first Category D document for consideration ('0207') is titled Offshore Processing Centre (OPC) Inquiries Task Force: Report on Implementation of Review Recommendations. I did not consider this to be a document that would deserve protection by reason of its membership of a class of protected documents.

108 After withdrawals of various other claims it made, the Commonwealth now makes only a limited access claim over a portion of text appearing in the second bullet point on page 38 of this 40 page draft report. The plaintiff has had access to the report under the restricted disclosure orders made 11 May 2016.

109 There is no need to give any further consideration to this document. It contains precisely the same text as appeared in the fourth redacted part of the text in document 2233 over which the Commonwealth made a limited access claim. In deciding to uphold that claim at paragraph 90 above I gave consideration to the arguments the plaintiff raised in respect of the same text appearing in this document. For the same reasons, I will uphold the Commonwealth's claim for protection subject to allowing its disclosure to the plaintiff under the limited access regime.

110 The next Category D document ('4508') is titled Joint Advisory Committee Meeting. Document 4508 is one over which the Commonwealth appears to maintain an objection both on the basis of its membership within a class and for its contents.[34] The Commonwealth makes a limited access claim over the redacted text on each page of this document.

111 The document has been made available to the plaintiff under the restricted disclosure orders made 11 May 2016. Both parties have made submissions to me addressing its contents.

112 In my opinion Mr Sloper's description of document 4508 brings it within the category of document that merits protection on the basis of its class. His comments about it and his reasons for claiming its protection in the national interest are sufficiently detailed and precise. I am also satisfied that the reason for the sensitivity remains current. It is a document recording a high level meeting between various persons, including a senior PNG official the equivalent of a Secretary to a Commonwealth Department and the then Australian High Commissioner to PNG (a position equivalent to Ambassador in a non-Commonwealth country). Diplomatic convention requires that such minutes be kept strictly confidential and these high level, inter-governmental discussions are evidently undertaken on the assumption that the convention will be observed. Mr Sloper provides two examples of references within the text of the document that bear out his description of it being a document recording frank and confidential commentary. In his view, the very fact of public disclosure of a document of this nature would have 'a very chilling effect on Australian ability to engage in frank confidential discussions with senior officials from both PNG and other countries'.

113 Upon that description, and having regard to the nature of the documents meriting class protection as set out in the authorities,[35] I judge this document as deserving protection as a member of a class, regardless of its contents. When I say 'regardless of its contents', I have had regard to what Mr Sloper said about its contents both generically and specifically to reach the conclusion that, by its nature, its disclosure would have a harmful effect on Australia's international relations. But I reached that conclusion without inspecting the document itself. I therefore uphold the Commonwealth's submission that there is a public interest in preserving the confidentiality of the information which it contains.

114 I turn to the possible relevance of the document and the competing public interest in the administration of justice.

115 The plaintiff argued that decisions made at the level of the Joint Advisory Council regarding refugee processing, services and infrastructure are likely to have had a significant bearing on the standard of care provided at the Centre during the relevant period. He identified two particular subject areas within those broad topics for which he sought the unrestricted disclosure of the document in the proceeding. The Commonwealth conceded the information in the document was 'broadly relevant' but argued that it did not include 'specific information that would substantially assist the plaintiff'. Consistent with principle, and the position accepted by the Commonwealth,[36] at this point I inspected the document.

116 Having read the document I am strengthened in my conclusion that it attracts the public interest for protection in the national interest for the reasons Mr Sloper gave. The Commonwealth has proffered this document as being appropriate for inclusion in the limited access regime if I found that it was likely to yield relevant evidence for the plaintiff such that there was a competing public interest in its disclosure.

117 The document does contain some specific information that may be of value to the plaintiff at trial: it is difficult to judge its particular value at this point. But it does touch upon the matters identified by the plaintiff as being of importance to his case and, accordingly, there is a legitimate forensic purpose for its disclosure.

118 Balancing the two interests, I am satisfied that the appropriate course is to uphold the Commonwealth's claim for protection subject to it being included in the limited access regime.

119 There were two Category E documents. Category E documents are those thought to contain commentary by Australian staff/officials about PNG's medical infrastructure/standards/capacities/staff. It is not necessary that I deal with these documents as, in one case (No 2 A.100.3050.4756), the Commonwealth no longer presses its claims and, in the other (No 9 A.100.3055.3556), the plaintiff no longer presses its challenge to the Commonwealth's claims.

