Plaintiff v Defendants

2 This is the third of a series of rulings[1] to resolve objections made by the Commonwealth to the production of certain documents upon discovery. Objections have been made on the ground traditionally described as public interest immunity (PII). The statutory basis for the objection is found in s 130 of the Evidence Act 2008 (Vic).

3 For convenience, the objections have been divided into two categories, those categories differentiated by reference to the particular ground relied upon by the Commonwealth for alleging that the document 'relates to matters of state'. One category (the foreign relations and ICRC documents) concerns documents said to meet that description because the disclosure of them would 'prejudice the security, defence and international relations of Australia'.[2] The other category (Cabinet documents) concerns documents the disclosure of which is alleged would 'prejudice the proper functioning of the government of the Commonwealth'.[3]

4 This particular ruling concerns the second category, Cabinet documents, and follows on from Ruling No 3. By that ruling I directed the Commonwealth to provide further evidence in support of its claim that particular documents deserved immunity from inspection because they belonged to the class of 'Cabinet documents'. It has now produced that further evidence.[4] Kamasaee has also filed further responsive evidence.[5] Each side has now filed additional written submissions.

5 A very pleasing result of this process is that what began as a dispute over several hundred documents (claimed to be 'Cabinet documents') has now reduced to a dispute over only six documents (or parts of documents) three of which are the same as each other so, in effect, only four prime documents. That reduction has been achieved by a process of either withdrawal of claim or concession of claim. It is my task now to determine the Commonwealth's objection in respect of those six remaining documents.

6 The relevant principles have already been set out in my previous rulings[6] and I will not be repeating them.

7 The six documents which are the subject of this ruling are as follows:

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

20131121 - Managing Health Issues at OPCs DEP SEC SIGNED [this is the same as 4770]

20131121 - Managing Health Issues at OPCs DEP SEC SIGNED [this is the same as 4770]

Offshore Processing Programme - Programme Board Minutes Meeting 4

Offshore Infrastructure Branch - Post Settlement/Assessment NPP

8 The references to a category in the fourth column of the above table are references to a descriptive classification of document types given by Dr Martin Parkinson, Secretary of the Department of the Prime Minister and Cabinet ('PM&C'), and Mr James Fox, First Assistant Secretary of the Cabinet Division of that department. Each of them has given evidence in support of the Commonwealth's objections to production of these documents. Although the categories are set out in the Appendix to Ruling No 3 I will repeat them here:

Category 2

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

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

...

Category 4

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

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

9 As I have indicated above, the Commonwealth's further evidence was provided in the affidavit of Bruce Taloni. Mr Taloni states that he is employed by the Department of the PM&C as an Assistant Secretary of the Cabinet Division. He gave details of his background and experience which, in my view, well qualifies him to provide reliable evidence on the subjects he has given evidence about. Some portions of his affidavit were not disclosed to Kamasaee and were redacted but I have viewed the un-redacted version.

10 He explained in some detail the Cabinet process. The Cabinet Division is a division within the Department of PM&C which exists to support the Prime Minister, Cabinet secretary and the minister assisting the Cabinet secretary, and the chairs of Cabinet committees, to ensure that government business is conducted in an effective and timely way and that proper collective consideration takes place.

11 Mr Taloni explained that there are some nine Cabinet committees which provide a forum for detailed consideration and discussion of issues before full Cabinet consideration. These include the Expenditure Review Committee ('ERC'). Those committees derive their powers from the Cabinet. Generally speaking, their decisions are brought forward to the Cabinet for endorsement.

12 Mr Taloni explained the system of ministerial responsibility for proposals. Each submission coming before Cabinet and Cabinet committees must have a sponsoring minister. Submissions may be sponsored by more than one minister. Nevertheless, other ministers are thoroughly consulted during the preparation of the submission.

