Plaintiff v Defendants

1 The plaintiff, Mr Majid Kamasaee (Kamasaee), brings this action on his own behalf and on behalf of other persons detained on Manus Island, Papua New Guinea. The Commonwealth is sued for damages for allegedly breaching duties of care owed to those detainees. Damages are sought by the plaintiff for alleged physical and psychological harm.

2 This is the fourth 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 PII objection is found in s 130 of the Evidence Act 2008 (Vic), although, in relation to a small number of the documents the subject of this ruling, the Commonwealth primarily relies upon the International Organisations (Privileges & Immunities) (International Committee of the Red Cross) Regulation 2013 (Cth) ('ICRC Regulation'). For those documents the Commonwealth only relies upon the Evidence Act provision in the alternative.

3 For convenience, the Commonwealth's PII objections have been divided into two categories, each differentiated by reference to the particular ground relied upon by the Commonwealth for alleging that the document 'relates to matters of state'. This particular ruling concerns the category described as 'foreign relations and ICRC documents' which are alleged to relate to matters of state because the disclosure of them would 'prejudice the security, defence and international relations of Australia'.[2]

4 This ruling follows on from Ruling No 4.[3] By that ruling, I made determinations in respect of 11 documents which had been selected by the parties as samples of certain sub-categories of the wider class of disputed documents. Although the original sample group included three ICRC documents, by the time of the hearing the parties had resolved their differences about those particular documents. So, it was not necessary to determine objections in relation to any ICRC document and, as a result, certain disputes on points of principle in relation to the construction and application of the ICRC Regulation did not need to be resolved. However, it will be necessary to resolve those disputes in this ruling.

5 Following delivery of Ruling No 4 the parties continued to discuss and resolve many more of the Commonwealth's objections to disclosure. A very pleasing result of the whole process, which began several months ago, is that what started off as a dispute over many hundreds of documents in this category has now been reduced to a dispute over only 29 documents.

6 All are claimed to be documents the disclosure of which would prejudice the security, defence and international relations of Australia. But eight of those ('the ICRC documents') are also said to contain information that is confidential to the ICRC. For convenience, the documents which are not ICRC documents will be referred to as the 'foreign relations documents'.

7 I will deal with the foreign relations documents first and then turn to the ICRC documents.

8 The 21 foreign relations documents are listed in the table below:

PNG: Manus: Deteriorating security situation requires guidelines be developed for police intervention

PNG: Manus: Visit by PNG Foreign Minister and Attorney-General

PNG: Manus: PNG Cabinet to consider constitutional amendment to section 42

PNG: Manus: PNG's Refugee Status Determination provisions

PNG: Manus: New regulations - Compliance with Refugees Convention and Obligations

PNG: Visit by Shadow Immigration Minister Marles on 11 March 2014

PNG: Manus: PNG Barati Investigation: Second Arrest

RE: Request for input - bilateral meeting brief for PM's visit to PNG and discussions with PM O'Neill [SEC=In-Confidence:DIAC]

Summary of discussions with PNG [SEC=UNCLASSIFIED]

Managing Public Order and Negative Transferee behaviour in the Regional Processing Centres (RPC) at Nauru and Manus Island (Papua New Guinea) Sub - behaviour management in RPCs - cleared by JM

9 Evidence in relation to the foreign relations documents was given on behalf of the Commonwealth in two affidavits affirmed by Daniel Sloper.[4]

10 In Ruling No 4 I set out Mr Sloper's experience and qualification, as detailed in his first affidavit, and summarised the substance of his evidence giving the context against which he then expressed opinions about the particular national sensitivity of individual documents.[5] I reiterate here my views expressed in Ruling No 4[6] that Mr Sloper's views should be accorded significant weight.

11 In his second affidavit, Mr Sloper provided additional evidence in respect of the nature of diplomatic cables to support the proposition that the disclosure of the information in the diplomatic cables identified in the schedule would be contrary to the public interest.

12 He also provided additional evidence about the importance of preserving open lines of communication between governments by honouring the confidentiality of exchanges, particularly those conducted at a high level. He also differentiated between those exchanges which typically are expected to be kept confidential from those that are not. Further he detailed two adverse consequences likely to flow from the failure to maintain the confidentiality of those communications which foreign governments expect will be observed.

13 Finally, he provided evidence (redacted) relevant to one particular matter that has peculiar sensitivity and currency.

14 Crucially, Mr Sloper's second affidavit also exhibits a schedule (DS-2) in which he addresses each of the 21 documents by reference to its identification number, title and status of claim (ie full or partial) as set out in the table above, but also adds an explanation of why the document is sensitive so as to give rise to the PII or limited access claim.

15 The notion of a limited access claim is explained in Ruling No 4.[7] Essentially, they are claims in respect of which the Commonwealth accepts that the risk of harm to the national interest can be adequately controlled by permitting disclosure of the document (or relevant part) only to nominated representatives of the plaintiff (under defined conditions). Other than limited access claims, the Commonwealth's PII claims amount to an objection to the disclosure of the document or part to any person.