120 The remaining category of documents is the three 'additional' documents added by the Commonwealth to the sample document list. Two are diplomatic cables over which the Commonwealth makes full PII claims over the entire document and the other is a document over which it makes limited access claims to part of the text. I will deal first with the latter document.

121 This document ('1497') is simply titled doc72209241. It is another of the documents over which the Commonwealth has made both a class claim and a contents claim for its protection.[37] It makes a limited access claim over the redacted portions of the text. The plaintiff has not had access to this document under the restricted disclosure orders made 11 May 2016.

122 I have read Mr Sloper's description of document 1497. His comments about it and his reasons for claiming its protection in a national interest are detailed and precise. He states that the author of it would have expected (at the time he wrote the letter), and would continue to expect, that sensitive matters raised in the letter would be kept confidential. Mr Sloper gives examples of the nature of the contents of the redacted text which, in my view, support his statement. He next refers to a 'second redaction' which apparently concerns demands of land owners in Manus. The plaintiff has advised he does not press his challenge to the extent the redacted text relates to land owners.

123 In general, Mr Sloper says that disclosure of sensitive aspects of a communication exchanged at this level of seniority would likely impede Australia's ability to engage in frank exchanges with senior officials in PNG in the future. He also believes the public disclosure of this particular communication would be likely to make the specific individuals referred to less likely to cooperate with Australia in the future. The plaintiff has not had access to the whole of Mr Sloper's evidence on this document and is unable to make submissions addressing its sensitivity.

124 As with document 4508, upon Mr Sloper's description and having regard to the type of documents which generally merit class protection, I also judge this document as deserving of protection as a member of a class, regardless of its contents. Once again, when I say 'regardless of its contents', I have had regard to what Mr Sloper said about its contents. I reached my conclusion without inspecting the document itself. I therefore uphold the Commonwealth's submission that there is a public interest in preserving the confidentiality of the information which the Commonwealth seeks to protect.

125 I turn to the possible relevance of the document and the competing public interest in the administration of justice.

126 The Commonwealth maintains that the redacted information in the document appears to be of peripheral relevance and is unlikely to substantially advance the plaintiff's case. For his part, the plaintiff points to the fact that there are approximately 21 letters between the author of this letter and the Department of Immigration and Border Protection currently included in its Summons. Given that the subject matter of the redacted contents in each document appears to vary in each letter and that the likely relevance of the documents will vary according to their contents, he argues that each must be considered on a case by case basis. Otherwise he is only able to say that communications between the author of this letter and the Department may be significant because they may address the detention arrangements.

127 I considered it appropriate to inspect the document. It is a one and a half page letter. Having read it, and the redacted portions of text, I am strengthened in my conclusion that it attracts the public interest for protection in the national interest for the reasons Mr Sloper gave. The Commonwealth has proffered this document as being appropriate for inclusion in a limited access regime if I found that it was likely to yield relevant evidence for the plaintiff such that there was a competing public interest in its disclosure.

128 The document does contain some general information that may be of value to the plaintiff at trial although I consider it to be at a very low level. There is some general information which appears to encompass some of the topics which are referred to in respect of Category B documents. I cannot discount the possibility the document contains information of some importance to the plaintiff's case and that there would be a legitimate forensic purpose for its disclosure.

129 Balancing the two interests, I am satisfied that the appropriate course is to uphold the Commonwealth's claim for limited access protection in relation to the redacted paragraphs.

130 This cable (PM17339H) is titled PROTECTED PNG: Manus Processing Centre: Progress and Setbacks. The Commonwealth makes a full PII claim over the whole of this document. It has not been made available to the plaintiff under the restricted disclosure orders of 11 May 2016.

131 This is a document over which the Commonwealth claims immunity because of its membership of a class: that is, as a diplomatic cable. As stated above (paragraph [10]), documents properly described as 'diplomatic cables' would prima facie attract the protection as members of a protected class.