13 Mr Taloni explained the three different mechanisms for putting matters forward before Cabinet: Cabinet submissions, Cabinet memoranda and matters without submission. A Cabinet submission is the key vehicle for bringing a matter to Cabinet. Therefore the Cabinet submission process is the key mechanism for enabling informed decision making in the Cabinet. There are two mandatory consultative processes during the development of Cabinet submissions: the exposure draft and the draft submission. The exposure draft is a working draft circulated to other departments for comment and suggestions. The draft submission is sent to central agencies and affected departments to obtain 'coordination comment' which is the impartial advice of the public service to Cabinet and forms part of the final submission that is circulated to ministers. Final submissions are circulated to ministers at least three working days before the relevant Cabinet meeting.

14 Cabinet memoranda are papers which are submitted by departments rather than ministers, generally in response to requests by the Cabinet (or a Cabinet committee) for supplementary information or the development of options.

15 Matters without submission are only brought to Cabinet in cases of urgency because they otherwise bypass the full submission process. They are generally only permitted if they are an urgent matter of a procedural rather than policy nature, or an urgent policy matter where the parameters of the decision are straightforward and the risks associated with the decision are low.

16 Mr Taloni explained the process of development of these three species of document: Cabinet submissions, Cabinet memoranda and matters without submission.

17 The preparatory work can take many forms including: early drafts of documents; meetings which canvass ideas and options; timetables and planning documents; email exchanges, correspondence and briefing between relevant stakeholders; spreadsheets and working documents setting out key information, or reports and reviews. It is these kinds of documents that the six documents now under consideration comprise, namely documents of the kind described as categories 2 and 4.

18 Mr Taloni explained that, in practice, the process is not necessarily linear but can be complex and non-linear. He supported this description with a flowchart (Exhibit BT-2) which demonstrates in a visual way the potential side paths and return loops which may be involved in the development of a submission, memoranda or matter without submission. Mr Taloni characterised the process as being 'rolling, fluid process of Cabinet consideration, whereby the Cabinet constantly receives Category 1 documents [ie actual submissions], which are informed by category 2, 3 and 4 documents'.

19 Mr Taloni explained what Cabinet minutes are, what they contain and to whom they are circulated. Under the heading 'other matters of relevance' he also described several other species of relevant document. In particular he referred to New Policy Proposals ('NPPs') which, he explained, are the individual proposals that ministers bring forward to the Cabinet or the ERC. These are typically proposals for new policy which require funding and are prepared in conformity with a template. They contain high level information about the proposal and are generally attached to a more detailed submission.

20 He also explained Risk Potential Assessment Tools ('RPAT') which are documents a department prepares for NPPs that will cost more than $30 million. Their purpose is to assist agencies to determine the potential risk of a proposal and then to communicate that risk to a minister before the proposal is sent to Cabinet.

21 Next, Mr Taloni described Implementation Plans. These are required for Cabinet submissions or NPPs that have significant implementation risk. They must be annexed to a submission and they describe how the new policy, program or service will be delivered on time, on budget and to expectation.

22 Having regard to the past evidence filed by the parties, the further evidence which they have each adduced, the principles to which I have referred in my previous rulings and the various submissions each party has made, I now turn to each of the documents in turn. In each case, in respect of the document (either as a whole or as to that part over which the Commonwealth maintains its objection to disclosure) it will be necessary to determine:

(a) whether the document or part qualifies as a 'Cabinet document' such that there is a public interest in preserving its confidentiality or secrecy regardless of its contents;

(b) if not, whether its contents are such that there is a public interest in preserving their confidentiality or secrecy; and

(c) in either case, whether there is a competing public interest in allowing disclosure of the document to Kamasaee because of its forensic relevance to the case; and

(d) if so, having regard to all relevant considerations including those listed in s 130(5) of the Evidence Act, whether the public interest in preserving confidentiality outweighs the public interest in the disclosure.