16 Subject to one matter I am about to mention, the terms of the regime that will apply to any document to be the subject of a limited access order are, in substance, set out in schedule B to Ruling No 4. The parties have agreed to one modification, to paragraph 8 (closed court hearings), but remain in dispute about the scope of the individuals who can access the documents on behalf of Kamasaee. I will deal with that issue towards the end of this ruling.

17 In line with orders I made with the consent of the parties, parts of the affidavits of Mr Sloper and of the Schedule in which he explains the sensitivity of each document have been redacted and, accordingly, are not visible to Kamasaee. Nevertheless, I have viewed the un-redacted affidavit and Schedule. Similarly, for the purpose of being able to rule on the objections, I was provided with a copy of each document without redactions whereas Kamasaee has only viewed redacted versions. Necessarily, therefore, Kamasaee's submissions have had to be made relying to a significant degree on context, inference and some speculation.

18 Other than the Commonwealth's evidence, Kamasaee also filed an affidavit affirmed by his solicitor, Andrew Baker.[8] Mr Baker draws attention to openly discovered documents and some media reports which Kamasaee submits ought to be considered when assessing the claimed sensitivity of the 21 foreign relations documents.

19 In addition to the evidence, each party filed written submissions that address each document in turn both as to its national sensitivity and its forensic relevance.

20 In Ruling No 4 I provided extensive analysis of each of the 11 sample documents to demonstrate the reasoning process I believe should be applied when determining whether any given document is to be immune from disclosure by reason of PII. I do not consider it necessary to provide the same detailed analysis or reasoning for my determinations in respect of each of the 21 foreign relations documents that are now under consideration. But, in approaching each of the documents in this ruling I have used the same reasoning process employed in Ruling No 4. After reading and considering the evidence and submissions in respect of each document, I will simply state conclusions in relation to each of the following:

(a) whether there is a public interest in preserving secrecy or confidentiality in relation to the information or document due to the risk[9] that disclosure of it would prejudice the security, defence or international relations of Australia (abbreviated as 'national sensitivity');

(b) the degree of any such national sensitivity (ie high/moderate/low);

(c) whether there is a public interest in disclosing the information or document to Kamasaee because of its relevance to the proceeding (abbreviated as 'evidentiary relevance');

(d) the degree of any such evidentiary relevance (ie high/moderate/low); and

(e) which public interest predominates (abbreviated as 'outcome' - either 'upheld full', 'upheld limited access' or 'dismissed', meaning that the document or information is to be disclosed).

21 Generally, the claims for PII are 'contents' claims as opposed to 'class' claims.[10] If, however, I consider that a document merits PII protection as a member of a class, I will say so. Documents properly described as diplomatic cables would prima facie attract protection as members of a class.[11] To outweigh such public interest in preserving confidentiality and justify its disclosure, even under a limited access regime (which the Commonwealth does not proffer in the case of such documents), would, in my judgment, require the presence of information of crucial importance to the plaintiff's case.[12]

22 I have viewed each document to form my opinion both as to national sensitivity and evidentiary relevance, and to balance the two public interests (where required).

1. PM17343H - PNG: Manus Processing Centre: The Way Forward

24 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[13] - inspection of its contents confirms that conclusion

Upheld full - public interest in confidentiality clearly outweighs any public interest in disclosure (on any terms).

25 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

2. PM17500H - PNG: Manus: Deteriorating security situation requires guidelines be developed for police intervention

26 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: Deteriorating security situation requires guidelines be developed for police intervention

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[14] - inspection of its contents confirms that conclusion

Upheld limited access - although the Commonwealth seeks full PII protection, the likely forensic importance of this document means that the public interest in its disclosure is such that, providing the document is only made available to the plaintiff pursuant to the limited access regime, it ought to be disclosed.

27 In the result, the Commonwealth's objection is upheld to the extent that the document may only be disclosed under the limited access regime.

3. PM625205L - PNG: Manus: Visit by PNG Foreign Minister and Attorney-General

28 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: Visit by PNG Foreign Minister and Attorney-General

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[15] - inspection of its contents confirms that conclusion

Upheld full - although similar to document PM17500H, the evidence discloses that the contents of this document give rise to additional grounds of sensitivity - in my view, it has less evidentiary value than PM17500H and does not amount to an exceptional case warranting disclosure. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

29 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

4. PM17525H - PNG: Manus: PNG Cabinet to consider constitutional amendment to section 42

30 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: PNG Cabinet to consider constitutional amendment to section 42

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[16] - inspection of its contents confirms that conclusion

Upheld full - the evidence discloses that this cable has a very high degree of sensitivity. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

31 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

5. PM17533H - PNG: Manus: PNG's Refugee Status Determination provisions

32 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: PNG's Refugee Status Determination provisions

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[17] - inspection of its contents confirms that conclusion

Upheld full - the evidence discloses that this cable has a very high degree of sensitivity. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

33 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

6. RG17628H - PNG: Manus: New regulations - Compliance with Refugees Convention and Obligations

34 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: New regulations - Compliance with Refugees Convention and Obligations

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[18] - inspection of its contents confirms that conclusion

Upheld full - the evidence discloses that this cable has a very high degree of sensitivity. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

35 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

7. PM18083H - PNG: Visit by Shadow Immigration Minister Marles on 11 March 2014

36 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Visit by Shadow Immigration Minister Marles on 11 March 2014

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[19] - inspection of its contents confirms that conclusion

Upheld full - public interest in confidentiality clearly outweighs any public interest in disclosure (on any terms).