132 Mr Sloper says of diplomatic cables that they have a particular and privileged status in international relations and diplomatic convention. He says they are invariably intended to be kept confidential unless there is a specific indication to the contrary. The purpose of this system is to allow diplomats to freely communicate with their home country without fear of surveillance by the government of the country in which they are based. In Australia, this is given effect (with respect to the cables of foreign countries) through the Diplomatic Privileges and Immunities Act 1967.

133 Mr Sloper goes on to say that the public release of any cable, especially one containing sensitive information, is likely to cause foreign governments to have concerns about Australia's ability to protect confidential information, and cause Australia's diplomatic staff to refrain from including confidential information or frank assessments in their cables. Either of these outcomes, he says, would be detrimental to Australia's diplomatic interests.

134 Mr Sloper then provides quite specific and detailed reasons why information in this particular cable is highly sensitive. The text of his comments have not been made available to the plaintiff. Having read Mr Sloper's description of the contents of the cable and the persons to whom it was sent within Australia, I am perfectly satisfied that it is a cable of such a nature that its public disclosure would prejudice the international relations of Australia. There is strong public interest in preserving its secrecy or confidentiality.

135 The plaintiff's counter-argument against upholding the sensitivity of diplomatic cables as a class proceeds from the fact that, apparently, the Commonwealth has discovered at least 50 diplomatic cables over which no claim for PII is made. It has also discovered about another 100 cables over which full PII claim is made, 82 of which are made on the basis of foreign relations. In other words, the plaintiff says that there is no consistent approach to claiming immunity over 'diplomatic cables' simply because that is what they are. He therefore maintains that there must be a case by case analysis of the evidence adduced by the Commonwealth as to the contents of each cable to establish its sensitivity.

136 Even assuming that is the correct conclusion, I am well satisfied on the evidence put forward by Mr Sloper that the content matter and the recipients of this particular cable shows that, were it disclosed, its very disclosure would likely have a deleterious effect on Australian international relations for the reasons Mr Sloper gives. I have reached that conclusion without the need to inspect the document itself. I uphold the Commonwealth's submission that there is a public interest in preserving the confidentiality of the information which it contains.

137 I turn to the possible relevance of the document and the competing public interest in the administration of justice.

138 The Commonwealth maintains that this document is of peripheral relevance and is unlikely to substantially advance the plaintiff's case. The plaintiff, not having seen the contents of the document, argues that any document identifying 'setbacks' in the administration of the Centre and establishing that those setbacks were communicated to senior Australian ministers and officials will be highly important to his case. It may assist in proving his allegations regarding the Commonwealth's awareness of risks and potentially its breaches at the Centre. I agree that the title of the document does excite suspicion that it may contain information relevant to the plaintiff's case. I therefore considered it was appropriate that I should inspect the document to perform the balancing exercise that is required.

139 Having read the document, I am firmly reassured that it is deserving of very high level protection so as to avoid prejudice to Australia's international relations. To outweigh such public interest and justify its disclosure, even under a limited access regime (which the Commonwealth does not proffer in the case of this document) would, in my judgment, require the presence of information of crucial importance to the plaintiff's case. Even if that was so, which it is not here, it would be a difficult decision to permit the disclosure of this document. As it is, the information does not reach those heights and is mostly concerned with matters somewhat away from the risks associated with and the conduct of the Centre.

140 I uphold the Commonwealth's claim for full PII protection over this document.

141 This cable (PM17890H) is titled CONFIDENTIAL PNG: Manus: HOM meeting with Manus Open Member Ronnie Knight. The Commonwealth makes a full PII claim over the whole of this document. It has not been made available to the plaintiff under the restricted disclosure orders of 11 May 2016.

142 This is a document over which the Commonwealth claims immunity because of its membership of a class: that is, as a diplomatic cable. As stated above (paragraph 10), documents properly described as 'diplomatic cables' would prima facie attract the protection as members of a protected class. Mr Sloper repeats, in relation to this cable, the same comments as to the importance of diplomatic cables which he made in respect of cable PM17339H (summarised at paragraphs 132 and 133 above).