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

This document is a submission to the Minister for Immigration and Border Protection describing a range of policy options for the management of health issues at the offshore processing centres. In my view it is a Category 2 document. A claim of partial PII is made over A.100.310.4774 (paragraph 20) and A.100.3010.4775 (Financial/Systems/Legislation implications). These two parts of the document contain material that provides policy options for the Minister's consideration. Once the Minister's views were obtained, a submission to Cabinet was drafted incorporating those views. This deliberative material is subject to a PII claim as it would disclose policy options either considered by the Cabinet or prepared for possible consideration by the Cabinet. The PII Cabinet claim relating to paragraph 6 of page 1 (A.100.3 010.4710) of this document is not pressed.

25 This is a Category 2 document, namely a document said to reveal the contents of a document to be submitted to and considered by the Cabinet and its committees, including attachments which describe NPPs and their precursors.

26 The document runs for 11 pages. The Commonwealth makes a partial claim only in respect of it. That is, it seeks to protect paragraph 20 appearing on page 5 and a half page block appearing on page 6. As previously mentioned, document 4770 is exactly the same as document 8030 and 8041 so a decision on this document determines all three.

Does the document qualify for protection as a Cabinet document?

27 I will not repeat this for each further document discussed hereafter, but in each case this question in substance asks whether the document has sufficient connection with or proximity to actual Cabinet deliberations which, having regard to the rationale for the immunity, prima facie attracts protection from disclosure whatever its content. The relevant rationale for the immunity is to ensure that decision making and policy development by Cabinet is uninhibited.

28 Having regard to the evidence and to that guiding principle, in my view document 4770 does qualify as a Cabinet document. I will briefly explain my reasons.

29 Mr Taloni has explained that the document in general, and the two redacted passages in particular, explicitly refer to 'the forthcoming Cabinet submission'. He gives evidence that the content of paragraph 20 on page 5 would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet because it discusses the topics that are included in the forthcoming Cabinet submission. In redacted portions of his affidavit he goes on to explain what those topics are. He also gives detail to justify his assertion that the redacted material on page 5, if disclosed, would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet. That, together with other information I have not explicitly described, comfortably satisfies me that the nature of this document, and in particular the redacted paragraphs, fall squarely within the process described by Mr Taloni for developing a draft submission for Cabinet.

30 Kamasaee has pointed to a lack of various security markings on the document. But I accept the Commonwealth's submission that such lack is not determinative and that I should be more concerned with substance rather than form. I reject Kamasaee's argument that this document does not seem to fit within the definition of a Cabinet document as described in the Cabinet Handbook.[7] In fact, it would meet the description at paragraph 115(c) of the Handbook, namely documents 'prepared by departments to brief their ministers on matters proposed for Cabinet consideration'.

31 Another argument raised by Kamasaee was that other, disclosed documents have already revealed the substance of what Kamasaee assumes is contained in paragraph 20 of the document, namely 'a conclusion to the risks and infrastructure requirements identified'. Having read the redacted portion of the text myself (as I considered I should do in the circumstances), I accept the Commonwealth's submission that the plaintiff's speculation about what the redacted information reveals does not capture the entirety of the information redacted at paragraph 20 and is wrong in respect of the information redacted on page 6.

32 The critical debate, especially in relation to paragraph 20, was whether the revelation of a 'topic' to be discussed by Cabinet, described at a relatively high level of generality, could ever have such inhibitory effect on policy development as to justify its protection in the public interest. The Commonwealth's response was that disclosure of the very fact that the Cabinet considered or did not consider a topic of particular controversy (for example, 'whether to continue offshore processing') could itself inhibit free and vigorous exchange of views upon controversial paths. I accept that may be so. In any event, again having seen the redacted portions of the text I consider that it contains sufficient detail concerning the topics to be discussed to give rise to the very risk to which the Commonwealth has alluded.

