Plaintiff v First Defendant

EVIDENCE - Discovery - Whether documents of the Australian Red Cross (ARC) concerning the conditions of Christmas Island detention centre detainees covered by immunity - Whether documents relate to 'matters of state' - Whether disclosure would harm Australia's foreign relations - More broadly whether disclosure of the class of documents would prejudice the proper functioning of the ARC and Commonwealth to address humanitarian issues arising in detention centres - Whether the public interest in disclosure is outweighed by the public interest in protecting the relationship of confidence between the ARC and the Commonwealth - D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171; Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 referred to - Ryan v State of Victoria [2015] VSCA 353 referred to and applied - Kamasaee (No 7) referred to and distinguished.

EVIDENCE - Discovery - Immunity from disclosure of documents - Whether documents immune as a 'class' or owing to their 'contents' - Found appropriate to treat documents as a 'class' insofar as disclosure will prejudice the public interest regardless of contents - Inspection of documents warranted in order undertake balancing exercise under s 130 of the Act - Documents materially relevant to issues in a significant proceeding - Balancing exercise favours non-disclosure.

1 This is an application by the plaintiff ('AS') for orders that the first and second defendants ('Commonwealth') produce to her certain documents which the Commonwealth objects to producing on the basis that they are protected from disclosure by public interest immunity. The documents concerned ('Red Cross documents') include reports prepared by the Australian Red Cross ('ARC') and provided to the Commonwealth which include observations, comments and recommendations made by the ARC following visits to detention centres under the control of the Commonwealth, including the detention centre at Christmas Island ('detention centre').

2 At the date of the hearing AS, a child born in 2008, was the lead plaintiff in a class action brought on behalf of all persons who have been detained at the detention centre between 27 August 2011 and 26 August 2014. AS herself resided with her father at the detention centre between 26 July 2013 to 16 August 2013, following which she resided in Darwin with her family until 18 October 2013, where her mother gave birth to her younger brother. The family returned to the detention centre on 18 October 2013, where they stayed until 19 August 2014.

3 On 16 and 17 March 2017, while judgment in this application was reserved, J Forrest J, the managing judge of the proceeding, heard an application by the Commonwealth, supported by the other defendants, that the proceeding no longer proceed as a class action, and that the claims of group members be prosecuted separately. This application was successful.[1] However, as even prior to his Honour's ruling on 27 March 2017, the trial scheduled to commence on 26 April 2017 was always intended to be a trial of AS's claims alone, the change in the status of this proceeding has had limited impact upon the outcome of the application.[2]

4 The background to the proceeding, and the nature of the allegations made against the Minister and the other defendants have been canvassed and summarised in a number of interlocutory rulings,[3] and I do not propose to canvass them again here, except where necessary for the purpose of determining the application. The issues in the proceeding are summarised in paragraph 9 of an affidavit affirmed by Mr Tim Conboy, a solicitor representing the plaintiff, on 3 March 2017, as follows (deleting the references to other group members):

(a) the alleged conditions of the detention AS experienced at relevant times;

(b) the alleged nature and scope of the duty of care owed to AS;

(c) the alleged reasonable foreseeability of AS suffering injury or an exacerbation of injury because of the conditions of [her] detention;

(d) the alleged deficiencies in the provision of education to AS;

(e) the alleged separation of AS from her mother and its alleged consequences for AS; and

(f) the alleged breaches of the duties allegedly owed to AS.

5 The hearing of the application is the final stage of a process whereby the parties have identified and evaluated the Commonwealth's claims for legal professional privilege and public interest immunity over certain categories of documents. As a result of the evidence filed on behalf of the Commonwealth on 1 March 2017, AS no longer presses her claim to inspect documents identified as 'cabinet documents'. Further, in its submissions filed on 1 March 2017, the Commonwealth no longer pressed its claim for public interest immunity over certain documents containing information concerning the operation of the detention centre, subject to the parties reaching agreement upon an appropriate confidentiality regime. This leaves the only matter for determination the status of the Red Cross documents, which were initially identified as being subject to a claim on the basis that their disclosure would harm Australia's foreign relations. However, as it has turned out, the Commonwealth's claim for public interest immunity in the Red Cross documents is cast more widely than that, as will be explained later in these reasons.

6 The Commonwealth relied upon affidavits affirmed by Ms Katrina Cooper and Mr Michael Kunz on 1 March 2017. Mr Kunz deposed, in summary, as follows:

(a) he is currently employed by the ARC as the National Program Coordinator for the Immigration Detention Monitoring Program, and is authorised to give evidence on behalf of the ARC in support of the public interest immunity claims made by the Commonwealth;

(b) he has been employed by the ARC since 2007. Between 2008 and 2015 (with a break in 2012) he held the role of Team Leader and Humanitarian Observer. In that role, and in his current role, in which he manages the ARC teams' monitoring visits to immigration detention centres and regional processing centres (the latter being located on Nauru and Manus Island, Papua New Guinea), he has made well over fifty visits to immigration detention centres and regional processing centres. He is also the ARC's representative on the International Red Cross ('ICRC') and Red Crescent movement's Global Working Group for National Societies in Immigration Detention. He deposed that:

Based on my experience, I have a good understanding of the sensitivities of both the ARC and ICRC's work, especially in the detention context.

(c) he described the organisation and work of the International Red Cross and Red Crescent movement ('Movement'), as the world's largest humanitarian network, and, while its components are independent, people generally do not differentiate between the individual constituents of the Movement, but rather:

see us as a global humanitarian network, all working together to relieve human suffering in a neutral and impartial way, in whatever context we find ourselves; be it domestically in peace time, or in the midst of armed conflict

(d) he described the charter and the work of the ARC, and the importance of the actual and perceived independence of the ARC to the work of the ARC. He deposed as follows:

... the neutrality or impartiality of the ARC is central to our work with public authorities. It assures those authorities, as well as contractors, subcontractors and employees of those entities that work for public authorities, that the ARC does not have a particular political agenda and that its focus is humanitarian at all times. That also helps build the credibility of the ARC, with public authorities and individuals in need that we work with.

7 In his affidavit, Mr Kunz described the work of the ARC in immigration detention facilities in some detail, in summary, as follows:

(a) since 2008, the ARC has had regular access to each immigration detention facility in Australia as part of the ARC's Immigration Detention Monitoring Program. Between 2008 and 2014 the ARC visited most detention centres each quarter: since then, it has visited every facility each quarter. Approval for visits is provided by the Department of Immigration and Border Protection ('Department'); and

The essential role of the program is to monitor the conditions of detention and the treatment of people in detention to ensure the health, dignity and wellbeing of people in detention is upheld and protected. We do this through our regular visits and by providing feedback and recommendations to the Department and its detention service provides to ensure relevant humanitarian standards are met.

To do that, the Monitoring Program seeks to access detention centres, regularly, to speak openly with people detained in detention centres, to provide frank and regular feedback to the Department and organisations that are contracted (or sub-contracted) to provide services in detention centres (such as the International Health and Medical Service (IHMS) or Serco - together, Service Providers), and to engage in a constructive and direct dialogue with the Department and the Service Providers in the centre.

8 In relation to what occurs during ARC visits to detention centres, Mr Kunz deposed as follows:

There are 5 minimum conditions that we request of the Department for our visits: that we can have repeat visits, that we are able to draw up schedules of who we have met with, that we are able to raise issues confidentially with the Department and Service Providers at the facility, that we have access to all parts of the facilities and that we are able to speak to people confidentially and in private.

9 Mr Kunz deposed that after each visit, the ARC provides a report to the Department and those administering the detention centres to raise issues observed during the course of each visit, including 'systemic' issues of humanitarian concern, and individual concerns raised with the ARC team. He deposed:

Our aim is to try and resolve as many issues as we can on a systemic level. We focus on the systemic issues rather than individual circumstances because that is where our work will have the most impact for a greater number of people in detention and possibly across a number of different detention facilities.

10 Mr Kunz deposed that the ARC also provides a quarterly report to the Department to raise issues of humanitarian concern that remain unresolved, or require a national response, and holds quarterly meetings with the Department to discuss the matters raised in these reports. He described the steps taken by the ARC to protect the information obtained by the ARC on detention centre visits, and the limited distribution of the reports prepared by the ARC concerning these visits.

11 Mr Kunz deposed at some length as to the types of activities undertaken by the ARC in detention centres, and the circumstances he considers 'to be important for the effectiveness of the ARC in improving the actions of the Department and service providers in the Centres.'

12 He deposed that all ARC staff and volunteers ('Red Cross team members') wear Red Cross banded teeshirts during visits to detention centres, which he considers important because of the strength of the Red Cross 'brand'. The Red Cross brand builds trust which says to most people: 'this is a safe space.'

13 Further, Mr Kunz deposed that the independence of the ARC from public authorities helps Red Cross team members build trust with people in detention.

14 Mr Kunz deposed in some detail what occurs during interviews and discussions between Red Cross team members and people in detention. They meet with both individuals and groups, following a 'Key Talking Points' template, which was exhibited to the affidavit. Red Cross team members tell people in detention that their discussions are confidential. He deposed that the ARC has a standard consent and privacy form, translated into various languages. He deposed as follows:

My experience is that people in detention speak to us about issues that they haven't mentioned directly to the Department or Service Providers because they trust us. With the consent of those people in detention (nominal or non-nominal), we confidentially discuss those issues with the Department. My experience is that people in detention at times are more comfortable giving information to us than to the Department directly, because they trust that we will discuss the issues with the Department focusing on the humanitarian concerns for people in detention and because we are able to raise issues without identifying individual people in detention.

Sometimes that means that the first time the Department or a service provider hears about an issue is through us, because an individual or a group of people in detention have not been prepared to talk to them directly. For that reason, I consider that we are an early warning system. In my experience, the Department recognises and appreciates that. However, our capacity to receive that information from people in detention, and to pass it on to the Department, is only possible because we have regular, unimpeded access to the centres, the people in detention and Service Providers, and because they are prepared to speak openly with us.

15 Mr Kunz deposed as to the interactions between the ARC and the government and service providers. He deposed, in summary, as follows:

(a) after the conclusion of interviews with people in detention, the Red Cross team members hold meetings with those running the detention facilities, and provide reports to the Department, seeking a response from the Department on issues or concerns raised;

(b) he believes the independence of the ARC is important in the ARC's engagement with and reporting to the Department, because the Department and service providers know that the ARC is not party-political; and

From my experience, the Department (and government agencies generally) perceive the ARC as neutral, which means that we do not seek controversy by publicly raising issues but always reserve the right, after careful consideration of its impact, to speak out publically on issues of humanitarian concern if all other avenues to resolve issues have been unsuccessful. Our direct dialogue, frank and unbiased reports and observations give us credibility. Public authorities know that we have visited each of the detention facilities, that we have spoken directly with people in detention, that we have discussed information with the Department and Service Providers and have provided the Department with reports to seek a response, and that our reports and conclusions are based on all of that information together.

16 Mr Kunz deposed that: 'maintaining confidentiality is a fundamental pillar of the work of the ARC', in respect to the ARC's discussions with people in detention and service providers, in its discussions with and reports to the Department, and in its interactions with and work supporting the Movement. He deposed as to the significance of confidentiality to what people in detention are likely to disclose to Red Cross team members. He deposed as follows:

If the confidentiality of our reports and interactions with the Department and Service Providers cannot be maintained in this case or similar cases, I believe that that will become known, including amongst people in detention. Based on my experience, I believe that if people in detention lost confidence in our capacity to keep information confidential, there would be a significant risk of the following:

(a) We would need to spend a lot more time to build (or rebuild) trust with people in detention before they would provide information. At the moment, when we first meet with people we can be clear in our description of our understanding about how the information is used. However, if we need to add caveats about possible future disclosure, or if we are not able to describe where the information will go or how it will be used, I believe that people will be less likely to speak freely with us.