143 Mr Sloper provides quite specific and detailed reasons why information in this particular cable is highly sensitive. Most of the text of his comments has not been made available to the plaintiff, although some has been. In the open parts he makes it clear that there are three aspects of the cable that make it particularly sensitive. His comment about the first two are redacted and his comment about the third is partly redacted. In the open part of his commentary he says the sensitivity of the cable is exacerbated by the sender and recipient details showing it had been sent with the approval of the Head of Mission (ie the High Commissioner) and was sent to a number of senior Australian officials (who he identifies in the redacted parts of his commentary). He goes on to say that the public release of this cable is likely to provoke a very strong adverse response from PNG officials and its release could damage diplomatic efforts and relationships both with PNG and with other nations and international organisations.

144 Mr Sloper's comments and his reasons for the sensitivity of this document are detailed and precise. Having read Mr Sloper's description of the contents of the cable and the persons to whom it was sent within Australia, again I am perfectly satisfied that it is a cable of such a nature that its public disclosure would prejudice the international relations of Australia. There is a strong public interest in preserving its secrecy or confidentiality.

145 The plaintiff refers to his earlier counter-argument against upholding the sensitivity of diplomatic cables as a class, as summarised at paragraph 135 above. Additionally, the plaintiff speculated that the document may contain content that was already publicly disclosed from various media reports of statements made by MP Ronnie Knight. The Commonwealth answers that this speculation is incorrect when one reviews the document. Without having reviewed the document, the evidence of Mr Sloper himself about it (in the redacted parts) makes it sufficiently clear to me that the nature of the information discussed at the meeting was not of the kind the plaintiff identifies as having been exposed through media reports.

146 Again, assuming the plaintiff's argument is correct that each cable must be analysed on a document by document basis to ascertain its sensitivity, I am well satisfied on the evidence put forward by Mr Sloper that the content matter and the recipients of this particular cable shows that, were it disclosed, its very disclosure would likely have a deleterious effect on Australian international relations for the reasons Mr Sloper gives. I have reached that conclusion without the need to inspect the document itself. I uphold the Commonwealth's submission that there is a public interest in preserving the confidentiality of the information which it contains.

147 I turn to the possible relevance of the document and the competing public interest in the administration of justice. The Commonwealth maintains that this document is of peripheral relevance and is unlikely to substantially advance the plaintiff's case. The plaintiff, not having seen the contents of the document but only its title, says he is unable to make a comment on the relevance of the content of the document to the proceeding.

148 In cases where there is a clear case for high protection of a document in the national interest - particularly in a case meriting protection as a member of a class - a court would not usually inspect the document to weigh any counterbalancing public interest in the disclosure of its contents unless satisfied that it does or at least might contain relevant evidence. The plaintiff is unable to venture any suggestion as to what relevant evidence it might contain from its title. His speculation as to what it might contain is, I am satisfied, incorrect. The nature of its contents as described by Mr Sloper in his commentary does not suggest to me that it is likely to be of any assistance to the plaintiff, the position the Commonwealth itself has taken in its submissions.

149 In the circumstances I do not consider it is necessary or appropriate that I inspect the cable because I am not satisfied that there is any balancing exercise to be performed.

150 I uphold the Commonwealth's claim for full PII protection in respect of this document.

151 In the foregoing paragraphs I have made conclusions about the extent to which, if at all, the Commonwealth is to disclose the 11 disputed sample documents by giving the plaintiff inspection of them in the discovery process. Those conclusions are summarised in the table set out below. The table only records my conclusions for the 11 documents; references to the other four documents have been removed but the original numbering has been maintained.

152 Further, the table only records the final claims as pressed so that any references to withdrawn claims or challenges to claims are not recorded. Final orders will be made on the assumption that those parts of documents over which the Commonwealth's claims were not pressed will be produced. Similarly the orders will assume that those parts of documents over which the plaintiff's challenge to the Commonwealth's claim was withdrawn, will not be produced. A reference to the limited access orders is a reference to the orders reproduced in Schedule B.

Decision Brief for CJATF: Manus Island Regional Processing Centre Security Risk Assessment

The Commonwealth makes limited access claims over the redacted text on page 14, 17, 18 and 24.

Redacted text on pages 14, 17, 18 and 24 is not to be produced to the plaintiff except in accordance with the limited access orders.

The Commonwealth makes limited access claims over the redacted text on each page of this document.

Redacted text on each page of this document is not to be produced to the plaintiff except in accordance with the limited access orders.

The Commonwealth makes a full PII claim over text in line 1 of this document.