33 Where the topic concerns a subject of special political currency and significance in domestic and international affairs, it is not difficult to understand why the mere disclosure of the fact that the topic, expressed even in the most general terms, has been or is to be discussed at the highest level of Australian decision making could be extremely sensitive. And, being so sensitive, it is also readily apparent why the very threat of disclosure could have an inhibitory effect on frank discussion. In this respect, the evidence of Dr Parkinson about Cabinet deliberations or decisions on Australia's policies on border protection is particularly pertinent. He said:

This subject continues to remain at the forefront of Australian policy development and political debate and Australia's standing in the international community. The release of documents relating to relatively recent Cabinet deliberations in relation to this issue would, in my view, have a particularly chilling effect on the ability of Cabinet meetings to provide a forum in which a comprehensive and candid discussion by Ministers could take place.[8]

34 Finally, in Kamasaee's first written submission he submitted that the sensitivity of this document was called into question by the number of other identical documents which managed to get through the screening process and not be identified as requiring PII protection. I have already dealt with this argument in an earlier ruling.[9] As I there explained, I prefer to rely upon the direct evidence from a highly qualified deponent rather than inferences from the fact that claims were not made by persons with inferior knowledge and experience.

Is there a competing public interest in disclosure and, if so, which public interest predominates?

35 I begin with the proposition that in respect of a document meriting PII protection as a member of the 'Cabinet document' class, it is only in an exceptional case, where the material in the document is crucial to the proper determination of the proceeding, that the public interest in the administration of justice will outweigh the public interest in preserving its confidentiality.[10]

36 I do take into account that this document does not itself record Cabinet deliberations. But, in my judgment, it would enable reliable inferences to be drawn about the subject matter and timing of Cabinet discussions. And, being of that nature, disclosure of it is apt to inhibit the free exchange of communication in the process of evolving Cabinet submissions in a way that would be inimical to the public interest in the proper functioning of the Commonwealth government.

37 So, having regard to the factors in s 130(5) of the Evidence Act, by definition and without even considering the contents of the document, it is clear that the information in it is important to the public interest because it represents consideration of high level government policy. Having actually viewed the material itself, I am fortified in that opinion. The likely effect of the disclosure of the material to the plaintiff for use in evidence would be to cause those involved in policy development to adopt less transparent methods of communication or recording information. That would be a retrograde step.

38 Without having seen the text which has been redacted on pages 5 and 6 of the document, Kamasaee has ventured to suggest that it is likely to have the following relevance for the purpose of his proceeding:

Relevance: It is apparent on the face of the documents that the submission concerns the standard of medical care available at (relevantly) the Manus Centre, medical issues present or prevalent in the Detainee cohort there, and "measures to mitigate risks" and "additional healthcare needs", including specifically in relation to pregnant women and young children, those with mental healthcare needs, and secondary care provision at the Pacific International Private Hospital in Port Moresby. These issues directly relate to matters concerning healthcare and detainee vulnerabilities raised in the pleadings, as well as issues relating to the Commonwealth's control or management of these matters, and appear to be relevant to the Commonwealth's knowledge of risks, and steps taken to ameliorate them, in this regard.

39 The Commonwealth's submission, expressed only generally in relation to document 4770 along with a number of other documents, is that any forensic relevance these two passages have could only be described as relevance 'at a high level'.

40 As is appropriate to do so at this stage of the analysis, I have read the redacted portions of document 4770 in the context of the whole. I have also had regard to the issues that Kamasaee has identified as being issues to which information contained in this document may be relevant. The issues in this proceeding were summarised at [15]-[17] of Ruling No 4.

41 The document as a whole contains a considerable amount of information about the existing healthcare facilities at Australia's offshore processing centres at both Nauru and Manus Island. It discusses some deficiencies and needs, measures that could be implemented to meet some of those needs and some issues of policy that would need to be balanced against implementing those measures.

42 Doubtless, documents such as this can be used to demonstrate the Commonwealth's knowledge, if that is relevant, of the situation with respect to healthcare and of possible measures it could take. What measures the Commonwealth did or did not take in response to the situation as described in the document can, I believe, be gauged from other records.

43 It seems to me that what is most relevant for Kamasaee is what action the Commonwealth did or did not take, in view of the known circumstances and having regard to whatever duty it may have had to act or to not act. What appears to be of less relevance to the success or failure of Kamasaee's action are the steps taken between knowledge and action, that is, the process of decision making toward the action. Kamasaee's claim is not likely to be much affected by any self-justification, or lack of it, on the part of the Commonwealth if the Commonwealth had a duty to act but yet did not do so.