37 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

8. PM18164H - PNG Manus: Cornall Review: Visit by Robert Cornall

38 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG Manus: Cornall Review: Visit by Robert Cornall

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[20] - inspection of its contents confirms that conclusion

Upheld full - the evidence discloses that this cable has a very high degree of sensitivity. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

39 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

9. PM18202H - PNG: Manus: Investigations by PNG police - update

40 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: Investigations by PNG police - update

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[21] - inspection of its contents confirms that conclusion

Upheld full - the evidence discloses that this cable has a very high degree of sensitivity. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

41 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

10. PM18311H - PNG: Manus: PNG Barati Investigation: Update

42 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[22] - inspection of its contents confirms that conclusion

Upheld full - the evidence discloses that this cable has a high degree of sensitivity. The public interest in confidentiality outweighs the public interest in disclosure (on any terms).

43 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

11. PM18315H - PNG: Manus: PNG Barati Investigation: Arrest

44 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[23] - inspection of its contents confirms that conclusion

Upheld limited access - although the Commonwealth seeks full PII protection, the likely forensic importance of this document means that the public interest in its disclosure is such that, providing the document is only made available to the plaintiff pursuant to the limited access regime, it ought to be disclosed.

45 In the result, the Commonwealth's objection is upheld to the extent that the document may only be disclosed under the limited access regime.

12. PM18372H - PNG: Manus: PNG Barati Investigation: Second Arrest

46 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

PNG: Manus: PNG Barati Investigation: Second Arrest

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[24] - inspection of its contents confirms that conclusion

Upheld full - public interest in confidentiality clearly outweighs any public interest in disclosure (on any terms).

47 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

13. PM18438H - PNG: Manus: PNG Barati Investigation: update

48 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Yes - as a diplomatic cable, it prima facie attracts protection on a class basis[25] - inspection of its contents confirms that conclusion

Upheld full - public interest in confidentiality clearly outweighs any public interest in disclosure (on any terms).

49 In the result, the Commonwealth's objection is upheld and the document is not to be disclosed.

14. A.100.2013.0011 - RE: Request for input - bilateral meeting brief for PM's visit to PNG and discussions with PM O'Neill [SEC=In-Confidence:DIAC]

50 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

RE: Request for input - bilateral meeting brief for PM's visit to PNG and discussions with PM O'Neill [SEC=In-Confidence:DIAC]

51 In the result, the Commonwealth's objection is upheld to the extent that the document may only be disclosed under the limited access regime.

15. A.100.2023.0629 - FW_ Agwi's reply [SEC=UNCLASSIFIED]

52 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Upheld limited access - although the Commonwealth seeks full PII protection, the likely forensic importance of this document means that the public interest in its disclosure is such that, providing the document is only made available to the plaintiff pursuant to the limited access regime, it ought to be disclosed.

53 In the result, the Commonwealth's objection is upheld to the extent that the document may only be disclosed under the limited access regime.

16. A.100.2023.1281 - Summary of discussions with PNG [SEC=UNCLASSIFIED]

54 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Summary of discussions with PNG [SEC=UNCLASSIFIED]

55 In the result, the Commonwealth's objection is upheld to the extent that the document may only be disclosed under the limited access regime.

17. A.100.3010.8441 - Managing Public Order and Negative Transferee behaviour in the Regional Processing Centres (RPC) at Nauru and Manus Island (Papua New Guinea) Sub - behaviour management in RPCs - cleared by JM

56 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Managing Public Order and Negative Transferee behaviour in the Regional Processing Centres (RPC) at Nauru and Manus Island (Papua New Guinea) Sub - behaviour management in RPCs - cleared by JM

Upheld limited access - although the Commonwealth seeks full PII protection in respect of the redacted parts, the likely forensic importance of this document means that the public interest in its disclosure is such that, providing the relevant parts of the document are only made available to the plaintiff pursuant to the limited access regime, they ought to be disclosed.

57 In the result, the Commonwealth's objection is upheld to the extent that the relevant parts of the document may only be disclosed under the limited access regime.

18. A.100.3014.3281 - Minister's visit to Port Moresby 1-4 April 2014

58 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

Minister's visit to Port Moresby 1-4 April 2014

59 In the result, the Commonwealth's objection is upheld to the extent that the relevant part of the document may only be disclosed under the limited access regime.

19. A.100.3014.7503 - RE: Police on Manus [SEC=UNCLASSIFIED]

60 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

61 In the result, the Commonwealth's objection is upheld to the extent that the relevant parts of the document may only be disclosed under the limited access regime.