The Commonwealth makes a limited access claim over the text in line 9, line 17, and the middle text box in the third column on page 13 that ends with the word 'enhanced'.

Redacted text in line 1, page 1, is not to be produced to the plaintiff.

Redacted text in line 9, line 17, and the middle text box in the third column on page 13 that ends with the word 'enhanced', is not to be produced to the plaintiff except in accordance with the limited access orders.

The Commonwealth makes a limited access claim over the redacted text on each page of this document.

Redacted text on each page of this document is not to be produced to the plaintiff except in accordance with the limited access orders.

RE: PNG Mentors' Weekly Report (week ending 24OCT2014) PLEASE IGNORE PREVIOUS E-MAIL OF SAME REPORT [DLM=For-Official-Use-Only]

The Commonwealth makes a full PII claim over the final sentence in the first paragraph, and the final sentence in the second paragraph, in the first block of redacted text. All other redacted text is subject to a limited access claim

The final sentence in the first paragraph in the first block of redacted text is not to be produced to the plaintiff.

All other redacted text (including the final sentence in the second paragraph in the first block of redacted text) is not to be produced to the plaintiff except in accordance with the limited access orders.

PROTECTED PNG: Manus Processing Centre Progress and Setbacks

The Commonwealth makes a full PII claim over this document as a whole.

This document is not to be produced to the plaintiff.

Brief 14 - Briefing for appearance before the Committee Against Torture - Offshore processing arrangements

The Commonwealth makes a limited access claim over the redacted text bubble on page 2.

The redacted text bubble on page 2 is not to be produced to the plaintiff except in accordance with the limited access orders.

The Commonwealth makes a limited access claim over this document as a whole.

This document is to be produced to the plaintiff.

The Commonwealth makes a limited access claim over the redacted text on page 1 of this document.

The redacted text on page 1 of this document is not to be produced to the plaintiff except in accordance with the limited access orders.

Offshore Processing Centre (OPC) Inquires Task Force: Report on Implementation of Review Recommendations - Draft Report

The Commonwealth makes a limited access claim over the second bullet point in the redacted text on page 38.

The second bullet point in the redacted text on page 38 is not to be produced to the plaintiff except in accordance with the limited access orders.

CONFIDENTIAL PNG: Manus: HOM meeting with Manus Open Member Ronnie Knight

The Commonwealth makes a full PII claim over this document as a whole. The plaintiff presses its challenge to this claim.

This document is not to be produced to the plaintiff.

153 I will ask the parties to bring in orders that reflect the conclusions I have made in these Reasons.

Table of disputed documents (referred to in [34])

20141013 - EMAIL - Exit meeting with [International Organisation] - debrief notes

Chief Medical Officer Public Health Review Manus Island - Outcomes and Action

The Commonwealth no longer presses any claims over this document

Decision Brief for CJATF: Manus Island Regional Processing Centre Security Risk Assessment

The Commonwealth makes limited access claims over the redacted text on page 14, 17, 18 and 24.

The plaintiff presses its challenge to these claims.

The Commonwealth makes limited access claims over the redacted text on each page of this document.

The plaintiff does not press its challenge to the extent the redacted text relates to landowners, but otherwise presses its claim.

The Commonwealth makes a full PII claim over text in line 1 and a limited access claim over the text in line 2 of this document. The plaintiff does not press its challenge to these claims.

The Commonwealth makes a limited access claim over the text in line 9, line 17, and the middle text box in the third column on page 13 that ends with the word 'enhanced'. The plaintiff presses its challenge to these claims.

The Commonwealth does not press its claims over the redacted text on page 11, or the balance of the redacted text on page 13.

The Commonwealth makes a limited access claim over the redacted text on each page of this document.

The plaintiff presses its challenge to these claims.

RE: PNG Mentors' Weekly Report (week ending 24OCT2014) PLEASE IGNORE PREVIOUS E-MAIL OF SAME REPORT [DLM=For-Official-Use-Only]

The Commonwealth makes a full PII claim over the final sentence in the first paragraph, and the final sentence in the second paragraph, in the first block of redacted text. All other redacted text is subject to a limited access claim

The plaintiff presses its challenge to these claims.

PROTECTED PNG: Manus Processing Centre Progress and Setbacks

The Commonwealth makes a full PII claim over this document as a whole. The plaintiff presses its challenge to this claim.