44 As I said, the portions of text to which objection is taken centre on the process of decision making. That, of course, is also the reason why those portions of text deserve protection from disclosure in the public interest.

45 It is my opinion that the public interest in disclosure for the purpose of the administration of justice, in the case of the redacted portions of this document, is relatively modest. That interest does not outweigh the more substantial public interest in preserving the confidentiality of those parts.

46 Accordingly, I uphold the Commonwealth's objections in respect of the two portions of document 4770 and its cognate documents 8030 and 8041.

47 Document 2046 is titled 'Offshore Processing Programme - Programme Board Minutes Meeting 4'. Mr Fox describes document 2046 as follows:

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

48 Document 2046 is a Category 2 document meaning that it is said to be a document which reveals the contents of another document to be submitted to and considered by the Cabinet and its committees, including attachments describing NPPs and their precursors.

49 Document 2046 contains some 25 pages running between A.100.3015.2046 through to A.100.3015.2071. The first page is the agenda for a meeting of the Offshore Processing Programme Board for 17 September 2014, apparently Meeting 4. As the agenda reveals it contains minutes of the previous meeting (Meeting 3) and lists various matters to be discussed. Agenda item 7 is titled 'NPP Post Refugee Status Determination outcomes'. The five pages relating to agenda item 7 commence at A.100.3015.2067 and run through to A.100.3015.2071 (being numbered pages 26-30).

50 Although it was not necessarily clear beforehand, the Commonwealth has confirmed that it only claims Cabinet PII immunity over the pages relating to agenda item 7. Its claims for protection over other parts of the document are based upon foreign relations sensitivity.

Does the document qualify for protection as a Cabinet document?

51 Mr Taloni has given further evidence about the substantive discussion of agenda item 7 in document 2046. He maintains that disclosure of this agenda item would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet and the timing of such Cabinet discussions. He gives reasons for that opinion which are, in part, redacted from view by Kamasaee, although I have read them. In its submissions dated 2 September 2016, the Commonwealth summarises its claim about this document in these terms:

A part PII claim is made over material in this document that discloses the topic and content, of a proposed NPP and when the matter was intended to be presented to Cabinet. As explained above ... NPPs are prepared during the policy development stage of the Cabinet process before being circulated at the draft stage with Cabinet submissions. Mr Taloni has given evidence about the subsequent development and Cabinet consideration of that NPP. Mr Taloni's evidence is that disclosure of the redacted material would allow reliable inferences to be drawn about the subject matter of the discussions by Cabinet and about the timing of such Cabinet discussions.

52 Having read Mr Taloni's affidavit, and in particular parts which are not visible to Kamasaee, I can say that the Commonwealth has accurately recorded that Mr Taloni gave evidence about the subsequent development and Cabinet consideration of the NPP.

53 Kamasaee has argued that another document - A.100.3015.2033, which is an open document - has already disclosed the details of the Programme Board's discussions regarding a 'post RSD assessment NPP', and its funding requirements, as foreshadowed by agenda item 7. Document 2033 is the minutes of Meeting 4 and has been exhibited to an affidavit affirmed by Mr Baker.

54 In response, the Commonwealth submits that Kamasaee's speculation that the redacted text in agenda item 7 is openly available in other documents (including document 2033) is wrong.

55 In my view, the substance of agenda item 7 in document 2046 clearly lies on the evolutionary path towards a submission to Cabinet. As the description of the agenda item itself announces, it concerns a potential new policy proposal for submission to Cabinet. The minutes of the 14 September meeting (document 2033) only contains a short paragraph confirming that the discussion of the agenda item did concern 'the development of a post RSD assessment NPP'. So, there is no doubt about the subject matter of the agenda item itself.

56 However, I agree with the Commonwealth's submission that the content of document 2046 from page 26 onwards is far more detailed than what is revealed in the minutes or any other parts of document 2046. Disclosure of the information in agenda item 7 would involve reliable inferences to be drawn about the subject matter of discussions (or possible discussions) by Cabinet.