(b) I believe that the result would be that it would take much longer to obtain any information from people in detention and, more importantly, we would be more likely to obtain only broad information. That would make our reports more general and less targeted, and therefore not as effective or useful.

17 Mr Kunz also deposed as to the importance of confidentiality to the ARC's interactions with the Department, as follows:

Further, because our reports to the Department are provided on the condition that they will remain confidential, the reports can be very detailed and frank. The ARC can express its views and observations without the danger that those views will be made public, with potential harm to the perceived independence of the ARC (for example, a political party may use ARC observations to make a political point or a lobby group may use them politically against government).

If ARC reports to the Department remain confidential, it means that the ARC maintains a degree of control over the information. The ARC knows that the information and opinions given will be considered only by those public authorities. We know how the information will be used and for what purpose.

However, if our reports were to be released more broadly we would not know what use they might be put to, or whether the information in the reports is portrayed appropriately and within the right context. There would also be a risk that the information would be used to create controversies, which could hinder our activities in Australia or the activities of other parts of the Movement overseas, due to reduced access as a result of a loss of trust.

Further, the ARC would not wish to be seen as party political in any way, as this would not be in line with our Fundamental Principles. In particular, the Fundamental Principle of neutrality notes that in order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

If confidentiality could not be assured, there is a significant risk that the ARC would need to alter the style or content of reports, in case of their release to the public. As a result, our reports would be broader and more general and would be less likely to achieve relevant change. Having detailed evidence and information from our visits in reports, not just policy, means accountability and transparency through a direct dialogue. Confidentiality enhances that process, including on the side of the ARC. I believe that the potential loss of confidentiality in ARC reports would be likely to result in less detailed and less useful reports. That would mean less chance for improvement of outcomes in detention centres overall, as well as in the cases of individual people in detention.

18 Mr Kunz also deposed as to his concerns regarding the ARC's ability to work effectively with the ICRC, the Movement and other national Red Cross/Red Crescent societies if those organisations and governments outside Australia did not have confidence in the neutrality, independence, and confidentiality of the ARC or the ICRC and its members. He deposed as follows:

Further, if National Societies overseas, or the ICRC, believed that information provided to the ARC would not remain confidential, then those organisations might be less willing to provide information. It might also reduce the willingness of governments overseas to work with the Movement, for the same reasons. Each agreement for access to detention centres (or to carry out other activities of the Movement) is negotiated with overseas governments individually. If the impartiality or confidentiality of a part of the Red Cross Movement was compromised or even perceived to be compromised, I believe that would make the negotiation of agreements overseas more difficult. My view is that governments of other countries are very likely to take note if information is released in Australia and in turn that would likely have an impact on the broader work of the ICRC and National Societies. There would then also be a significant risk that the capacity to monitor and improve standards of detention overseas, which I understand the Australian government to support, would be reduced.

My expectation is that the detention of migrants internationally is likely to increase. The ARC does not want the Movement to be in a position where our ability to provide monitoring services and humanitarian assistance in the future is negatively impacted.

19 Mr Kunz deposed that the ARC only provides reports and other information outside of public authorities or service providers when legally compelled to do so. He deposed that some of the documents sought by the plaintiff in this proceeding were produced to the Australian Human Rights Commission ('Commission') pursuant to a Notice to Produce. He deposed that discussions were held between officials of the ARC and the Commission concerning the information to be provided to the Commission, and the use and disclosure of the information. He deposed that the ARC:

(a) was concerned to maintain control of the information it provided;

(b) required that information provided to the Commission, if used in the preparing of the report, would not allow for the identification of particular people in detention or groups of people in detention;

(c) was concerned to maintain the confidentiality of the reports and their contents more generally;

(d) was also concerned to ensure that there was no public perception of a loss of independence on the part of the ARC.

A confidentiality regime would not be the preferred option of the ARC for a number of reasons. It sets a precedent that may lead to further disclosure and a gradual erosion of confidentiality over time. Even limited disclosure of information is inconsistent with the confidentiality described above. Further, it increases the risk that the information will become known through accidental disclosures or other processes that cannot presently be foreseen. Additionally, even if the information itself is not revealed, the fact of confidential information having been produced and used would be likely to become known - this itself would lead to many of the harms described above. Although the full consequences that I have outlined above might be less likely to occur, or at least less quickly and obviously, I believe that limited disclosure would still damage the perception of and trust in the ARC Movement, would make speaking with detainees more difficult, and might make the exchange of information between the ARC (or the ICRC) and public authorities less detailed and therefore less able to achieve the humanitarian aims.

21 The Commonwealth also relied upon an affidavit affirmed by Ms Katrina Cooper, the senior legal adviser for the Department of Foreign Affairs and Trade ('DFAT'). She deposed as to her experience as the Australian Ambassador to Mexico between 2008 to 2012, and her prior experience in DFAT since 1998. She deposed that in her current role, she oversees DFAT's advice on all domestic and international law matters save for trade law, including DFAT's advice on international humanitarian law (the law of armed conflict) and international human rights law. Further, Ms Cooper deposed, in summary, that:

(a) she has primary carriage of all interactions between DFAT and the ARC and the ICRC in relation to legal issues;

(b) she is responsible for DFAT's interaction with the ARC and the ICRC and other governments on the implementation and development of international humanitarian law;

(c) she represents DFAT on the Australian National International Humanitarian Law Committee, upon which both the ARC and ICRC are represented, and she meets frequently with the ARC and the ICRC mission to Australia. She is in regular contact with the ICRC in Geneva; and

I am the most senior decision-maker in DFAT with specific knowledge of the day-to-day interactions between the Australian Government and the ARC and the ICRC in relation to international law issues.

I work closely with other senior officials to ensure consistency of the Commonwealth's engagement with the ARC and ICRC more broadly. In my role, I consult with the First Assistant Secretary of the Humanitarian NGOs and Partnerships Division, who is the most senior decision-maker in DFAT with specific knowledge of the day-to-day interactions between Australia and the ARC and the ICRC in relation to humanitarian crises and the provision of humanitarian relief. I consult regularly with the Director-General of the Australian Defence Force Legal Service and the First Assistant Secretary of the Office of International Law in the Commonwealth Attorney-General's Department who both work closely with the ARC and ICRC in relation to the interpretation and application of IHL and its implementation in Australian law.

22 Ms Cooper deposed that the Commonwealth makes public interest immunity claims (for damage to foreign relations) in relation to the Red Cross documents, on the basis that disclosure of these documents would damage Australia's public interests, as follows:

(a) It would reveal information that was obtained by the ARC in confidence and provided to the Australian Government by the ARC, in confidence, in relation to functions being carried out by the Australian Government.

(b) Such a compromise to these confidences, and the perceived risk of future compromise, would thereby undermine the principles upon which the ARC operates and the effectiveness of its humanitarian work.

(c) This in turn could impact on the operation and effectiveness of other members of the Movement and reduce Australia's ability to be an effective voice amongst States or other members of the Movement in relation to application of humanitarian law, the protection of persons in armed conflict and other such matters.

(d) As a consequence, Australia's international relations and international reputation could be prejudiced.

23 Ms Cooper deposed as to what she described as 'Overarching Concerns', as follows:

Throughout this affidavit, I identify a range of risks and harms. By their very nature these are impossible to quantify; they may be realised in ways, places and times which cannot presently be known. Accordingly, I do not suggest that every harm will necessarily be realised immediately upon any disclosure of the ARC Documents, or realised to the full extent possible.

The consequences of such harms arising are, however, serious. In my view, disclosure of the ARC Documents would create a real prospect of these harms being realised. Accordingly, I consider there is a strong public interest in not taking the risk of disclosing the ARC Documents.

In this regard, I note two additional considerations:

(a) The nature of the ARC's work is such that its reports are intended to identify areas for concern or improvement in migration detention centres. Accordingly, I anticipate that ARC reports generally would be relevant to most legal proceedings in which such issues arose. Were ARC reports to be disclosed in such proceedings, the harms identified in this affidavit would, in my view, almost certainly be realised.

(b) The kinds of harm explained in this affidavit could arise even in the event disclosure was subject to limited release to parties and the Court. It would still be publicly known from such a ruling that ARC reports could be disclosed and used for the purposes of private litigants in legal proceedings. Even without full public disclosure, the use of the ARC reports in this way would nonetheless: involve breaches of confidence; compromise to the ARC's neutrality; and pose risks to Australia's foreign relations as described below.

24 Ms Cooper deposed as to the terms of the Statutes of the Movement, and the status of the ARC as one of the basic units of the Movement. She deposed as follows: 'The role of the Movement as a whole and of its members aligns closely with the Australian Government's foreign policy objectives in the [international humanitarian law] arena.'

25 Ms Cooper described the functions of the ARC under the Statutes of the Movement, being to support public authorities in their humanitarian task, and the requirement that the ARC act in accordance with the seven fundamental principles of the Movement. She deposed as follows:

The Fundamental Principles include acting with impartiality, neutrality and independence to protect the confidence of all States, non-government organisations and individuals globally in the Movement, and to cooperate with each other in carrying out their respective tasks. Confidentiality has been described by international law experts as arising from three of those Fundamental Principles - the maintenance of confidentiality preserves impartiality, neutrality and independence. That confidentiality ensures that the Movement can obtain frank information and provide frank advice. The confidentiality of communications between national societies and the ICRC on the one hand, and the relevant authorities on the other, plays a crucial role in allowing national societies and the ICRC to gain access to victims of armed conflict and other situations of violence and of humanitarian need, facilitates dialogue with relevant authorities and protects the staff of national societies and the ICRC and the beneficiaries of its assistance. Without it, the Movement would have reduced access to places of detention and detainees, its advice would lose credibility, and the humanitarian objectives which it presently secures would be compromised.

The ARC operates as a national society but also indivisibly as a member of the Movement. As a member of the Movement, the ARC collaborates with the ICRC, other national societies and the IFRC.

Although the ARC and other member organisations operate independently of the ICRC, in my experience, as a matter of public perception, the Movement may be seen as the one entity: the Red Cross (or the Red Crescent) more generally. That means that the public, or outside observers, may not distinguish the actions of the ARC from other members of the Movement. This in turn means that any negative impression created by one part of the Movement could create a corresponding negative impression across the Movement more broadly. To maintain the strength and effectiveness that comes from the overall unity of the movement, each individual member must take care to ensure that it acts, and is seen to act, consistently with the Fundamental Principles.

26 Ms Cooper deposed that the ARC was first established as an unincorporated branch of the British Red Cross in 1914, and incorporated as the ARC by Royal Charter on 29 June 1941 by King George VI at the request of the then Australian Prime Minister. She exhibited the 1941 Royal Charter and the most recent supplemental charter of 12 October 2010. She deposed as follows:

Like other national societies, the Royal Charter expressly states that the ARC is specifically established to be "auxiliary to public authorities". As such, the ARC works closely and directly with relevant government departments and public authorities in relation to humanitarian and IHL matters. Part of that work involves providing feedback to public authorities about their functions and how they may be altered or improved for the benefit of the individuals to whom the ARC provides humanitarian assistance. The work of the ARC in that regard complements the work of the ICRC internationally, and the work of national societies in other countries.

The Royal Charter also provides that public authorities, in turn, shall at all times respect the adherence by the ARC to the Fundamental Principles. In this way, the Royal Charter reflects international expectations that the Australian Government will ensure the impartiality, neutrality and independence of the ARC. Consistent with this, the Australian Government seeks to preserve the confidentiality which is central to those principles.