Brief 14 - Briefing for appearance before the Committee Against Torture - Offshore processing arrangements

The Commonwealth makes a limited access claim over the redacted text bubble on page 2. The plaintiff presses its challenge to this claim.

The Commonwealth no longer presses its claims over the redacted text on pages 1, 4 and 5 or the balance of the redacted text on page 2.

The Commonwealth makes a limited access claim over the redacted text bubble on page 3. The plaintiff no longer presses its challenge to this claim.

Deputy Secretary Mark Cormack's brief - Manus - 3-6 Feb 2014 - v1 JB,AK Edit

The Commonwealth makes a limited access claim over this document as a whole. The plaintiff presses its challenge to this claim.

The Commonwealth makes a limited access claim over the redacted text on page 1 of this document.

The plaintiff presses its challenge to these claims

Offshore Processing Centre (OPC) Inquires Task Force: Report on Implementation of Review Recommendations - Draft Report

The Commonwealth makes a limited access claim over the second bullet point in the redacted text on page 38. The plaintiff presses its challenge to this claim.

The Commonwealth does not press any of the other claims in this document.

CONFIDENTIAL PNG: Manus: HOM meeting with Manus Open Member Ronnie Knight

The Commonwealth makes a full PII claim over this document as a whole. The plaintiff presses its challenge to this claim.

Limited Access Orders (referred to in [152])

1. Subject to Order 2 and until further order of the Court, orders 2 to 11 apply to the confidential information identified in Annexure A to this Order (Confidential Information).

2. The following have access to the Confidential Information: .... (Nominated Representatives).

3. Subject to Orders 4, 5 and 9, Nominated Representatives shall not disclose any part of the Confidential Information, to any person other than a Nominated Representative.

4. Nominated Representatives may disclose Confidential Information to a legal representative of the First Defendant acting in this proceeding.

5. Subject to order 8 Nominated Representatives may disclose Confidential Information to the Court.

6. Subject to Order 7, no physical or electronic reproductions be made of any of the Confidential Information, or any record made of the Confidential Information, by a Nominated Representative without first obtaining the written agreement of the First Defendant or further order of this Court.

7. Nominated Representatives are not prevented from making physical reproductions of any of the Confidential Information for the purpose of preparing for and acting in relation to the matter, provided that any physical reproduction or record made of any of the Confidential Information, when not being used by a Nominated Representative, is stored in a locked container or safe that can only be opened by the Nominated Representatives.

8. If any oral submissions are to be made, or any witness is to be questioned about Confidential Information, that part of the hearing shall take place in closed court. The only persons permitted to be present during such a closed court hearing are the presiding judge, his Associate, court staff and transcript providers, the parties and their legal representatives.

9. If the Plaintiff wishes to provide any Confidential Information to someone other than a Nominated Representative or the Court:

a. They shall advise the First Defendant in writing of who they propose to provide it to and the measures they propose to ensure that this does not lead to further disclosure of the Confidential Information.

b. The First Defendant must within 7 days of being so notified, or within such further time as the Plaintiff agrees or the Court allows, notify the Plaintiff of whether it agrees to the Confidential Information being disclosed in the manner proposed.

c. If the Plaintiff and First Defendant agree on the Confidential Information being further disclosed to a particular person or persons on an agreed basis the Plaintiff may disclose the Confidential Information in accordance with the agreement reached.

d. If the Plaintiff and First Defendant cannot agree on the Confidential Information being further disclosed to a particular person or persons on an agreed basis, within a further 7 days either party the Plaintiff may apply to vary the terms of these Orders upon providing two (2) working days notice to the First Defendant and the other parties.

10. Within 28 days of the conclusion of the proceedings, and any appeals arising from them, any physical reproductions or records of the Confidential Information in the possession, custody, or control of the plaintiff or the Nominated Representatives be securely shredded and electronic records destroyed.

11. Each party has liberty to apply to vary the terms of these Orders upon two (2) working days notice to the other parties.

12. For the avoidance of doubt, these Orders replace the Orders of 11 May 2016 so far as the Orders of 11 May 2016 applied to any of the documents identified in Annexure A to these Orders.