57 I say 'or possible discussions' by Cabinet because I have previously decided that it is unnecessary for the Commonwealth to establish that the contents of a submission or document, or the information contained in it, that had been prepared with the intention that it be submitted to Cabinet, was in fact discussed in Cabinet.[11] Having said that, Mr Taloni's evidence about the destiny of the proposal evidenced in agenda item 7 leaves me in no doubt that this portion of document 2046 qualifies for immunity as a member of the Cabinet document class.

Is there a competing public interest in disclosure and, if so, which public interest predominates?

58 Again, I take into account that this document does not itself record Cabinet deliberations. But, in my judgment, it would enable reliable inferences to be drawn about the subject matter and timing of Cabinet discussions. And, being of that nature, disclosure of it is apt to inhibit the free exchange of communication in the process of evolving Cabinet submissions in a way that would be inimical to the public interest in the proper functioning of the Commonwealth government.

59 So, having regard to the factors in s 130(5) of the Evidence Act, by definition and without even considering the contents of the document, it is clear that the information in it is important to the public interest because it represents consideration of high level government policy. Having actually viewed the material itself, I am fortified in that opinion. The likely effect of the disclosure of the material to the plaintiff for use in evidence would be to cause those involved in policy development to adopt less transparent methods of communication or recording information. That would be a retrograde step.

60 Against that, without having seen the relevant content, Kamasaee argues that:

On its face, the document appears to record the contents of a meeting attended by a number of senior Commonwealth officials, and discusses issues concerning risks identified regarding the offshore processing program and the Manus Centre, the status of settlement and RSD processes, amenities at the Centre, infrastructure works at Manus, medical transfers (and making efforts to "minimise unnecessary medical evacuations"), and other 'Manus operations'. Given the source of the document and the Programme Board's broad oversight role, this material appears likely to be directly relevant to the question of the Commonwealth's control of matters at the Centre, as well as issues concerning RSDs, medical transfers and infrastructure raised in the pleading.

61 I am satisfied that the contents of agenda item 7 are relevant to a number of issues in this proceeding. Those contents may have particular relevance to issues of the Commonwealth's alleged control of the Centre, the process of making refugee status determinations, the facilities and resources for post-refugee status determinations and, possibly, the length of detention. But, I am not satisfied that having regard to other sources of information and facts known about the Commonwealth's acts and omissions to act concerning these matters, that this material is crucial to Kamasaee's proceeding. In other words, I do not see this as falling within the sort of exceptional case which would justify disclosure of material that falls into the Cabinet document class.

62 It follows that the public interest in preserving the confidentiality and secrecy of the contents of agenda item 7 in document 2046 outweighs the public interest in the disclosure of it for the purpose of this proceeding. The Commonwealth's objection is upheld.

63 Document 0669 is titled 'Manus Capital Profile'. Mr Fox describes document 0669 as follows:

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

64 Being a Category 4 document it is a document which is alleged to have been prepared by the Department of Immigration and Border Protection (DIBP) in order to inform and support Cabinet decision making.

65 The document is an email from the officer of the Department of Finance to an officer of the Department of Immigration and Citizenship (as DIBP was then called). It is dated 13 February 2013 and is a single page. The Commonwealth claims protection over the whole of the document.

Does the document qualify for protection as a Cabinet document?

66 The Commonwealth summarises its claim over this document in these terms:

A full PII claim is made over this document because it discloses the subject matter and content of a draft NPP. Mr Taloni has given evidence that the document was prepared when the NPP was in the exposure draft stage. ... Mr Taloni has also given evidence about the subsequent development and Cabinet consideration of the NPP. Mr Taloni's evidence is that disclosure of the document would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet.

67 I consider that the Commonwealth's summary is generally accurate, although it is not explicitly apparent from Mr Taloni's evidence that the document was prepared when the NPP was 'in the exposure draft stage'; that may be apparent by implication.