27 Ms Cooper deposed as to the potential risks to the public interest of disclosure of the ARC documents, including:

(a) the risk of compromise to the operations of the ARC, and diminution of its effectiveness in the humanitarian field;

(b) the resulting harm to the reputation and work of the Movement; and

(c) the risks of compromise to Australia's foreign relations which might arise from it being seen to have failed to adequately protect the interests of the ARC and the Movement.

28 In relation to paragraph 27(a) above, Ms Cooper refers to the affidavit of Mr Kunz, and deposed as follows:

I share the concerns that the release of information obtained and provided by the ARC in confidence will be seen as being inconsistent with the confidence, independence, neutrality and impartiality that characterise the work of the ARC and its relationships with detainees and the Australian Government. In particular, I consider that the prospect that the ARC Documents may be examined and used in private litigation would directly and substantially undermine the effectiveness of the ARC's work in relation to detention centres. The result of this could weaken the humanitarian response and effectiveness of the ARC with respect to its operations in Australia's migration detention centres.

My concern is not that some form of adverse action would be taken by the ARC or Australian Government (e.g. a refusal to discuss issues at detention centres). It is my view that institutions would understand and respect that an order requiring disclosure of the ARC Documents was a decision of the Court, not a choice to breach a confidence. Nonetheless, the high levels of trust and confidence which underpin the relationship could be eroded by a degree of uncertainty created by the prospect that confidential ARC information may be accessed and used by private litigants in public proceedings. In particular, it could create scope such for information to be relied upon for private, partisan or political purposes, inconsistently with the impartiality and neutrality with which the ARC is bound to operate. It could diminish the frankness of officials which is important to the effective and efficient work of the ARC.

29 In relation to paragraph 27(b) above, Ms Cooper deposed that members of the public do not differentiate between national societies, the ICRC, and the Movement as a whole. She deposed that:

A perception that a national society of the Red Cross has failed to act confidentially, or in accordance with the principles of impartially, neutrally and independence, may have even more serious consequences in other States. Whereas the Australian Government and ARC operate in the context of a stable political system, the work of the Movement in many other countries is more fraught. In those States a perception that a national society of the Red Cross did not keep information confidential, or that it lacked impartiality or neutrality, may lead to States refusing to cooperate with the Movement and refusing access to detention facilities. This would damage the important role played by the Movement in ensuring the human rights of detainees are respected.

30 In relation to 27(c) above, Ms Cooper deposed as follows:

It is my view that disclosure of documents about migration detention provided 'in confidence' to the Australian Government by the ARC would damage Australia's foreign relations by: (i) damaging Australia's relations with States and bodies associated with the Movement; and (ii) undermining Australia's standing in meetings and forums attended by members of the Movement, with the effect that Australia would be less able to persuade others to accept its preferred foreign policy outcomes. In the following paragraphs, I explain why and how disclosure would impact on Australia's foreign relations in these ways.

31 Ms Cooper then went into further detail regarding her concerns in relation to the potential impact of disclosure of the Red Cross documents upon Australian foreign relations, by reason of:

(a) the undermining of Australia's reputation with the Movement if the Movement or its constituent members perceived that the Australian Government was unable or unwilling to maintain the confidentiality expected by the Movement;

(b) Australian's high standing with other states and international forums that are concerned with international humanitarian law and humanitarian issues could be affected by disclosure of the Red Cross documents, and their willingness to communicate with the Australian Government could be curtailed;

(c) a perceived failure by the Australian Government to maintain confidentiality over the Red Cross documents could be seen by members of the Movement as inconsistent with Australia's commitment to ensure that the ARC has access to all migrants; and

(d) in relation to the International Conference of the Movement, Ms Cooper has observed, as the head of the Australian delegation to the 32nd International Conference in 2015, any harm to the relationship between the Australian Government and the ARC would make Australia less able to persuade states and members of the Movement to support Australian objectives and initiatives.

32 Finally, Ms Cooper deposed that between 10 and 15 February 2017 she reviewed the Red Cross documents, and deposed that the Red Cross documents contain information from persons given to the ARC in confidence, and were provided to the Commonwealth confidentially. She deposed that in her view, there is a risk of harm from the disclosure of the Red Cross documents. She deposed that their disclosure would create a significant risk of the harms referred to at paragraph 27 above arising.

33 The plaintiff relied upon an affidavit affirmed by Mr Tim Conboy on 3 March 2017. This affidavit was prepared, at least in part, in response to my request during the course of an earlier hearing that the solicitors for the plaintiff articulate how they consider the Red Cross documents to be relevant and/or significant to the issues in the proceeding.

34 In his affidavit, Mr Conboy deposed, in summary, as follows:

(a) as to the procedural history of the discovery process. The Commonwealth claims for public interest immunity were first raised on 9 May 2016;

(b) the significant issues in AS's claim, as reproduced in paragraph 4 above; and

(c) his belief as to the potential relevance of the Red Cross documents to the issues in this proceeding.[4]

35 Before turning to the parties' submissions, it is appropriate to reproduce the relevant statutory provision governing this application, being s 130 of the Evidence Act 2008 (Vic) ('Act').

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

36 By reason of the terms of s 131A of the Act, s 130 of the Act applies to the discovery process, as well as to the evidence adduced at trial.

37 Also, it is common ground that the construction of s 130 of the Act is informed by principles developed by the common law. A helpful summary of the position is to be found in the reasons of Basten JA in the decision of the New South Wales Court of Appeal in Ku-ring-gai Council v Gary West as delegate of the Acting Director General, Office of Local Government,[5] published while judgment in this application was reserved, as follows:

Two things should be stated about the correct approach to the consideration of objection on the grounds of public interest immunity, in a case where s 130 is engaged. First, the statutory structure should be followed. That requires identification of the scope, content and importance of (a) the public interest in admitting information or a document into evidence, and of (b) the public interest in preserving secrecy or confidentiality in relation to that information or document. It is only when the latter outweighs the former that the court is empowered to direct that the information or document not be adduced in evidence.

Secondly, in other respects the terms of s 130 are permissive rather than restrictive. That fact engages s 9(1) of the Evidence Act which provides:

This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

Accordingly, so far as principles or rules can be derived from authorities operating under the common law or equity, which are not inconsistent with ss 130 and 131A, those principles or rules continue to apply. It is for that reason that consideration of common law authority may not only be permissible, but necessary.[6]

38 As noted above, the Commonwealth's claims for public interest immunity in the Red Cross documents were initially expressed to be based upon s 130(4)(a) of the Act, as being documents concerning Australia's foreign relations. By the time of the hearing of the application, the position had shifted somewhat. Put briefly, the Red Cross documents are said to constitute a class of documents created in circumstances where there is an expectation that they would be confidential as between the ARC and the Commonwealth, and that any breach of that confidentiality would directly affect the ability of the ARC and the Commonwealth to address humanitarian issues arising in detention centres. The risk of harm to Australia's foreign relations is thus only one aspect of the Commonwealth's claim for public interest immunity.

39 In its written outline of argument dated 1 March 2017,[7] the Commonwealth introduced its submissions as follows:

So far as the PII claims are concerned, the public interests in the Cabinet claim and the foreign relations claim outweigh the public interest in disclosure to the plaintiff. A substantial proportion of the material is unlikely to be of real relevance to the plaintiff's claim. As such there is no public interest in disclosure and the public interest in non-disclosure necessarily prevails in relation to that information. To the extent that information is relevant, the strong claims to protection are not outweighed because:

(a) the proceedings concern a civil claim by a private litigant for the purposes of seeking damages (in contrast, for example, to a serious criminal prosecution);

(b) mere relevance of information does not point to a strong public interest in disclosure, because it may not have utility or significance in light of the case to be run and the huge amount of material already discovered;

(c) if the claimed significance is the very fact that documents went to Cabinet, or came from the ARC, this would in fact heighten the public interest against disclosure.

40 The Commonwealth's submissions noted that the authorities relating to public interest immunity at common law remain relevant to claims under s 130 of the Act, and that in determining such claims, the Court is necessarily undertaking a balancing exercise between two competing public interests, being the public interest in maintaining confidentiality in documents where disclosure would harm the public interest, and the public interest in the administration of justice of parties to litigation having full and unimpeded access to relevant documents. The Commonwealth in its outline also identified the following relevant principles governing applications of this nature (omitting citations):

(a) the Court should give significant weight to the evidence and opinions of senior governmental officers because it 'will seldom be within the expertise of the Court to evaluate such questions of harm to the public interest';

(b) a real risk of harm is sufficient to engage the operation of s 130 of the Act, it is not necessary for the Commonwealth to establish that the potential harm is 'more probable than not';

(c) the Court should be slow to inspect documents for which a claim is made, and should only do so if it appears there may be a strong argument for production;

(d) a confidentiality, or limited access regime is no substitute for an order that there not be disclosure of documents by reason of public interest immunity, because providing access to lawyers is inconsistent with the public interest for three reasons:

(i) first, it represents an encroachment upon the confidentiality of the documents;

(ii) secondly, the public interest may require a clear and ongoing confidentiality of that class of information, such that the risk to the public interest arises from the fact of disclosure itself; and

(iii) the well recognised risk of inadvertent disclosure which attends the handling of sensitive information in litigation; and

(e) the existence of provisions such as s 130 of the Act recognise that, if a claim for public interest immunity is upheld, the litigation will inevitably proceed without the fullest of argument.

41 To interpose here, senior counsel for AS did not take issue with the legal principles referred to by the Commonwealth in its submissions. Rather, it was contended on behalf of AS that the provisions of s 130 of the Act were not engaged by the Red Cross documents, as they were not documents concerning 'matters of state' within the meaning of s 130(1) of the Act. As the Commonwealth has, by discovering the Red Cross documents, conceded they are relevant to the issues in this proceeding (even insofar as they concern the claims of AS alone), the Red Cross documents should be produced.

42 Returning to the Commonwealth's written outline, its submissions concerning the Red Cross documents can be summarised as follows:

(a) the Commonwealth's claims for public interest immunity with respect to the Red Cross documents are made on two bases: the first being its relationship with foreign states and organisations such as the Movement, and secondly, the 'protection of government activity which requires the preservation of relationships of confidence', such as the relationship between the ARC and the Department;

In this case those categories are interrelated. Relationships of confidence are critical to the work of the ARC and government's response to that work. Such relationships are consistent with the confidentiality which underpins the work of the Movement more broadly. As such, a compromise of the relationships will (i) directly affect the ability of the ARC and the government to address humanitarian issues (ii) have flow-on consequences for the Movement more broadly and (iii) threaten Australia's foreign relations in this area.

(c) the Commonwealth referred to the affidavits of Mr Kunz and Ms Cooper concerning the importance of confidentiality to the work of the ARC, how any real or perceived compromise of that confidentiality may undermine the effective working of the ARC and the Australian Government, and how in turn that may compromise Australia's foreign relations;

(d) the importance of confidentiality to the effectiveness of the ARC's visits to detention centres;

In those circumstances, the release of the information sought in this case would be likely to cause significant damage to Australia's interests because:

(a) the relationship of frankness which Australia has with the ARC and members of the Movement would be compromised by a concern on their part that information which they have obtained confidentially will not stay confidential in the hands of the Australian government;

(b) the release of Red Cross information held by the Australian government may impact upon the perceptions, and hence effectiveness, of the Movement;

(c) were Australia to be perceived to have weakened the effectiveness of the movement in this way it would be liable to damage Australia's relations with members of the Movement;

(d) more broadly it would undermine Australia's international standing and its effectiveness in advocating foreign policy outcomes, particularly in relation to international humanitarian matters.