20. A.100.3015.3439 - FW: RRA - progress [DLM=For-Official-Use-Only]

62 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

FW: RRA - progress [DLM=For-Official-Use-Only]

Yes (redacted sections on .3439, .3440, .3441 and .3442)

Upheld limited access - although the Commonwealth seeks full PII protection in respect of the redacted parts, the likely forensic importance of this document means that the public interest in its disclosure is such that, providing the relevant parts of the document are only made available to the plaintiff pursuant to the limited access regime, they ought to be disclosed.

63 In the result, the Commonwealth's objection is upheld to the extent that the relevant parts of the document may only be disclosed under the limited access regime.

21. A.100.3054.5801 - FW: Site Access & PNGDF [SEC=UNCLASSIFIED]

64 Adopting the methodology set out in paragraph 20 above, my conclusions in relation to this document are as follows:

65 In the result, the Commonwealth's objection is upheld and the relevant parts of the document are not to be disclosed.

66 The eight ICRC documents are listed in the table below:

Review into the events of 16-18 February 2014 at Manus RPC - Transcripts and Meeting Notes

Review Recommendations Summary Table - Health and Welfare 29 Aug 2014 - [individual]

FW: [International Organisation] response [SEC=UNOFFICIAL]

67 Evidence in relation to the ICRC documents was given on behalf of the Commonwealth by Katrina Cooper.[26] Ms Cooper is a public servant employed as the Senior Legal Adviser of the Department of Foreign Affairs and Trade (DFAT). She has been in that role since 2013. In that position she has oversight of all international and domestic law issues for DFAT.

68 Ms Cooper was previously ambassador to Mexico (2008-2012), DFAT's domestic legal adviser (2006-2007), Counsellor in Port Moresby (2002-2005) and was engaged in other roles for DFAT going back to at least 1995.

69 In her current role, Ms Cooper manages DFAT's legal and policy advice on international humanitarian law and human rights law. She has primary carriage of all interactions between DFAT and the ICRC in respect of legal issues. Her evidence details engagements and consultations she has with a range of government departments and agencies in relation to humanitarian crises and the provision of relief.

70 In her evidence, Ms Cooper described the ICRC, its role generally and, in particular, its work on Manus Island. She also described its relationship with other societies including the Australian Red Cross ('ARC'). Her evidence also covered Australia's relationship with the ICRC.

71 From Ms Cooper's evidence it is apparent that the objective of the ICRC, founded in 1863, is to ensure protection and assistance for the victims of armed conflict (war) and other situations of violence. One of its roles is to assist detainees. It has certain formal roles under the Geneva Convention of 1949 in relation to prisoners of war and interned civilians where persons are detained by a state party to an armed conflict. But it may also undertake humanitarian initiatives in other situations. For example, it may visit persons detained on security grounds on the basis of criminal law or in connection with irregular immigration.[27] In this role, there is no international legal obligation for states to grant the ICRC access so it must negotiate the terms of any access.

72 Ms Cooper gave detailed evidence about ICRC's approach to confidentiality. She explained the importance of confidentiality to its work and the adverse effects of the unauthorised disclosure of the contents of its documents. Her evidence establishes that assurances given by the ICRC that it will maintain the confidentiality of communications between it and the relevant authorities play a crucial role in allowing it to gain access to victims of armed conflict and other situations of violence. Those assurances also facilitate dialogue with relevant authorities and protect ICRC staff and the beneficiaries of its assistance

73 Ms Cooper explained that if Australia was to disclose the contents of ICRC documents, without its authority, such disclosure could lead to less cooperation by states and non-state actors with ICRC particularly in relation to access to places of detention. In turn, that would damage Australia's relationship with the ICRC and discourage it from dealing frankly with the Australian government. It would also harm Australia's standing in ICRC forums and among other international organisations. Such a risk, she explained, could eventuate from the disclosure of a single document.

74 Legislation in Australia protects that confidentiality. By the International Organisations (Privileges and Immunities) Act 1963, the Commonwealth Governor-General is empowered to make regulations to give effect to the Act. Relevantly, s 9D(1) of that Act provides:

Privileges and immunities in respect of the International Committee of the Red Cross

(1) The regulations may confer upon:

(a) the International Committee of the Red Cross; and

(b) persons of a kind referred to in the ICRC Arrangement;

such privileges and immunities as are required to give effect to that Arrangement.

75 The ICRC Regulation[28] was made pursuant to s 9D(1). The 'Arrangement' referred to in s 9D(1) is an arrangement between the government of Australia and the ICRC made on 24 December 2005. The text of the arrangement forms schedule 1 to the ICRC Regulation.[29] It relevantly provides:

11. Confidentiality of ICRC Communications

The Government of Australia undertakes to respect the confidentiality of ICRC reports, correspondence and other communications. This includes an undertaking not to divulge their contents to persons and/or organisations other than the designated recipients and not using them in the course of legal proceedings without prior written authorisation from the ICRC.