68 Having read Mr Taloni's evidence, including those parts which are not visible to Kamasaee, I am satisfied that the ultimate destiny of this material means that it has quite a direct connection with material that was ultimately put before Cabinet. Having also viewed the document, which I considered appropriate to do, I am also satisfied that it contains quite detailed, specific proposals of a financial nature. Also, as the Commonwealth's reply submission correctly indicates, document 0669 is marked 'protected: Sensitive: Cabinet' and it is evidence that it was transmitted through the encrypted Cabinet network referred to at [120] of the Cabinet Handbook.

69 Despite it being my view that not every document conforming to the description of a Category 4 document would, for that reason alone, merit the description of a 'Cabinet document' deserving of class protection, in this particular case I believe it does.

Is there a competing public interest in disclosure and, if so, which public interest predominates?

70 Again, I take into account that this document does not itself record Cabinet deliberations. But, in my judgment, it would enable reliable inferences to be drawn about the subject matter and timing of Cabinet discussions. And, being of that nature, disclosure of it is apt to inhibit the free exchange of communication in the process of evolving Cabinet submissions in a way that would be inimical to the public interest in the proper functioning of the Commonwealth government.

71 Having regard to the factors in s 130(5) of the Evidence Act, by definition and without even considering the contents of the document, it is clear that the information in it is important to the public interest because it represents consideration of high level government policy. Having actually viewed the material itself, I am fortified in that opinion. The likely effect of the disclosure of the material to the plaintiff for use in evidence would be to cause those involved in policy development to adopt less transparent methods of communication or recording information. That would be a retrograde step.

72 Against that, without having seen the relevant context, Kamasaee argues that:

The Commonwealth states that it agreed to bear all costs in relation to its Memorandum of Understanding with PNG concerning the offshore processing arrangements. This document therefore appears likely to contain information relevant to the Commonwealth's intentions or plans to implement the Memorandum of Understanding and develop or improve the Centre or related facilities. It may be relevant to the question of the Commonwealth's management or control of the Centre, or its knowledge of the Centre's conditions (as pleaded) and/or plans to alter those conditions.

73 Having viewed the document and the information contained in it, it does appear to me to have relevance at a high level of generality of the kind speculated by Kamasaee. The nature of the information can be inferred from what Mr Taloni says at paragraph 83 of his affidavit, namely that departments are required to settle the costs of their NPPs with the Department of Finance before it submits an NPP to the ERC. But the specifics of this particular document are not likely to provide Kamasaee with the kind of crucial evidence for his proceeding that would justify disclosure of its contents having regard to the public interest in preserving its confidentiality and secrecy.

75 Document 0477 is titled 'Offshore Infrastructure Branch - Post Settlement/Assessment NPP'. Mr Fox describes document 0477 as follows:

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

76 This is alleged to be a Category 4 document, namely a document prepared by the DIBP in order to inform and support Cabinet decision making.

77 The document is a spreadsheet which was created by officers of DIBP. It shows where capital expenditure funding was needed for infrastructure at the Manus Centre. It was drafted in approximately November 2014. In its printed form it runs to just over five A3 sheets.

78 The Commonwealth claims PII in respect of the full document.

Does the document qualify for protection as a Cabinet document?

79 The Commonwealth summarises its claim over this document in the following terms:

A full PII claim is made over this document because it discloses material that was included in a NPP. Mr Taloni has given evidence about Cabinet consideration of the NPP. Mr Taloni's evidence is that disclosure of the document would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet.

80 In its reply submission, the Commonwealth submits that it is evident from Mr Taloni's confidential evidence that the document was created 'for the purpose of preparing a submission to Cabinet'. I am not satisfied that that is necessarily the import of Mr Taloni's evidence.

81 In my view, it is not made explicitly clear what was the purpose of the preparation of this spreadsheet other than to demonstrate where capital expenditure funding was needed for infrastructure at the Manus Centre. Whether or not the particular information or any aspect of it, made its way into an NPP may be of interest, but if it were not prepared explicitly as part of the evolutionary process for a Cabinet submission in my view it lacks sufficient connection with or proximity to actual Cabinet deliberations which, having regard to the rationale for the immunity, prima facie attracts protection from disclosure whatever its content.