(f) in relation to the impact of the disclosure of the Red Cross documents in this particular proceeding, the Commonwealth made the following observations:

(i) the nature of the ARC's work in detention centres and its relationship to government means that any civil litigation concerning detention centres is likely to raise issues which have been the subject of consideration by the ARC, and raised with the government by the ARC. Accordingly, disclosure of the Red Cross documents in the current case is likely to create an expectation of disclosure in other cases, which would

profoundly affect the underlying confidentiality which is important to the public interests in the ARC's work with government in relation to humanitarian issues and the associated foreign relationships; and

(ii) if AS were to seek to rely upon the Red Cross documents for the very reason that they were authored by the ARC, their use

would not just be destructive of the confidence which the government and the ARC depend upon, it would compromise the independence and neutrality which is critical to the work of the ARC and the movement more generally.

43 To interpose again here, senior counsel for AS in his oral submissions confirmed that AS's legal team considered that the forensic value to AS's case of the Red Cross documents was of particular significance by reason of the status and credibility of the ARC.

44 Also in its written outline of submissions, the Commonwealth submitted why the considerations relevant to the public interest in favour of disclosure do not outweigh the substantial risks of serious harm which would arise from disclosure, as follows:

(a) the public interest in the private rights of a civil litigant are unlikely to weigh as heavily as, say, where the liberty of an accused is at stake;

(b) while, at the time of the hearing of the application, the proceeding was styled as a group proceeding, the forthcoming trial was always going to concern AS's claim alone. In its supplementary outline of submissions filed on 30 March 2013 (after the ruling of 27 March 2017), the Commonwealth submitted that the 27 March ruling did not alter the basis upon which the Commonwealth's claims for public interest immunity were advanced, but underscored two of its submissions made in support of those claims, being, first, that the trial is of AS's claims alone, and secondly, given the concerns expressed by J Forrest J in the 27 March ruling concerning the breadth of the evidence going to conditions at Christmas Island generally, the Red Cross documents may be relevant, but not important to AS's claims;

(c) further to the above, the Court would have to be persuaded that the Red Cross documents would be likely to be of major, if not decisive significance to an important aspect of AS's claim, particularly given that the Commonwealth has discovered over ten thousand documents over a two year period; and

(d) finally, any ruling adverse to AS at this stage does not foreclose the possibility of any future application: if it emerged, say, at the trial, that there was a real prospect of important information being available in the disputed documents, a further application could be made.

45 During the course of the hearing of the application, counsel for the Commonwealth relied upon the following propositions in support of the Commonwealth's claim for public interest immunity over the Red Cross documents:

(a) first, there is no need for the Commonwealth to show a form of relationship with government inexorably tied to international parties, or with purely government entities to establish that the documents concern 'matters of State' within the meaning of s 130(1) of the Act;

(b) confidentiality is significant, not only in terms of the confidentiality of the contents of the documents, but also because the need to maintain confidence in government and government related activity is a wellrecognised basis of a claim for public interest immunity; and

(c) the nature of the public interest immunity claim the Commonwealth is making in this application, while not settled in law as a class, is a class that has all of the hallmarks of 'classes' that have been established by the authorities to date.

46 Counsel for the Commonwealth submitted that class claims are usually based upon processes and relationships. Here, the information is not sensitive simply because of what the documents say, but because if there is a disclosure of the Red Cross documents, there will be a perception that the ARC cannot operate in detention centres with the expectation of confidentiality that it previously had, which will have repercussions for its work more broadly. Thus, the Commonwealth advances its claim for public interest immunity on both a 'class' and 'contents' basis.

47 The Commonwealth relied upon a number of authorities to support its contention that the ARC documents could fall within a class deserving of protection by reason of their very character, notwithstanding the Commonwealth's acknowledgement that any party wishing to rely upon a class claim has a heavy burden imposed upon it. In Rogers v Home Secretary,[8] documents disclosing reports to a newly established Gaming Board concerning licence applicants were held to be immune from disclosure on the basis of their 'class'. This decision is also authority for the proposition that certain classes of documents, depending upon the evidence and circumstances, may be found to fall within a 'class' which has not previously received judicial recognition.

48 Counsel for the Commonwealth also relied upon Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2),[9] which recognises that information obtained in confidential circumstances may be subject to public interest immunity by reason of the way in which the information was obtained.

49 Counsel for the Commonwealth made particular reference to the decision of D v National Society for the Prevention of Cruelty to Children ('D v NSPCC'),[10] where the House of Lords found that the NSPCC, an independent body established by Royal Charter exercising statutory functions to prevent the ill treatment and neglect of children, could not be compelled to produce documents which disclosed the source of complaints concerning the conduct of a parent who wished to bring defamation proceedings against the complainant. Counsel for the Commonwealth referred to the parallels between the status of the NSPCC and the ARC, its approval by Australian authorities, including decisions which postdate the enactment of s 130 of the Act, and the acknowledgement by the Court in D v NSPCC that the nondisclosure of the documents would be fatal to the mother's case.

50 Counsel for the Commonwealth also referred to the decision of the High Court in Jacobsen v Rogers,[11] where the Court considered the application of the doctrine of public interest immunity to documents containing information provided to the government in confidence, and submitted that the information in the Red Cross documents is at least as significant as the information in the documents which were found to be immune from disclosure in that case, being documents provided to the state fisheries authority by commercial fishermen concerning their catches.

51 Finally, counsel for the Commonwealth referred to the decision of the Full Court of the Western Australian Supreme Court in Australian Statistician v Leighton Contractors Pty Ltd ('Leightons'),[12] where the applicant wished to obtain and interrogate the raw data collected by the Australian Bureau of Statistics ('ABS') for a by then discontinued statistical series in order to support its damages claim in a civil dispute. Notwithstanding that the data had not been collected for an ongoing series, or for use at the highest level of government, the Court found that disclosure of the raw data would compromise the proper and efficient working of the ABS, which depended upon data being provided to it by businesses voluntarily, if the ABS could not assure survey recipients of the confidential status of commercial information provided to it. Counsel submitted that this decision, by an intermediate appellate court, highlights the importance of preserving relationships of confidence.

52 Turning to the evidence relied upon by the Commonwealth in support of its claim for public interest immunity over the ARC documents, counsel for the Commonwealth submitted that I should give the evidence of Mr Kunz great weight, given his role and position with the ARC. Of particular relevance to the current application is the unique position of ARC in its relationship with government, Mr Kunz's evidence concerning the extent to which the protection of confidentiality facilitates dialogue between the ARC and the government, and the importance of the strength of and trust in the Red Cross 'brand' to the work of the ARC. Ms Cooper's evidence, counsel submitted, builds upon Mr Kunz's evidence to identify how the work of the ARC intersects with the activities of the government, including its foreign relations. Counsel for the Commonwealth submitted that it could not be said that there is not a sufficient governmental connection with the information in the Red Cross documents so as not to fall within the terms 'matters of state' within s 130(1) of the Act.

53 Counsel for the Commonwealth noted that Ms Cooper was a very senior official, and focussed in particular upon paragraph 11 of her affidavit (which is extracted in paragraph 55(b) below). He referred to the two versions of the Royal Charter exhibited to Ms Cooper's affidavit, noting that the ARC was established by decree to be 'representative of Australia'. The most recent version of the Royal Charter illustrates the requirement that the ARC complies with the fundamental principles of the Movement, the ARC's role in the humanitarian sphere, the ARC's role as being 'auxiliary to public authorities', and the corresponding declaration by the government that they will act in a particular way in their dealings with the ARC.

54 AS's written outline of submissions focussed primarily upon the 'foreign relations' aspect of the Commonwealth's public interest immunity claim, unsurprisingly, given the reference to 'foreign relations' in affidavits, submissions, and correspondence. AS's position is summarised in paragraph 4 of the outline:

In summary, the plaintiff says that the defendants' PII (foreign relations) claim is unsustainable because the documents in question do not relate to matters of state, particularly as they relate to entirely domestic matters between the Australian government and an Australian non-government organisation, and in any case, any identified injury to the public interest in relation to Australia's international relations is outweighed by the public interest in disclosure, given the significant likely evidentiary value of the documents covered by the claim and the nature of the interests the plaintiff seeks to vindicate in the proceeding.

55 The written outline of submissions filed on behalf of AS also canvassed the following matters:

(a) the discovery process in the proceeding, and the manner in which the Commonwealth's public interest immunity claims have been pressed and resolved;

(b) AS's assertion that the parameters of the Commonwealth's public interest immunity claim must be confined to those articulated in paragraph 11 of Ms Cooper's affidavit, being as follows:

The Commonwealth makes public interest immunity (PII) claims (for damage to foreign relations) in relation to the ARC Documents on the basis that disclosure of these documents would damage Australia's public interests, as follows:

(a) It would reveal information that was obtained by the ARC in confidence and provided to the Australian Government by the ARC, in confidence, in relation to functions being carried out by the Australian Government.

(b) Such a compromise to these confidences, and the perceived risk of future compromise, would thereby undermine the principles upon which the ARC operates and the effectiveness of its humanitarian work.

(c) This in turn could impact on the operation and effectiveness of other members of the Movement and reduce Australia's ability to be an effective voice amongst States or other members of the Movement in relation to application of humanitarian law, the protection of persons in armed conflict and other such matters.

(d) As a consequence, Australia's international relations and international reputation could be prejudiced.

(c) the Red Cross documents do not concern 'matters of state' within the meaning of s 130(1) of the Act. They are documents of a non-government organisation ('NGO'), or documents discussing ARC reports, or correspondence between government officials and the ARC;

(d) the Commonwealth has failed to demonstrate any prejudice to the 'security, defence or international relations' of Australia. The evidence of Ms Cooper and Mr Kunz, to the extent that they demonstrate any connection between the Red Cross documents and Australia's international relations, do not establish the existence of any likely injury to the public interest in that sphere;

Even if the documents are found to refer to matters of state, and even if the defendants are found to have established an injury to the public interest if they are disclosed, the gravity of the cause of action and the likely significance of the documents in establishing the plaintiff's claim provide strong justification for ordering the disclosure of the documents in any case.

56 Under the heading 'Legal Status of the Australian Red Cross', AS's written outline of submissions made the following observations, in summary:

(a) the establishment and rules of the ARC, including clause 2.3 of the Royal Charter, which provides:

The Society is established, maintained and operated in Australia. The activities of the Society are to be carried out predominantly in Australia.

(b) the evidence of Mr Kunz confirms that the ARC is only affiliated with the ICRC and the Movement, and is not subject to the direction and control of these bodies; and

The description by the defendants of the ARC's visits to detention centres in Australia being "part of its work as part of the [international Red Cross] Movement" likewise cannot cloak the ARC's clearly domestic work with an international character it does not have.

57 Under the heading, 'Effect on International Relations', AS submitted, in summary, as follows:

(a) the Red Cross documents relate to an Australian entity visiting a facility run by the Commonwealth upon Australian territory;

(b) in response to the Commonwealth's contentions that disclosure of the Red Cross documents would adversely affect Australia's foreign relations, AS submits that the notion that the ARC is effectively an international entity, cannot be sustained given the legal status of the ARC. Further, the policy of 'neutrality and impartiality' in the context of the ARC working with the Australian Government in Australian detention centres is quite distinct from that principle as applied by the ICRC in situations of armed conflict; and

(c) in response to the Commonwealth's contention that the disclosure of Red Cross documents in a legal proceeding could cause foreign governments and international organisations to 'curtail their communications with Australia', and threaten Australia's international credibility has 'no foundation in evidence and is fanciful'. To the extent that Mr Kunz's concerns are relevant, these concerns are addressed by the prohibition on the collateral use of documents disclosed during the discovery process.