76 Section 6 of the ICRC Regulation sets out those privileges and immunities that apply to the ICRC under Australian domestic law. Section 6(1) provides, amongst other things, that the archives and all documents held by or belonging to the ICRC are 'inviolable'.

6 Privileges and immunities

...

Privileges and immunities relating to communications

...

(13) The confidentiality of ICRC reports, correspondence and other communications must be respected, and the contents of these reports, communications and other correspondence must not be:

(a) divulged to persons or organisations other than the persons for whom they are intended; or

(b) used in the course of legal proceedings;

without prior written authorisation from the ICRC.

78 In this case, the Commonwealth objects to providing inspection of the ICRC documents on a series of alternative grounds, namely -

(a) the immunity from disclosure conferred by s 6(13) of the ICRC Regulation; or

(b) PII under s 130 of the Evidence Act on the basis of their membership of a protected class; or

(c) PII under s 130 of the Evidence Act on the basis of the sensitivity of their contents.

79 The Commonwealth maintains that to the extent any of the ICRC documents attract the immunity from disclosure under the ICRC Regulation, no balancing exercise is required to be undertaken by the court. The document is simply entitled to absolute immunity.[30] Kamasaee does not dispute that proposition. Rather, he contests the qualification of the particular documents for protection within the scope of s 6(13).

80 In addition, Kamasaee challenges the qualification of the documents for deserving any PII protection.

81 Ms Cooper refers to three species of ICRC documents:[31]

(a) The first species consists of correspondence or reports provided by the ICRC to Australia.

(b) The second species consists of documents prepared by the Australian government and third parties that summarise or report on communications and recommendations from the ICRC. They include emails, spreadsheets and records of meetings, quoting from or summarising ICRC communications and recommendations and, frequently, what Australia or other parties have done in response. The Commonwealth alleges that it would be possible to infer from these documents the content of ICRC communications. The Commonwealth submits that, by allowing inferences to be drawn about the contents of the ICRC communications, the documents clearly 'divulge' the contents of those ICRC communications within the meaning of s 6(13) of the ICRC Regulation.

(c) The third species consists of documents that identify directly or indirectly issues of interest to, or raised by, the ICRC but do not include details of specific findings or recommendations made by the ICRC. The Commonwealth submits that these documents fall within s 6(13) insofar as they 'divulge the contents of' those ICRC communications.

82 Ms Cooper also gave evidence about the specific documents the subject of this application. She has personally read all of them. In exhibit KC-8 she set out her commentary in respect of each of the eight documents (along with others that are no longer in dispute). For each she first gives a description of the nature of the document and its provenance. She then describes the nature of the redacted material and states her opinion as to whether the disclosure of that material would either:

(a) divulge the contents of an ICRC report or other communication by a direct method such as by extracting or paraphrasing those contents, or

(b) divulge the contents by recording information from which reasonable inferences could be drawn as to those contents.

83 Finally, Ms Cooper also gave evidence about the attitude of the ICRC toward the disclosure of any of the documents the subject of this application. In correspondence to DFAT about the possibility of such disclosure, the Head of the ICRC Mission ('HOM') has reiterated that confidentiality is a method of work that is essential to the ICRC's performance of its mandate. The HOM provided Ms Cooper with some guidance as to some matters about which the ICRC would not be opposed to production. Ms Cooper says she has performed her task of reviewing the documents and stating her conclusions in the light of that information.

84 Bearing in mind Ms Cooper's qualifications and experience as set out earlier, I accept that she is well qualified to give reliable evidence about the effect of the disclosure of the ICRC documents. Her evidence has not been contradicted.

85 Three issues of principle have arisen because of the different nature of the various documents over which the Commonwealth has claimed the Regulation's immunity. The first is whether, on the proper construction of s 6(13), ICRC reports, correspondence and other communications are only entitled to the immunity from disclosure if and to the extent they are first proven to be 'confidential' (the confidentiality issue).

86 The second is whether, on the proper construction of s 6(13), the immunity from disclosure of the 'contents' of the reports, communications and correspondence extends to documents created by parties other than the ICRC that disclose the substance of those contents (the secondary disclosure issue). Allied to that issue, is the question of how direct must that disclosure be in order to maintain the immunity.

87 The third issue is whether, on the proper construction of the ICRC Regulation, the immunity from disclosure of the contents extends to a third party, in this case the Australian Red Cross ('ARC'), when performing functions in conjunction with the ICRC (the ARC issue).

88 The principles applicable to the task of statutory construction are well settled. They were recently recapitulated in this way:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[32]

89 Kamasaee submits that the implicit premise of the ICRC Regulation is that, to attract the immunity, the ICRC information must actually be confidential to begin with. To the extent the information is otherwise available (including the fact of the ICRC's involvement or association with that information), the Regulation ought not to apply because, Kamasaee submits, it has no work to do. That is, if it is not in fact confidential, the protective provisions simply do not apply. So, Kamasaee has submitted, the Commonwealth must establish the confidentiality of the relevant communication for it to be protected under the Regulation.