[1] I will rule separately on those that the Commonwealth claims should be protected as 'Cabinet documents' for which the ground relied upon is found in s 130(4)(f).

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

[3] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38 (Gibbs ACJ) ('Sankey').

[4] Alister v R [1984] HCA 85; (1984) 154 CLR 404, 412 (Gibbs CJ) ('Alister').

[5] Alister [1984] HCA 85; (1984) 154 CLR 404, 412 (Gibbs CJ); Holloway v Commonwealth of Australia [2016] VSC 317 [41] ('Holloway'); Commonwealth v Northern Land Council [1984] FCA 252; (1991) 3 FCR 1, 31.

[6] Holloway [2016] VSC 317 [34]; State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553, 568 [47] ('Brazel').

[7] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 619 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ) ('Northern Land Council'); State of New South Wales v Ryan (1998) 101 LGERA 246, 251-2.

[8] Alister [1984] HCA 85; (1984) 154 CLR 404, 412 (Gibbs CJ); Sankey [1978] HCA 43; (1978) 142 CLR 1, 38-9 (Gibbs ACJ), 58-9 (Stephen J), 95-6 (Mason J); Commonwealth v Northern Land Council (1991) 30 FCR 1, 31.

[9] 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].

[10] Sankey [1978] HCA 43; (1978) 142 CLR 1, 42-3 (Gibbs ACJ), 62 (Stephen J).

[11] Commonwealth's written submission: compare [24] and [48].

[12] Rogers v Home Secretary [1973] 388, 412 (Lord Salmon); Sankey [1978] HCA 43; (1978) 142 CLR 1, 58-9 (Stephen J), cited in Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 574-575 (Gummow J); Australian National Airlines Commission v Commonwealth [1975] HCA 33; (1975) 132 CLR 582, 591 (Mason J).

[13] [2013] FCA 1020; (2013) 217 FCR 1, 23 [97].

[14] [2008] WASCA 34; (2008) 36 WAR 83 (Steytler P, McLure JA and Newnes AJA) ('The Australian Statistician').

[16] See the cases cited in The Australian Statistician [2008] WASCA 34; (2008) 36 WAR 83, 93 [46].

[17] See paragraph 6 above.

[18] Notwithstanding some ambiguity in the Commonwealth's final written submissions (see above at paragraph 10), at directions hearings it appeared to be conceded that the foreign relations claims were predominantly 'contents' claims.

[19] The process was supervised by Judicial Registrar Ware.

[20] One document, number 9 in the table in the appendix, was both a Category E and an ICRC document.

[21] The evidence the Commonwealth had adduced in respect of the ICRC documents, being an affidavit by DFAT's Senior Legal Advisor, Ms Katrina Cooper, no longer needs to be considered.

[22] They are, documents 3, 4, 5, 6, 7, 8, 10, 12, 13, 14 and 15 as shown in the table in Schedule A.

[23] Some parts of these two documents are also subject to a 'Full PII claim' as defined below.

[24] That is, the seven documents for which only a limited access claim is made plus the two documents with mixed claims to the extent a limited access claim is made.

[25] See paragraph 97 below.

[26] They are identified in the table in Schedule A by a shaded list number and Ringtail ID.

[27] See, eg, Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 9) [2011] FCA 832 [33] (Logan J).

[28] Young v Quin (1985) 4 FCR 483, 484; Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 619; Spencer v Commonwealth [2012] FCAFC 169; (2012) 206 FCR 309, 322. But see also Ahmet at [32] (Nettle JA and Sloss AJA).

[29] The plaintiff cross-referenced his submission in respect of this part to those he made in respect of document 0207 considered below at paragraph 107.

[30] See paragraphs 5252 and 53 above.

[31] State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553, 563 [24] (Maxwell P, Buchanan and Vincent JJA).

[32] Which, of course, is not to be considered in isolation, but in conjunction with the other ingredients in s 130(5) and any other relevant factors: see Ryan [2015] VSCA 353 [173].

[33] See generally, Commissioner of Police New South Wales v Nationwide News Pty Ltd [2007] NSWCA 366; (2007) 70 NSWLR 643, 658 (Basten J).

[34] See paragraph 10 above.

[35] See paragraphs 9 and 10 and the cases referred to therein.

[36] See paragraph 28 above.

[37] See paragraph 10 above.