58 Under the heading 'Relevance to the Issues in the proceeding', AS submits, in summary, as follows:

(a) the Commonwealth concedes that the Red Cross documents are relevant, and, importantly, relevant to the claims of AS; and

(b) Mr Kunz's evidence to the effect that the ARC aims to focus at the 'systemic' level supports AS's expectation that the Red Cross documents 'will potentially be highly probative of the notice and foreseeability of the defendants had of risks of certain types of harm in the detention centres', and may reveal short comings in the systems the defendants to prevent harm and discharge their duties to AS; and

(c) AS expects the Red Cross documents will provide evidence of

... the conditions of detention of the plaintiff and group members at various relevant times, the nature and scope of the defendants' duty of care, the deficiencies in the provision of education to the plaintiff and other detained children who are group members, and the various other breaches of the defendants' duty of care alleged in the Statement of Claim.

59 Under the heading 'Public Interest in Disclosure', AS's written outline of submissions address the following issues:

(a) the significance of the proceeding, being brought by a child in relation to serious physical and psychological injuries said to have been detained, and being part of a group proceeding;[13]

(b) the interests being pursued by AS in the proceeding are largely aligned with the public interest which is said would be injured by the disclosure of the Red Cross documents, being the 'ARC's effectiveness in working to achieve humanitarian outcomes for persons in detention'; and

To the extent that the true basis for the PII claim is to prevent embarrassment to the government for the way the Christmas Island detention centre has been managed, that interest is insufficient to amount to an injury to the public interest. There can be no public interest in the concealment of administrative incompetence.

(d) Mr Kunz's evidence is that some of the Red Cross documents were previously provided to the Commission for the purpose of the Commission's Children in Detention Inquiry.

60 Also in her written outline, AS made reference to this Court's approach to public interest immunity claims made by the Commonwealth in respect of 'foreign relations' documents, and the outcome of my ruling after delivering my reasons in Kamasaae (No 7) in respect of the report prepared by the ARC for the quarter July September 2012. The submissions:

(a) noted that Kamasaee v Commonwealth ('Kamasaee') is a group proceeding alleging negligence and false imprisonment against the Commonwealth and its contractors in relation to their detention on Manus Island. As the Manus Island regional processing centre is in Papua New Guinea, Kamasaee does have a 'foreign relations' element;

(b) referred to the formulation by Macaulay J of the five questions in Kamasaee (No 6),[14] and my adoption of that approach in Kamasaee (No 7);[15]

(c) contended that the five question approach in Kamasaee does not apply here, because the threshold question of whether the documents concern matters of State is not satisfied;

(d) however, if I were to find that the threshold question was satisfied in the current case, then

Based on the foregoing reasons, the answers to those five questions should be:

(a) National sensitivity - No.

(b) Degree of national sensitivity - None.

(c) Evidentiary relevance - Yes.

(d) Degree of evidentiary relevance - High.

(e) Which public interest predominates - Disclosure (PII claim dismissed).

(e) referred to my ruling subsequent to my publication of reasons in Kamasee (No 7), concerning a report by the ARC to the Commonwealth in 2012, as follows:

I accept the evidence and submissions to the effect that there is an expectation by the Australian Red Cross that its reports to the Australian Government will remain confidential, and that any breach of confidentiality, however limited, may jeopardise the willingness of the Australian Red Cross to be frank and open in its communications with the government. However, notwithstanding that the ARC Report covers the period prior to the opening of the detention centre on Manus Island, there are sections of this report concerning offshore detention of unauthorised arrivals to Australia after 13 August 2012 which are directly relevant to the allegations against the first defendant in ... the Statement of Claim. Indeed, parts of the ARC Report are of such substantive probative value with respect to the claims made by the plaintiff that the public interest in the disclosure of selected parts of the ARC Report outweighs the public interest in maintaining confidentiality in those parts of the ARC Report.[16]

Given that the probative value of the ARC Report in Kamasaee No 7 was found to outweigh any injury to the public interest in circumstances where the ARC and the Australian government were operating on foreign territory in Papua New Guinea, it is difficult to see how a PII (foreign relations) claim over similar documents in a proceeding making similar allegations in an entirely domestic context could succeed.

61 The balance of AS's written outline of submissions concerned the questions of the costs of AS's summons filed 14 December 2016. Counsel for the Commonwealth also made oral submissions concerning the question of costs during the course of the hearing. However, I do not propose to deal with the question of costs in this ruling.

62 In his oral submissions during the course of the hearing of the application, counsel for the Commonwealth replied in some detail to the matters raised in AS's written outlines of submissions. These submissions are summarised below.

63 First, in response to AS's contention that the Commonwealth's claim was put forward as a 'foreign relations' claim, counsel for the Commonwealth submitted that the public interest immunity claim is advanced by the Commonwealth based upon all of the evidence: it is partly but not solely referable to potential harm to Australia's foreign relations. Given the public interests involved, the Commonwealth cannot be confined to 'pleadings'.

64 Further, s 130(4) does not, by reason of its terms, contain an exhaustive list of factors which confines what might be considered to be matters of state: the Commonwealth relies upon s 130(4)(a), (e), and (f), but not exclusively. In relation to s 130(4)(f), the relevant government function includes administering detention centres in accordance with Australia's participation in the humanitarian sphere.

65 Counsel for the Commonwealth noted that AS has sought the documents from the Commonwealth because what AS wants to establish is the Department's receipt of the ARC documents. Mr Kunz's evidence established the ARC's concern for the interest of detainees as a whole, and his concerns that the disclosure of information to assist a single plaintiff could compromise the interests of the broader class of detainees.

66 Counsel for the Commonwealth rejected the contention that its public interest immunity claim was being pressed to prevent the release of documents embarrassing to the Commonwealth: this assertion is inconsistent with the roles and evidence of the deponents of the affidavits relied upon by the Commonwealth, and the extraordinary amount of detailed information which has been provided by way of discovery.

67 Turning to the question of the public interest in disclosure, counsel for the Commonwealth emphasised that mere relevance is not enough to overcome the public interest in maintaining confidentiality in the ARC documents. There is a distinction between relevance in the discovery context, and utility in a forensic sense. What AS must demonstrate is that not only does the public interest in disclosure exist, but it is sufficiently profound to warrant the harm to the public interest of disclosure. Counsel submitted, while acknowledging the difficulty under which AS's legal team labours in an application such as this, that given the looming trial date, they should be in a position at this stage to articulate why the information is important, rather than just relevant. Counsel for the Commonwealth asked, rhetorically, what is 'game changing' about the ARC documents?

68 Counsel for the Commonwealth took me to a number of documents identified in the draft court book index served by AS's solicitors, including the report of the Commission referred to in paragraph 19 of these reasons, being the report titled 'The Forgotten Children: National Inquiry into Children in Immigration Detention 2014' ('AHRC Report'), and the Department's submission to the Commission with respect to the issues canvassed in that report. Other documents referred to included various reports concerning the operations of and conditions at the detention centre by the Commission, ministerial advisory groups and visiting health professionals, including a report prepared by a witness to be called by AS. Counsel for the Commonwealth queried how the Red Cross documents could be so different from the material already available so as to outweigh the public interests deposed to by Mr Kunz and Ms Cooper.

69 Counsel for the Commonwealth submitted that the Commonwealth accepts that the administration of justice is an important public interest, and AS's claim is a significant cause of action in significant circumstances. He accepted that some of the Red Cross documents have been provided to the Commission: Mr Kunz's evidence goes to the lengths gone to, to preserve the confidentiality of the Red Cross documents provided to the Commission. Further, counsel noted, there is an obvious distinction between the provision of information to the Commission, which is a statutory body itself subject to secrecy provisions, and disclosure in private litigation.

70 Counsel for the Commonwealth repeated his submissions that the Commonwealth was proceeding on the basis that the Red Cross documents were not being sought to be relied upon because they are documents produced by the ARC: if they were being sought for that purpose, that would underscore the public interest against disclosure, because AS would be seeking to coopt the neutrality, independence and neutrality which is so important to the ARC 'brand'.

71 Finally, counsel for the Commonwealth submitted once again that the extensive documents already available to AS through the discovery process puts into some context the question of whether the Red Cross documents are so important to AS's claim that the public interest should be imperilled. It has not been shown that the Red Cross documents include decisive documents. In any event, the decision in D v NSPCC recognises that public interest immunity is one of a number of privileges attaching to otherwise discoverable documents, and that upholding of a public interest immunity claim is not of itself a travesty of justice or unfairness that a court would never entertain or recognise.

72 In reply to the contentions advanced by the Commonwealth, senior counsel for AS submitted that it is critical to focus upon the language of s 130 of the Act. The fundamental requirement of s 130(1) is that to attract the privilege, the documents must concern matters of state. Senior counsel referred to the decision of the Court of Appeal in Royal Women's Hospital v Medical Practitioners Board of Victoria,[17] ('Royal Women's Hospital') where the Court was invited to recognise a new class of protected documents, being patient medical records held by the hospital. However, the hospital failed at the threshold, in that the Court of Appeal found that the documents did not concern matters of state, or a governmental function, but rather, the records concerned the provision of a private service. Senior counsel for AS also referred to the decision of Holloway v Commonwealth,[18] as an example of the practical application of determining whether particular documents or classes of documents could attract the application of the balancing exercise under s 130 of the Act.

73 Senior counsel for AS submitted that the real question is whether the Red Cross documents fall within the terms of s 130(1), that is, do they concern 'matters of state'. The ARC is an independent, nonstatutory, nonprosecutorial, domestic body, subject to Australian law. To the extent that the Commonwealth relies upon 'damage to foreign relations' to found its claim for public interest immunity, the dictionary definition of 'international relations' refers to relations between nation states. 'Foreign relations' do not encompass Australia's relationships with domestic entities, or even with an international NGO. There may well be NGOs which have formal affiliations with the United Nations, but it could not be said that the ICRC is analogous to a foreign state. Section 130(4)(a), by reason of its reference to 'prejudicing security, defence and international relations' is concerned with Australia's relations with other nations, including how we defend and protect ourselves, and how we frame and maintain good relations with other countries.

74 As for the Commonwealth's reliance upon s 130(4)(e) of the Act, at the heart of this must be matters of state: the authorities relied upon by the Commonwealth all concern the protection of sources of confidential information concerning prosecutorial, policing, and investigatory functions. In D v NSPCC, the society had a statutory mandate and prosecutorial function connected with the protection of children: the thrust of s 130(4)(e) is to ensure that these functions of the state are not undermined by the disclosure of confidential sources relating to the administration and enforcement of the laws of the Commonwealth or a State. In response to my comment that the use of the word 'administration' potentially confers a broader scope of protection than if the section was limited to the word 'enforcement', senior counsel for AS agreed that the language of the section covered facilitative conduct (such as, say, monitoring child protection placements) as well as enforcement activity, but submitted that the protection afforded by s 130(4)(e) is limited and focussed: it does not offer a broad based protection of confidential relationships which might, if breached, cause consternation about the operation of the ARC or ICRC.

75 Senior counsel noted that AS is not interested in learning of the identity of the source of any confidential information received by the ARC, and is content for the Red Cross documents to be redacted to mask the names of detention centre staff or detainees.

76 As for the Commonwealth's reliance upon s 130(4)(f) of the Act, senior counsel for AS submitted that there needs to be clear evidence that the functioning of the government is going to be prejudiced by the Red Cross documents being disclosed. Here, what the Commonwealth is pressing for is the creation of a class, which is novel, and not to be lightly done. It would be novel to protect information provided to an NGO which in turn provided information to the government: such a step would have the potential of significant bodies of information being withheld from fact finding tribunals generally, not just this Court.