82 In my view, it does not qualify for immunity as a member of the Cabinet class of documents. It then becomes a question of whether the contents of this document are such that there is a public interest in preserving its confidentiality and secrecy. Little particular information is given about this other than the evidence of Mr Taloni and Mr Fox that disclosure of it would allow reliable inferences to be drawn about the subject matter of discussions by Cabinet.

83 I accept the evidence of Mr Fox and Mr Taloni (supported also by Dr Parkinson) that a document of this general character may allow inferences to be drawn about the subject matter of discussions by Cabinet. I will therefore accept that it at least attracts the public interest in its confidentiality sufficient to raise the question whether it is outweighed by the public interest in its disclosure because of the evidentiary value it may contain.

Is there a competing public interest in disclosure and, if so, which public interest predominates?

84 I bear in mind again the issues in this proceeding as summarised at [15]-[17] of Ruling No 4. Without having seen the document, Kamasaee argues that because the negligence claim period in the class action ceases in December 2014, this document may be important to Kamasaee's case because it involves an analysis, as at November 2014, of the funding requirements for infrastructure at the Manus Centre. He argues that it would appear that such funding requirements would or may highlight the extent of the infrastructure deficiencies at the Manus Centre at the time. Such deficiencies form part of the foundation for his claim. Additionally, the analysis of funding requirements may be relevant to the issue of effective control by the Commonwealth at the Manus Centre.

85 I have viewed the document. I agree that it may have the forensic significance that Kamasaee contemplates. It is quite detailed and provides specific information under a number of headings concerning the sufficiency or otherwise of facilities, costs and risks associated with those facilities. In my view, this document appears to have quite important forensic value to the plaintiff's case.

86 I conclude I should make this document available to the plaintiff for inspection. I think the contents of it and its likely importance to the plaintiff's case justify him seeing it and, if thought appropriate, using it in evidence. Rather than subject it to some sort of limited access regime, I am more inclined to leave it to the Commonwealth to make whatever application it wishes to make at the time of trial to limit its publication to the wider world.

87 I therefore reject the Commonwealth's objection and will order that it be disclosed to the plaintiff for inspection.

88 In summary, my rulings in respect of these six documents can be represented as follows:

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

20131121 - Managing Health Issues at OPCs DEP SEC SIGNED [this is the same as 4770]

20131121 - Managing Health Issues at OPCs DEP SEC SIGNED [this is the same as 4770]

Offshore Processing Programme - Programme Board Minutes Meeting 4

Offshore Infrastructure Branch - Post Settlement/Assessment NPP

89 I will make orders accordingly. The parties have agreed that I should not make any orders as to costs until all rulings have been complete and further submissions can be addressed to that topic.

[1] Kamasaee v Commonwealth of Australia (No 3) (Cabinet document: further evidence ruling) [2016] VSC 438 ('Ruling No 3'); Kamasaee v Commonwealth of Australia (No 4) (PII - Sample foreign relations claims) [2016] VSC 492 ('Ruling No 4').

[2] Evidence Act s 130(4)(a).

[3] Ibid s 130(4)(f).

[4] Affidavit of Bruce Taloni affirmed 16 August 2016.

[5] Affidavits of Andrew Baker sworn 30 August 2016 and 5 September 2016.

[6] Ruling No 4 [2016] VSC 492 [5]-[13]; Ruling No 3 [2016] VSC 438 [6]-[10], [28]-[29],[46], [51]-[52].

[7] Exhibit BT-1 to the affidavit of Bruce Taloni affirmed 16 August 2016.

[8] Affidavit of Dr Martin Parkinson affirmed 14 June 2016, [30]-[31].

[9] Ruling No 4 [2016] VSC 492 [52]-[53].

[10] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 619.

[11] Ruling No 3 [2016] VSC 438 [31]-[52].