90 Kamasaee also submitted that the Regulation should not be interpreted so as to protect the information about the fact of a visit to the Centre by the ICRC because that fact necessarily would have involved or come to the attention of a number of separate organisations or entities, many of which are non-state parties. On the other hand, direct communications from the ICRC concerning or resulting from such a visit could attract the immunity if the communication itself was kept confidential.

91 The Commonwealth submitted that s 6(13) is, in effect, declaratory of the confidentiality of the contents of ICRC communications unless the ICRC provides authorisation in writing that the contents may be divulged to persons other than those to whom it intended them to be divulged.

92 On this point, I uphold the Commonwealth's submission. I do so for a number of reasons:

(1) Comprising part of the context of this regulation is the peculiar nature of the ICRC, its humanitarian roles and functions, and the methods by which it must go about performing them. A central characteristic of its work is the maintenance of the confidentiality of its communications with parties (state and non-state) with whom it must communicate in order to go about its work.

(2) An evident purpose of the regulation is to facilitate the performance by the ICRC of its functions and, to that end, to support and preserve the confidentiality of its communications.

(3) Being legislation to further and support humanitarian work, the regulation should be given a broad rather than narrow construction.[33]

(4) The text of s 6(13) falls within a division that, amongst other things, deploys the language of 'inviolability' in relation to the archives and documents of the ICRC (see s 6(1)), consistently with a general intent to provide broad and effective immunities.

(5) Properly construed, 'confidentiality' as used in this provision does not refer to the factual measure of secrecy surrounding a particular document or communication. Rather, it is a reference to the essential modus operandi of the ICRC when communicating with those with whom it must engage in the performance of its work.

(6) The two parts of regulation 6(13) - the part to and including the word 'respected', and the part thereafter ― are best understood as being inextricably linked in expressing and reinforcing one single idea. The first part states or declares a principle; the second part provides for the method of achieving it. Understood in this way, the prohibition against divulging the 'contents of these' reports etc, other than to the persons for whom they were intended, is the means by which the intrinsic confidentiality of the ICRC documents is to be respected.

**(7) To construe regulation 6(13) as if it merely provided - **

Only those contents of ICRC reports, correspondence and other communications that are confidential must not be:

(a) divulged...,etc

(b) used in..., etc

without the prior written consent of the ICRC,

would be to substantially narrow the meaning of the text and would render redundant much of the first part.

(8) The answer to any argument that this construction of s 6(13) would confer immunity from disclosure to documents already published by the ICRC in the public domain, or would provide immunity for communications when such immunity would not serve any useful purpose, and therefore could not be justified or have been intended, is found in the text of the regulation. First, disclosure is not prohibited to those to whom the communication was intended: s 6(13)(1). Secondly, by s 15(3), the regulation gives the ICRC the right to decide that the prohibition in s 6(13) need not apply. If the ICRC considers that the immunity would impede the course of justice and its purpose would not be prejudiced, the immunity does not apply. These two 'exceptions' to the application of the immunity support a construction that otherwise gives the prohibition a broad and absolute operation.

93 It follows that I reject Kamasaee's submission that the immunity from disclosure conferred by s 6(13) cannot apply to the contents of any ICRC report, correspondence or communication unless and until they are proven in fact to be 'confidential'.

94 The ICRC has made it clear that it does not authorise the disclosure to Kamasaee or the use in legal proceedings of any of the ICRC documents subject of this application.

95 This issue arises because it is apparent that much of what is sought to be protected in the eight documents as confidential ICRC communications are not documents made by the ICRC itself. Other than one of the redacted sections of document 23, and document 24 which raises the ARC issue (see next), they are all reports or statements made by persons other than the ICRC itself (for example, officers of DIBP). With those two exceptions, the documents in dispute are records containing secondary references, by one means or another, to primary ICRC communications.

96 Kamasaee submits that the terms of the ICRC Regulation are directed towards maintaining the confidentiality of the contents of ICRC communications or documents, and not necessarily the fact of such materials existing. On that basis, he submits that any claims for immunity over information that merely refers to such communications, without divulging their contents, should not be upheld.

97 Neither, he argues, should the immunity be allowed on the basis that a document, if disclosed, would merely allow reliable inferences to be drawn about the contents of an ICRC communication unless there is further evidence as to the specific inferences about such contents that could be drawn.

98 The Commonwealth submits that on the proper construction of regulation 6(13) the prohibition against the disclosure or use in legal proceedings of the contents of ICRC reports, correspondence and other communications extends to the substance of those communications and not just the form in which they were first embodied. That means, on the Commonwealth's argument, that what is protected is not merely the original report, correspondence or communication published by the ICRC but also documents in which other parties have extracted, summarised or paraphrased the ICRC's communication. Further, it extends to documents made by other parties which comment on or refer to an ICRC communication in such a way that reliable inferences can be drawn as to the contents of that communication.

99 Again, I prefer the construction given to the section by the Commonwealth to that urged by Kamasaee. I do so for the following reasons:

(1) Consistently with its context and purpose, the section should be given a broad rather than narrow construction.