77 The primary submission of AS is that the Court does not need to engage in the balancing exercise required by s 130 of the Act, because the Red Cross documents do not concern matters of state. However, if, contrary to AS's submissions, I did find that the Red Cross documents concerned matters of state, senior counsel for AS submitted that the following matters were relevant in undertaking the balancing exercise under s 130(5) of the Act;

(a) the importance of the Red Cross documents to the issues in this proceeding. Senior counsel submitted these documents are 'enormously important', as they record information derived from inspections undertaken by the ARC pursuant to the Royal Charter, and they record constructive recommendations to government. The Red Cross documents may refer to matters which are fundamental to the issues traversed by AS in her statement of claim, such as the reasonable foreseeability of harm, the scope of the Commonwealth's duty of care, and any breach of duty;

(b) senior counsel for AS submitted that it was important to AS's case that the documents were authored by the ARC. The ARC is special, having a particular selfimposed, selfgenerated mandate and expertise. The Red Cross documents will evidence what the Commonwealth was and was not told about conditions in the detention centre;

(c) senior counsel for AS submitted that what information which might be available from other sources does not detract from the importance of the information available in the Red Cross documents. Also, the Red Cross documents extend into a period not covered by the other reports;

(d) in relation to the Commonwealth's submissions concerning the importance of keeping the Red Cross documents confidential, senior counsel for AS submitted, to the contrary, the ARC has a mandate to scrutinise what takes place behind what otherwise might be high walls. Given the concession made by AS concerning the redaction of the parts of the Red Cross documents which identify individuals, there should be no concern about the privacy of, or risk of retribution to, individuals; and

(e) the stakes in the current litigation are high: while it is a civil proceeding, it is dealing with highly important issues of human rights, and concerns potentially significant harms having been inflicted on individuals, including upon children, by the way the detention centres have been operated.

78 Senior counsel for AS submitted that the high level of importance of the information, balanced against the nebulous and diffuse assertions concerning the impact of their disclosure upon the functions of government, means that the Red Cross documents ought to be disclosed. The Commonwealth has placed great weight upon the evidence of Mr Kunz and Ms Cooper: their assertions need to be carefully scrutinised, as they use very qualified language, they are conjectural, and the reasoning behind their apprehensions is less than clear. Accordingly, in the balancing process, we have, on AS's part, something specific and concrete, against, on the Commonwealth's part, hypothetical anxieties and conjecture.

79 Finally, counsel for AS submitted, given that the connection between the Australian government, the ARC and international relations is far removed, I should make a finding that s 130 of the Act is not enlivened, but if it is, the balancing exercise favours disclosure.

80 In reply, counsel for the Commonwealth noted that the Commonwealth's claims for public interest immunity were never confined to a foreign relations claim: the Commonwealth seeks to protect government activity which requires the preservation of relationships of confidence.

81 As for the question of whether the Red Cross documents concern matters of state: the construction of s 130(4) is intended to be informed by the common law, and, as under the common law, the section permits the development of new classes of documents worthy of protection. The decision of the Court of Appeal in Ryan v State of Victoria[19] ('Ryan') demonstrates the ongoing relevance of D v NSPCC, and in the case of Ryan, the Court of Appeal rejected the proposition that s 130(4) should be confined to documents concerning deliberations at the highest level of executive government.

82 Counsel for the Commonwealth noted the reliance by senior counsel for AS on the dictionary definition of 'international relations' as referring to relations between nation states: this narrow definition ignores the reality that in the international sphere, relationships exist at many levels, for example, as between intelligence agencies.

83 Counsel for the Commonwealth referred to the statement of the High Court in Jacobsen v Rogers[20] to the effect that public interest immunity reflects fundamental public policy, which would take the clearest of language to abrogate. He noted that s 130(4)(e) refers to the administration of legislation, not just the enforcement of legislation.

84 Counsel for the Commonwealth submitted that the decisions of Ryan and Leighton Contractors illustrates the breadth of s 130(4)(f) of the Act. The latter decision related to the functioning of government in relation to the economy: in the current case, the Court is concerned with the functioning of the government in relation to detention centres, and border security generally. What AS is seeking are confidential government documents, received by the government in circumstances of confidentiality, for the purposes of government, and in circumstances where the government is required to keep faith with the expectations of international bodies. That is ample to establish that the Red Cross documents concern matters of state.

85 Counsel for the Commonwealth also relied upon the potential ramifications of disclosure for the government's international relations, administration of detention centres, and its ability to abide by its obligations under the Royal Charter. He also pointed to the particular nature and role of the ARC, having been established by Royal Charter, having functions 'auxiliary to' public authorities, and operating in a space which is of obvious public interest, addressing humanitarian concerns relating to the operation of detention centres.

86 As for the public interest in disclosure, counsel for the Commonwealth submitted that at no point has AS explained why the Red Cross documents would contain information not already available to them: no big gap has been identified. Further, it has been confirmed that AS does seek to rely at trial upon the Red Cross 'brand'. However, the ARC does not have a 'selfimposed mandate': its work is inexorably tied to the Movement by the terms of the Royal Charter.

87 Finally, in relation to AS's criticisms of the evidence relied upon by the Commonwealth, counsel for the Commonwealth submitted that the use by deponents of cautious or qualified language should not be held against them: that is inevitable when questions of future risk arise. Counsel noted that the authorities provide that a risk of harm is, in fact, of itself injurious to the public interest.[21]

88 The evidence and submissions advanced and relied upon by the parties, summarised at some length above, exposes the complexities in some aspects of this application, including, but not limited to:

(a) the question of whether documents prepared by an NGO, albeit for the purpose of making reports and recommendations to government, could be protected (either as a class, or by reason of their contents) as concerning 'matters of state';

(b) whether, subject to my determination in relation to (a) above, the Commonwealth has discharged the (substantial) burden imposed upon it to establish that the Red Cross documents, or perhaps more precisely, reports of the ARC to the Department concerning conditions in Australian detention centres, are a class of documents deemed worthy of protection, such that documents within that class would be prima facie protected from disclosure;

(c) given that the Commonwealth has made a claim for public interest immunity over the Red Cross documents on both a 'class' and a 'contents' basis, the practical distinction for the purpose of the current application; and

(d) in the event that it is necessary to engage in the balancing exercise required by s 130 of the Act, the range of matters relevant to that balancing exercise, including, by way of example, the following matters:

(i) the role, status and functions of the ARC, which are the subject of contrasting submissions by both parties;

(iii) the forensic importance of the Red Cross documents to AS's case: are they, as I said in Kamasaee No 7,[22] documents of 'crucial importance', being

documents of such substantial or probative value such that the failure of the Commonwealth to disclose the documents ... would deprive the plaintiff of information which would substantially limit his ability to prove his case at trial, or are centrally relevant to an issue in the proceeding;

(iv) whether AS already has access to sufficient information as to enable her to advance her case at trial, such that access to the Red Cross documents will merely supplement the evidence currently available to AS, rather than fill a fundamental gap in the evidence;

(v) the relevance of the (limited and restricted) disclosure of the Red Cross documents in the past; and

(vi) the weight to be given to the evidence of Mr Kunz and Ms Cooper, given the reliance upon that evidence by the Commonwealth, and the criticisms made of that evidence by senior counsel for AS.

89 Prior to turning to each of these issues in turn, both parties have relied upon the substantial body of case law concerning the nature and application of the doctrine of public interest immunity. I do not take the parties to be in dispute concerning matters of principle: rather, the dispute concerns their application to the current case. A useful summary of the relevant principles is to be found in the decision of Derham AsJ in Matthews v SPI Electricity Pty Ltd & Ors (No 11),[23] as follows (omitting citations):

(a) The content and operation of s 130 of the Evidence Act is informed by the common law;

(b) The common law recognises a "rough, but acceptable" division of public interest immunity claims into "class" and "contents" claims;

(c) Documents can be immune from disclosure on the basis of their class because their disclosure would injure the public interest, irrespective of the actual contents of the documents;

(d) Documents that do not belong to such a class may still be immune from disclosure, on the basis that their contents, if disclosed, would injure the public interest;

(e) A claim in respect of a class of documents is, by its nature, general and that claim will normally be upheld if the class is one that is recognised as being, prima facie, subject to public interest immunity;

(f) It is well recognised that the proper working of government relies on ministers and other senior servants of the Crown being able to engage in policy development and decision-making on the basis that their deliberations are kept confidential and that the convention of collective responsibility for government decisions is maintained. Documents that could disclose such deliberations fall within a class that attracts the public interest immunity;

(g) governmental processes directed to obtaining a Cabinet decision upon a matter of policy and Cabinet's decision upon that matter should not, in the public interest, be disclosed by the production of Cabinet papers, including papers which have been brought into existence within the governmental organisation for the purpose of preparing a submission to Cabinet. Such papers belong to a class of documents that are of a nature that ought not to be examined by the Court, except in very special circumstances;

(h) Cabinet documents extends to -

(i) Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments;

(ii) papers prepared as submissions to Cabinet;

(iii) any documents which relate to the framing of government policy at a high level;

(i) immunity from disclosure is not automatically accorded to documents falling within such a class claim. There is no absolute immunity from production and inspection of Cabinet documents. The court must still weigh the public interest in the proper functioning of government with the public interest in the proper administration of justice whereby all relevant documents are available to a party seeking to litigate a claim;

(j) In weighing the competing public interests under s 130 of the Evidence Act, the Court is required to give weight to the assertion of a responsible representative of government that there is a public interest, which would be placed in jeopardy by the production of the document;

(k) In order for the public interest in the administration of justice to arise in the balancing process, the documents must contain _'_material evidence'. Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions;

(l) In civil cases it will only be where exceptional circumstances give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it would be necessary or appropriate to order production of the documents to the Court;

(m) Where such exceptional circumstances exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure;

(n) The judge ought not to order the disclosure of the contents of documents recording Cabinet deliberations unless the judge is satisfied that the material is crucial to the proper determination of the relevant proceeding;

(o) Even though years may have passed since a relevant document was brought into existence, and government may have changed, it does not follow that the matters that are the subject of such documents have ceased to be current or controversial;

(p) Documents recording the actual deliberations of Cabinet are more likely to attract immunity than documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet. They have 'a pre-eminent claim to confidentiality';

(q) Other documents including 'papers brought into existence for the purpose of preparing a submission to Cabinet' and 'documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet' are recognised classes prima facie entitled to protection on the grounds of public interest immunity; and

(r) Documents relating to a topic that is current or controversial will attract a high level of confidentiality.

90 His Honour also referred to the decision of John Dixon J in Murdesk Investments Pty Ltd v Secretary to the Department of Business & Innovation,[24] which sets out other relevant matters for consideration in the balancing exercise, other than those listed in s 130(5), as follows:

(a) whether a representative of government has supported nondisclosure of the information or document;

(b) the subject matter of the information or document, for example, whether it relates to national security or, on the other hand, commercial matters;

(c) whether the information or document relates to Cabinet deliberations or lower levels of government;

(d) whether the information or document has contemporary importance or is only of historical interest; and

(e) whether the information or document was required on the basis that it would be kept confidential

91 Further to the above, from the authorities referred to by the parties, I have distilled the following principles of particular relevance to this application, in summary, as follows:

(a) while the burden upon a party seeking to establish a new 'class' of documents, is heavy, it is not a burden which is impossible to discharge. As stated by Lord Salmon in Rogers v Home Secretary:[25]

This immunity should not lightly be extended to any other class of document or information, but its boundaries are not to be regarded as immutably fixed. The principle is that wherever it is clearly contrary to the public interest for a document or information to be disclosed, then it is in law immune from disclosure. If a new class comes into existence to which this principle applies then that class enjoys the same immunity. When the Gaming Board sprang to life a new class of documents and information came into existence...

(b) the recent decision of the Court of Appeal in Ryan[26] highlights the ongoing relevance of the decisions concerning the common law test for public interest immunity, including, for present purposes, D v NSPCC;

(c) the substantial weight to be given to the evidence advanced in support of claims for public interest immunity;

(d) the authorities are not quite settled on the question of whether the Court should inspect the documents. It seems that the traditional approach was that if the claim was a 'class' claim the Court ought not, and usually would not inspect the documents, while if it was a 'contents' claim, it ordinarily would inspect the documents;

(e) it is sufficient, in order to establish that harm to the public interest will arise from disclosure, for the party claiming the immunity to adduce evidence of a 'real risk' of the harm, and that 'real risk' may encompass the creation of a risk that falls short of having a fifty per cent chance of eventuating;[27] and

(f) while I doubt that whether documents which are subject to a claim for public interest immunity refer to matters which are 'current or controversial', is determinative of the matter, this may be a relevant consideration.[28]

92 Of particular relevance to the current application, along with the decision of the House of Lords in D v NSPCC, are the decisions of the Court in Appeal in Ryan, and the decision of the Full Court of the Supreme Court of Western Australia in Leightons. In Ryan, the Court of Appeal was concerned whether internal documents of Victoria Police concerning the operational tactics of the Mounted Branch attracted public interest immunity. Tate JA conducted an extensive survey of the authorities concerning public interest immunity both at common law and under s 130 of the Act, and held, relevantly, as follows:

(a) the categories of public interest are not closed;[29]

(b) the considerations a court will have regard to in the balancing exercise:

... These include whether non-disclosure would impede the accused's right to a fair trial, the evidentiary value and importance of the documents to the issues, whether ordering disclosure would cause sources of information to 'dry up', whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain or has current sensitivity. The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure. (citations omitted)

(c) the close connection between the common law principles and the statutory immunity, including the maintenance of the distinction between 'class' and 'contents' claims;[30]

(d) in a 'contents' claim, the court is obliged to inspect the relevant documents in order to form a view as to whether any damage might result from their disclosure;[31]

(e) the reference to 'relates to matters of state' in s 130(4) are 'words of considerable breadth', although there must be a 'more than incidental connection' between the information sought to be protected and the matters of state relied upon;[32]

(f) her Honour referred to the decision of Spigelman CJ in R v Young,[33] and in particular to the statement that:

Public interest immunity arises because of the need to safeguard the proper functioning of the executive arm of government and of the public service; (emphasis added)

(g) it was noted that Royal Women's Hospital was decided before the enactment of the statutory immunity, and observed that the general requirement in s 130(1) that the information 'relate to matters of state' extends beyond deliberations at the highest level of executive government.[34] Rather, it is the effect of disclosure upon the proper functioning of government rather than the level of sensitivity of the information which is all important; and

(h) the distinction, in the context of the balancing exercise, between 'relevance' and 'importance'.[35]

93 Another authority of particular relevance to the current application, by reason of its application of the relevant principles, is the decision in Leightons.[36] As noted above, the Full Court of the Supreme Court of Western Australia held that raw data provided to the ABS by survey respondents was protected from disclosure, in that: the disclosure of the information for the purposes of the litigation in question:[37]

would, or had significant potential to, seriously damage the workings of the Statistician and ABS ... Such an outcome would impair the efficient or proper functioning of the Australian Government in the management of, inter alia, the economy. The evidence relating to the need for maintaining confidentiality is consistent with the statutory framework in which the statistician and the ABS operate. The importance of confidentiality in establishing and maintaining the trust and confidence of the pool of actual and potential respondents is the basis for the onerous requirements in the Statistics Act. On any view of the proper scope of public interest immunity, the appellant's class claim has a sufficient connection with governmental function.

94 Leightons is also authority for the proposition that 'the incurring of the identified risk is itself injurious to the public interest',[38] and that a confidentiality or limited disclosure regime is no substitute for refusing disclosure.[39]

95 Turning now to the resolution of the issues in this application, I make the following findings, in summary:

(a) the Red Cross documents relate to matters of state within the meaning of s 130(1) of the Act, in that they inform the proper functioning of the Commonwealth's management of detention centres;

(b) the Red Cross documents are worthy of protection as a 'class', insofar as their disclosure will prejudice the public interest, regardless of their contents. It is in the public interest (and, for that matter, the interests of detainees) for the ARC to be able to make full and frank observations and recommendations to Department concerning a significant and often controversial area of government activity, being the Commonwealth's management of immigration centres, and that disclosure of the Red Cross documents would prejudice the public interest. In that regard, I have accepted the evidence of the deponents of the affidavits relied upon by the Commonwealth, in particular the very focussed evidence of Mr Kunz;

(c) further to (b) above, I accept that disclosure of the Red Cross documents has the potential to harm Australia's foreign relations;

(d) while I have determined that the Red Cross documents are entitled to protection as a 'class', rather than merely by reference to their contents, I decided to inspect the Red Cross documents, on the basis that, while they do warrant protection from disclosure as a class, it is not a wellestablished class, such as Cabinet documents, and, given the powerful competing interest in the administration of justice, inspection of the Red Cross documents was necessary to undertake the balancing exercise required by s 130 of the Act;

(e) in evaluating the public interest in disclosure, being the public interest in the administration of justice, I agree that the proceeding is a significant civil proceeding, particularly given that it concerns allegations that a child has been illtreated. Further, I accept that the Red Cross documents are likely to be directly relevant to the issues in dispute;

(f) as for the question of the role and standing of the Red Cross, in my view, the submissions of both parties have merit. On the Commonwealth's side, I agree that the singular and 'special' role of the ARC (and by extension, the Movement) is a relevant factor in determining whether undermining the confidentiality of the relationship of confidence between the ARC and the Commonwealth would prejudice the public interest. On the other hand, I also accept that the experience, functions, and credibility of the ARC is likely to enhance the potential forensic value of the Red Cross documents to AS at trial; and

(g) in undertaking my analysis of individual documents, I have not undertaken the five step methodology utilised in Kamasaee (No 6) and Kamasaee (No 7). Given my finding that the Red Cross documents are entitled to protection as a class, the public interest in nondisclosure is by definition 'high'.

96 To elaborate further upon my findings as summarised in the paragraph above, in relation to the question of whether the Red Cross documents concern 'matters of state', it is clear from both the evidence, and confirmed by my inspection of the Red Cross documents, that the information and recommendations are targeted directly at the Commonwealth's operation of detention centres. While in my view, it is not necessary that the documents fall neatly and precisely within one of the categories set out in s 130(4) of the Act, the Red Cross documents do concern the functioning of government, being its operation and management of detention centres. Further, while the Court of Appeal in Ryan makes it clear that it is not necessary for the purpose of s 130 of the Act that the information concerns the functioning of government at the highest levels, I note that the Red Cross quarterly reports are in fact sent by the CEO of the Red Cross to the Secretary of the Department and the relevant minister. Accordingly, while the Red Cross documents refer to in some detail what might be regarded as operational issues within detention centres, as well as matters of 'policy', the audience of at least a subset of the Red Cross documents are in fact high ranking government officials. Further, while this is not, of itself, determinative of the matter, the Red Cross documents not only concern the functioning of government, but also concern matters which remain topical, and controversial, such that the Red Cross documents could not be said to be of mere historical interest only.[40] Finally, I do not consider the relatively limited disclosure of the Red Cross documents to the Commission warrants finding that there is no need for ongoing protection of the confidentiality of the Red Cross documents.

97 In this application, both parties rely upon the 'special' status of the ARC, for different purposes. I consider that the establishment of the ARC by Royal Charter, its status as 'auxiliary to public authorities', and the commitment by the Australian Government in the supplemental Royal Charter to 'respect the adherence by the [ARC] to the Fundamental Principles' of the Movement elevates the status of the ARC beyond that of just another NGO. It was recognised by the House of Lords in D v NSPCC that an NGO could, in effect, exercise governmental functions. It is true that, unlike the NSPCC, the ARC does not have conferred upon it statutory powers, but it could be said that the Royal Charter provides clear recognition by the executive branch of government of the status and functions of the ARC.

98 That 'matters of state' need not be restricted to deliberations at the highest level of executive government is not only confirmed by the Court of Appeal in Ryan, but is also aptly illustrated by Leightons. In Leightons, any intrusion upon the relationships of confidentiality between the ABS and survey respondents concerning commercial information in the construction industry was considered to be contrary to the public interest by reason of the potential damage to the government's management of the economy. Clear parallels exist with the current application, given that the collection of commercial information for statistical purposes, could hardly be considered to be 'highlevel' executive activity. Again, as with D v NSPCC, it could be said that Leightons is distinguishable from the current case, in that the ABS had a statutory mandate to collect and preserve the confidentiality of statistical information. However, if one looks at the role, status and responsibilities of the recipient of the information contained in the Red Cross documents, being the Department, the operation by the Department of detention centres is clearly a governmental function. While the Migration Act 1958 (Cth) ('Migration Act') does not prescribe how the Department should manage detention centres, s 176 of the Migration Act presupposes the existence of immigration detention centres, by stating as follows:

This Division is enacted because the Parliament considers it is in the public national interest that each non-citizen who is a designated person should be kept in immigration detention until he or she:

(a) leaves Australia; or

(b) is given a visa.

99 The definition of 'Immigration Detention' in s 5 of the Migration Act includes 'a detention centre established under this Act'.

100 Section 273 of the Migration Act provides that the relevant Minister may 'on behalf of the Commonwealth, cause detention centres to be established and maintained', and provides for regulations to be made in relation to the operation and regulation of detention centres. My brief searches have not located any such regulations, but the establishment, operation and management of detention centres are clearly a governmental function, such that reports by the ARC (and possibly others) to the Department concerning conditions at detention centres, with the intention that the Department respond to or act upon the issues raised in these reports, concern matters of state within the meaning of s 130 of the Act.[41]

101 Further, as noted above, I accept the submissions of the Commonwealth that the Red Cross documents warrant protection as a class, such that any disclosure of the Red Cross documents would be prima facie injurious to the public interest. I accept without reservation the evidence of Mr Kunz concerning the importance of confidentiality to the ability of the ARC to work with government concerning humanitarian issues arising in detention centres. That evidence is confirmed by my inspection of the Red Cross documents: the ARC's observations and recommendations are presented in a forthright and candid manner. I accept that disclosure of the Red Cross documents in private litigation, while not of itself undermining the relationship and trust and confidence between the Department and the ARC, could have a 'chilling effect' upon the Red Cross' preparedness to express its observations and views in the way it currently does, secure in the knowledge that its communications with the Department are in confidence. That, in turn, given the sensitive and important work the ARC does in detention centres, would be contrary to the public interest (which I have no hesitation in extending to the interests of detainees, notwithstanding they are not citizens or legally resident in Australia) in ensuring that the role of the Commonwealth in operating detention centres is fully informed by humanitarian considerations, which are highlighted and pressed very directly and bluntly by the ARC in the Red Cross documents.

102 Further, I also accept the evidence of Mr Kunz and Ms Cooper as to the potential adverse effect of disclosure upon foreign perceptions of the Australian Government, should it be seen not to be protecting the confidentiality and neutrality of the ARC. I do not accept the contentions on the part of AS that 'foreign relations' or 'international relations', at least for the purpose of s 130(4)(a) of the Act, can be confined to relationships between the Australian Government and other nation states. After all, there are many significant supra-national entitles or international non-governmental organisations which are influential actors in world affairs, whether it be in economic matters (such as the International Monetary Fund or the World Bank), or humanitarian matters (such as the Movement, which has special recognition in the 1948 Geneva Convention), or global health (such as the World Health Organisation). To confine the operation of s 130(4)(a) in the manner contended for by AS would artificially exclude from the operation of s 130 information potentially injurious to Australia's relationships with significant international nongovernmental entities. While I doubt that s 130(4)(a) would extend to Australia's relationship with all foreign NGOs, such as private charities, the commitment by the Australian Government in the Royal Charter to respect the fundamental principles of the Movement, and to facilitate the work of the ARC does confer upon the ARC, and the Movement, special status in Australia's foreign relations.