(2) To adopt Kamasaee's argument would be to adopt form over substance which in my view would be inappropriate.

(3) The text 'the contents ... must not be ... divulged...' denotes a broad, absolute prohibition the effect of which would be rendered illusory if its protection could be undermined by secondary disclosure whether that be direct or indirect.

(4) In its ordinary meaning, the word 'divulge' means 'to disclose or to reveal' which is perfectly apt to include disclosure or revelation both directly or indirectly; there is no warrant to confine it to mean replicate or copy.

100 It follows therefore that, in my view, the protection afforded by s 6(13) extends to secondary disclosure of the contents of an ICRC communication whether that secondary disclosure is effected by direct summary or paraphrasing of the ICRC communication, or by the disclosure of information from which reliable inferences can be drawn about those contents.

101 Further, I reject any suggestion that there needs to be more specific evidence of the particular inferences that may be drawn from the redacted material about the contents of the relevant ICRC communication. This is merely an argument about the sufficiency of evidence. In my view, the uncontradicted evidence of Ms Cooper to the effect that particular material, if disclosed, would enable reliable inferences to be drawn about the contents of an ICRC communication should be accepted. There is good reason why more specificity has not been given; to give specific instances of the inference from the primary material would almost inevitably disclose the very material that s 6(13) provides must not be 'divulged' or 'used' in any legal proceeding.

102 The issue in relation to the ARC only affects one document: document 24 (A.100.3003.2443).

103 Document 24 contains a summary of recommendations arising from various reviews of the Offshore Processing Centres at Manus Island and Nauru including reporting on the implementation progress of each recommendation. It is a table that runs to some 146 pages with numerous columns. Kamasaee has withdrawn his previous resistance to the Commonwealth's objections to the redacted text appearing on pages 103 and 153-154. But he maintains his objections to the redactions on pages 7-19 and 143-149.

104 On those pages appear extracts of recommendations made, ostensibly, by the ARC. The Commonwealth claims that the contents of the ARC recommendations are protected by the provisions of s 6(13) on the basis of an apparent understanding between the ARC and the ICRC as explained in a letter from the ARC dated 19 August 2016 (exhibit KC-9). It appears that the ICRC and the ARC made an arrangement, documented in a letter of understanding between them, purporting to have the effect that the documents attributed to the ARC were covered by the ICRC's immunity rights and that only the ICRC could waive that immunity.

105 If that was the only evidence on this point, I would reject that proposition. The immunity in s 6(13) of the ICRC Regulation is conferred only upon ICRC reports, correspondence and communications. It does not confer upon the ICRC a right to extend its immunities to other parties by private arrangements. It is a legislative immunity, broadly construed as it may be, but it is confined only to one organisation. It is not for that organisation to choose to whom it may extend it.

106 However, that is not the full extent of the evidence. In Ms Cooper's third affidavit she exhibited a further letter, dated 5 September 2016, written by the ARC's Director of Migration, Emergencies and Movement Relations which gives more detail about the ARC's collaboration with the ICRC in relation to work at the Manus Island OPC.

107 That evidence establishes that the arrangement between the ICRC and the ARC since late October 2012 was that the ARC would visit Manus Island 'as' the ICRC - that is, on behalf of the ICRC. Consistently with that arrangement, visas for ARC participants attending the Manus Island Centre were obtained through the ICRC. All reports submitted by the ARC included information sourced by ICRC representatives. Those reports were reviewed (and I infer, approved) by the ICRC. From August 2013 onwards, it appears that the reports were joint reports of the ARC and the ICRC.

108 In my view, the totality of the evidence establishes that the content of the ARC recommendations as presented in document 24 relevantly represents the content of an ICRC report. I reach that conclusion for a number of reasons: (1) at the relevant time of attending the Centre and making recommendations, with the consent of the ICRC, ARC participants were acting in effect as the agents of the ARC; (2) the content of the recommendations blends or merges material sourced from both ARC participants and ICRC representatives; and (3) by reviewing (and approving) the recommendations, the ICRC in effect adopted them as its own.

109 Although I uphold Kamasaee's contention that, on its proper construction the ICRC Regulation does not extend the immunity to the contents of communications of non-ICRC parties, nevertheless in this particular case the disputed material in document 24 attracts the immunity because, in substance, it constitutes the material of the ICRC.

110 It follows that document 24 is not to be disclosed.

111 Had I rejected the Commonwealth's argument that document 24 could not be disclosed to Kamasaee because of the prohibition in s 6(13) of the ICRC Regulation, I would have had to consider whether it qualified for PII under s 130 of the Evidence Act, either on the basis of its membership of a protected class or on the basis of the sensitivity of its particular contents.

112 But, the Commonwealth has given little or no evidence to the court that would enable it to form any view on the relative public interest merits of disclosure or nondisclosure of the redacted parts of this document under the PII regime. As matters presently stand, I would not have been be satisfied that there were any grounds for refusing the disclosure of document 24 to Kamasaee on that basis.