103 It could be argued that, to the extent that disclosure of the Red Cross documents may impede the work of the ICRC or other members of the Movement in other countries, then that does not directly concern the Australian public or the Australian Government. I would not construe the term 'public interest' so narrowly. Given Ms Cooper's evidence to the effect that the 'role of the Movement as a whole and of its members aligns closely with the Australian Government's foreign policy objectives in the international humanitarian law arena', and there being a 'close partnership' between constituent bodies of the Movement and their respective governments, I accept that to the extent that the actions (or inactions) of the Australian Government could be seen to be unsupportive of, or to be undermining, the work of the ARC, and to the extent that there are 'flow-on' effects to other members of the Movement, this has the risk of detracting from Australia's reputation and effectiveness in the humanitarian sphere at the international level. However, the primary basis for my determination that disclosure of the Red Cross documents would be contrary to the public interest would be the risk that disclosure would impede the ARC's willingness and ability to provide frank and fearless advice to the Department concerning humanitarian issues in detention centres.

104 The practical consequence of my finding that the Red Cross documents are a protected 'class' is that it is arguably not necessary to undertake a document by document analysis in order to determine whether disclosure of the Red Cross documents would be injurious to the public interest: it is presumed that there would be such harm, and that the harm would be significant. However, that finding does not relieve the Court of its obligations to undertake the balancing exercise required by s 130 of the Act. While in the past the courts may have been predisposed against inspection of documents for which a 'class' claim has been successfully made, it seems to me to be difficult, save in the clearest of cases (such as applications in respect of Cabinet documents, or documents concerning critical issues of national security) for the Court to fulfil its obligations under s 130 of the Act without inspecting the documents. In particular, inspection is helpful, if not necessary, to establish the potential forensic value of the documents to AS in the forthcoming trial. Further, as noted in Kamasaee (No 4), a finding that a class of documents is worthy of protection is not the end of the matter:

the predominant need for protection still requires consideration of its relevant circumstances, in particular the subject matter of the document and its currency.[42]

105 The appropriateness of the Court inspecting documents subject to a claim for public interest immunity based upon their class was considered by the High Court in The Commonwealth v Northern Land Council,[43] as follows:

In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that 'disclosure would not really be detrimental to the public interest' only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality. To inspect the contents of documents as a matter of course would be to disregard the basis of the immunity for a document falling within the class described. The apparent dilemma is, we think, to be resolved by recognizing that the classification of claims for immunity into 'class' claims and 'contents' claims is indeed often rough and imprecise. In many socalled 'class' cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals, particularly if it is no longer current or controversial.

106 For completeness, in the determination of the applications in Kamasaee which resulted in the rulings in Kamasaee (No 4), Kamasaee (No 6) and Kamasaee (No 7), the Court inspected the documents over which the Commonwealth had made a public interest immunity claim, notwithstanding that a significant sub-set of those were documents being subject to class claims, such as diplomatic cables.

107 Having inspected the Red Cross documents, I would make the following observations concerning the Red Cross documents:[44]

(a) as noted above, the Red Cross quarterly reports are provided to high level government officials, consistently with the evidence of Mr Kunz concerning the confidential treatment of these documents. All of the Red Cross documents prepared by the ARC are designated as 'Confidential' or 'In Confidence';

(b) some of the Red Cross documents are not relevant, or at least only tangentially relevant to the issues in this proceeding (such as reports concerning visits to Darwin Airport Lodge);

(c) the Red Cross documents, particularly the quarterly reports and reports concerning visits to Christmas Island, and the Department's responses to these reports, do contain information directly relevant to the issues in the proceeding, including conditions in the detention centre;

(d) other issues in the proceeding which are the subject of the Red Cross quarterly reports and other reports include:

(i) conditions for women in the detention centre, including, specifically, pregnant women and new mothers;

(ii) conditions and facilities for children in the detention centre, including access to education;

(iii) issues concerning family separation; and

(iv) access to health services, including mental health services;

(e) while there is undoubtedly relevant material in the quarterly reports and other reports prepared by the ARC, it should be noted that much of the information contained in these reports is repeated from report to report. While that of itself may be of some forensic value to AS, the actual volume of information that is being withheld from AS by reason of this ruling is not as substantial as one might think given the number of documents involved; and

(f) as for the documents over which a claim for partial public interest immunity is claimed, three of the documents are not directly relevant to the issues in the proceeding, such that they were probably not discoverable in the first place, and two documents concern the drafting of the Department's response to one of the ARC quarterly reports, which I considered are immune from disclosure on the same basis as the remainder of the Red Cross documents.

108 The balancing exercise is not an easy one. The Commonwealth, quite rightly, has not shied away from the fact that the Red Cross documents, or at least some of them[45] contain information which is materially relevant to the claims made by AS in the proceeding. The issue requiring resolution is whether the public interest in AS having access to these documents is outweighed by the public interest in protecting the relationship of confidence between the ARC and the Commonwealth?

109 In my view, the public interest in protecting the confidentiality of the Red Cross documents outweighs the public interest in disclosure of the documents to AS. Any potential 'chilling effect' upon the ability of the ARC to communicate fully and frankly with the Department with respect to concerns about humanitarian matters in detention centres runs the real risk of compromising the very important work the ARC does, and has yet to do in detention centres. Given the ongoing controversy concerning Australia's border protection policies and the conditions in which unauthorised arrivals are detained, the Red Cross documents cannot be said to be of mere historical interest, nor can it be said that the impact of any disclosure of the Red Cross documents would be isolated. Notwithstanding this is no longer a group proceeding, it is a proceeding which, if it goes to trial (and one must assume it will), will attract substantial public and media interest. Senior counsel for AS has confirmed that it is the intention of AS's legal team to rely upon the Red Cross documents at trial, in part by reason of their being authored by the ARC. The likelihood of the disclosure of the Red Cross documents to AS in this proceeding 'slipping under the radar' are, in the circumstances, quite slim.

110 On the other hand, having reviewed in some detail the documents referred to by the Commonwealth during the course of the hearing, being documents referred to in the draft court book index prepared by AS's solicitors, it is apparent that AS's legal team has had access to a substantial amount of highly relevant and authoritative information concerning issues in the detention centres, and specific concerns regarding the wellbeing of women and children in detention centres.

111 While I have not done a close side by side or word by word comparison of the Red Cross documents and the discovered documents referred to by the Commonwealth, it is apparent from my inspection of these documents that, while there might be differences in the level of detail, and the language and emphasis of the Red Cross documents and the discovered documents, there was nothing in the Red Cross documents which struck me as being startling or new. My inspection of each set of documents confirms the Commonwealth's submissions that there is no obvious gap in the evidence available to AS which would be filled by the disclosure of the Red Cross documents. As such, the Red Cross documents are not likely to be crucial to AS's case.

112 Senior counsel for AS relied upon my ruling after the delivery of my reasons in Kamasaee (No 7), where I ordered that a (heavily) redacted version of a report prepared by the ARC be produced to the plaintiff in Kamasaee.[46] However, as I indicated during the course of the application, which was confirmed by the evidence and submissions relied upon by the Commonwealth, and my inspection of the Red Cross documents, there are some material differences between the circumstances in Kamasaee and the current application. While I must be to some extent circumspect, given that the disclosed document is subject to a limited access regime, I make the following observations:

(a) while in this proceeding the Commonwealth does not admit that the Department owed a duty of care to AS, or at least the scope of the duty contended for by AS, it seems to me to be unlikely that the existence of a duty of care will be the critical issue in this proceeding;

(b) in Kamasaee, the very existence of a duty of care said to be owed by the Commonwealth to detainees on Manus Island, and the Commonwealth's control of the detention centre on Manus Island, are hotly contested issues;

(c) further, while I am not fully acquainted with the scope of discovery in Kamasaee, it was apparent to me from my involvement in the applications in Kamasaee that a substantial number of documents discovered by the Commonwealth were immune from disclosure on the basis that their disclosure had the potential to harm Australia's relationship with Papua New Guinea. Accordingly, there was a substantial body of relevant material withheld from the plaintiff in Kamasaee; and

(d) as a result of these considerations, the result of the balancing exercise in Kamasaee differed from the result in the current application.

113 I shall hear further from the parties regarding the appropriate form of order, and with the question of costs.

[1] AS v Minister for Immigration & Ors (Ruling No.7) [2017] VSC 137.

[2] Further written submissions were sought from the parties in relation to this matter, and were provided on 30 March 2017.

[3] See previous rulings in which the gist of the case and the pleadings are set out: AS v Minister for Immigration and Border Protection [2014] VSC 486; AS v Minister for Immigration and Border Protection [2014] VSC 593; AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642; AS v Minister for Immigration and Border Protection (Ruling No 4) [2016] VSC 351; AS v Minister for Immigration and Border Protection [2016] VSCA 206; AS v Minister for Immigration and Border Protection (Ruling No.6) [2016] VSC 774; AS v Minister for Immigration and Border Protection (Ruling No 7) [2017] VSC 137.

[4] I accept that the ability of Mr Conboy to give more precise evidence about this aspect of the application is impeded by not having seen the Red Cross documents.

[5] [2017] NSWCA 54.

[7] Which also addressed the Commonwealth's claims for public interest immunity over Cabinet documents, and the Department's operational documents, which were not the subject of this application.

[8] [1973] AC 388.

[9] [1974] AC 405.

[10] [1977] UKHL 1; [1978] AC 171.

[11] [1995] HCA 6; (1995) 182 CLR 572.

[12] [2008] WASCA 34; (2008) 36 WAR 83.

[13] In AS's supplementary submissions made in response to the 27 March ruling, counsel submits that, as the Commonwealth concedes that the Red Cross documents relate to AS's claim alone, the 27 March ruling makes no difference to the outcome of this application.

[14] [2016] VSC 605.

[15] [2016] VSC 770.

[16] Kamasaee v Cth & Ors, Order of Associate Justice Daly, 22 December 2016, 'other matters', paragraph [B].

[17] [2006] VSCA 85; (2006) 15 VR 22.

[18] [2016] VSC 317.

[19] [2015] VSCA 353, [115].

[20] [1995] HCA 6; (1995) 182 CLR 572, 589.

[21] See Leightons, [46] and Kamasaee (No 4) at [13]-[14].

[22] [2016] VSC 770, [12].

[23] [2014] VSC 65, [24].

[24] [2011] VSC 436, [23].

[25] [1973] AC 388, 412.

[26] [2015] VSCA 353.

[27] Kamasaee (No 4) [2016] VSC 492, [11]-[13].

[28] The Commonwealth v Northern Land Council [1993] HCA 24; [1992-1993] 176 CLR 604, 620.

[33] [1999] NSWCCA 166; (1999) 46 NSWLR 681 [57].

[36] [2008] WASCA 34; (2008) 36 WAR 83.

[38] Ibid [46], see also Kamasaee (No 4), [2016] VSC 92.

[40] See Commonwealth of Australia v Northern Land Council and anor (1992-1993) 176 CLR 694, 617-618,

[41] The Detention Services Manual discovered by the Commonwealth illustrates the Department's detailed guidelines for the operation of detention centres.

[43] [1993] HCA 24; (1992-1993) 176 CLR 604.

[44] By necessity, these observations are brief and made in general terms.

[45] There were ten individual documents over which the Commonwealth made a full PII claim (the remainder being duplicates). Of these, I consider that three are either not relevant, or at least only tangentially relevant to the issues in the proceeding.

[46] For completeness, that document was not included in the Red Cross documents being the subject of this application.