113 Having resolved those issues of principle, I am now able to resolve the disputes concerning the ICRC documents.

114 On the evidence of Ms Cooper, I am satisfied that the disclosure of any one of the ICRC documents (or the relevant redacted parts thereof) to Kamasaee, or the use of them in this proceeding, would contravene s 6(13) of the ICRC Regulation. I uphold the Commonwealth's objections in relation to all eight documents.

115 The terms of the contemplated orders to enable Kamasaee to have access to documents under the limited access regime, as expressed in Schedule B to Ruling No 4, provide (in paragraph 8) that submissions and examination of witnesses about Confidential Information (as defined) are to occur in closed court. Such orders were to be made 'until further order of the court' (paragraph 1), acknowledging the fact that, at trial, the provisions of the Open Court Act 2013 will clearly be engaged.[34] However, the plaintiff raised some objections to the court making any order in advance of the trial providing for proceedings to occur in closed court. In light of those objections, the parties have agreed on a modification to paragraph 8 of the limited access orders with which I am also content. Accordingly, in place of the current form of order as contemplated in paragraph 8 of Schedule B, I will order as follows:

If any oral submissions are to be made or any witness is to be questioned by the plaintiff's legal representatives about the Confidential Information, the plaintiff notify the Commonwealth three (3) business days in advance.

116 Further, the contemplated limited access orders prescribe that access to the Confidential Information only be provided to persons who are to be defined as 'Nominated Representatives'. The Commonwealth wants those persons all to be admitted legal practitioners who must be identified by name in the order.

117 Kamasaee contends that this would be too restrictive. He wants the list broadened to embrace all of his legal representatives including paralegals and other administrative staff. His argument largely stems from considerations of practicality and economy due to the exigencies in the conduct of large litigation. He also submits that the practicalities of handling a large number of documents makes it inefficient, cumbersome and costly if subsets of the documents have to be handled by staff who must be admitted practitioners.

118 Balancing the interests of both parties I prefer to adopt the approach urged by the Commonwealth. The documents in question remain highly sensitive. Disclosure under a limited access regime has been allowed as a result of a finely balanced evaluation of competing public interests. In the end, the maintenance of tight controls over the scope of access permitted under the regime provides a benefit to Kamasaee that offsets and may even exceed the claimed inefficiencies that those type of controls could impose. That is because, in considering whether to order the disclosure of documents in this ruling (and potentially in other rulings), the narrower the scope of access under the limited access regime can make the difference between the court ordering no disclosure at all or ordering disclosure on the basis of the limited access regime.

119 Accordingly, only admitted legal practitioners whose names are stated in the order qualify to be Nominated Representatives for the purpose of the limited access orders.

120 In summary, I now state the outcome of my rulings in respect of each document; that is, whether the document (or relevant disputed part) is to be produced, not produced or produced pursuant to limited access orders.

121 First, as to the foreign relations documents, the outcome is as shown in this table:

PNG: Manus: Deteriorating security situation requires guidelines be developed for police intervention

PNG: Manus: Visit by PNG Foreign Minister and Attorney-General

PNG: Manus: PNG Cabinet to consider constitutional amendment to section 42

PNG: Manus: PNG's Refugee Status Determination provisions

PNG: Manus: New regulations - Compliance with Refugees Convention and Obligations

PNG: Visit by Shadow Immigration Minister Marles on 11 March 2014

PNG: Manus: PNG Barati Investigation: Second Arrest

RE: Request for input - bilateral meeting brief for PM's visit to PNG and discussions with PM O'Neill [SEC=In-Confidence:DIAC]

Summary of discussions with PNG [SEC=UNCLASSIFIED]

Managing Public Order and Negative Transferee behaviour in the Regional Processing Centres (RPC) at Nauru and Manus Island (Papua New Guinea) Sub - behaviour management in RPCs - cleared by JM

122 Secondly, as to the ICRC documents, the outcome is as shown in this table:

Review into the events of 16-18 February 2014 at Manus RPC - Transcripts and Meeting Notes

Review Recommendations Summary Table - Health and Welfare 29 Aug 2014 - [individual]

FW: [International Organisation] response [SEC=UNOFFICIAL]

123 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'); Kamasaee v Commonwealth of Australia (No 5) (Cabinet documents: substantive ruling) [2016] VSC 595R ('Ruling No 5').

[2] Section 130(4)(a) of the Evidence Act. Objections to disclosure of documents in the other category, 'Cabinet documents', are the subject of Ruling No 5 (see note above).

[3] [2016] VSC 492.

[4] Affidavits of Daniel Thomas Sloper affirmed 24 June 2016 and 24 August 2016.

[5] Ruling No 4 [2016] VSC 492 [35]-[47].

[8] Affidavit of Andrew John Baker affirmed 1 September 2016.

[9] See Ruling No 4 [2016] VSC 492 [11]-[14], [54].

[12] See Ruling No 4 [2016] VSC 492 [139] and Ruling No 5 [2016] VSC 595R [35] which, I consider, apply equally in relation to diplomatic cables.