Queanbeyan City Council v ACTEW Corporation Limited - [2008] FCA 1983 - FCA 2008 case summary — Zoe

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Queanbeyan City Council v ACTEW Corporation Limited

[2008] FCA 1983

Federal Court of Australia|2008-12-23|Before: Stone J

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Source facts

Court

Federal Court of Australia

Decision date

2008-12-23

Before

Stone J

Source

Original judgment source is linked above.

Judgment (79 paragraphs)

[1]

Introduction 1 By notice of motion filed on 28 November 2008, the applicant in this proceeding seeks orders that the second respondent be required to produce certain documents to the applicant for inspection. Attached to the notice of motion are lists of the documents to which the applicant sought access.

[2]

2 The main proceeding involves a challenge to the constitutional validity of certain levies on the grounds that, contrary to s 90 of the Commonwealth Constitution, they are excise duties. These levies are:

[3]

(a) a water abstraction charge imposed on water licence holders under the Water Resources Act 2007 (ACT) and previously under the Water Resources Act 1998 (ACT); and (b) a network facilities tax imposed on the owners of utility network facilities under the Utilities (Network Facilities) Tax Act 2006 (ACT). 3 On 14 July 2008 the Court ordered the second respondent to provide discovery of certain categories of documents said to be relevant to whether or not the above charges can be characterised as excises. In accordance with that order the second respondent filed three lists of documents originating from departments of the second respondent, being the Department of Territory and Municipal Services, the Chief Minister's Department and the Department of Treasury. The second respondent claimed public interest immunity and legal professional privilege in respect of the documents listed in part 2 of schedule 1 to each list. 4 When the notice of motion came on for hearing before me on 10 December 2008, Mr Kirk of Counsel, who appeared for the applicant, advised that the applicant no longer pressed its claim for access to documents in respect of which the second respondent claimed legal professional privilege. Similarly, in respect of those documents to which the applicant still presses its claim, it does not seek access to those portions of these documents which are subject to a claim for legal professional privilege. Mr Kirk noted, however, that some of those documents had, in fact, been produced. Subsequent to the hearing the applicant, at the request of the Court, provided an affidavit sworn on 18 December 2008 by John Andrew Larkings, of Williams Love & Nicol Lawyers, solicitors for the applicant. Mr Larkings' affidavit confirmed the above and annexed a revised list of the documents showing those to which the applicant currently seeks access. The list also shows those documents where there is an unchallenged claim to legal professional privilege over part, but where the claim for access to the remainder of the document is still pressed. The revised list is annexed as a schedule to these reasons.

[4]

The present context 5 The applicant's contraction of its claim means that the only issue I need decide is whether the documents in the revised list (or relevant parts of such documents) are immune from production on the basis of public interest immunity. The second respondent claims that these documents are protected by public interest immunity on the grounds that: (a) it would be against the public interest to disclose the contents of the material, and (b) the material belongs to a class that, in the public interest, ought not to be disclosed - regardless of the content of the material. 6 To understand the context in which the applicant seeks access to the documents it is necessary to understand the applicant's claims in the main proceeding. The applicant claims that its interest in challenging the levies referred to above is that both have been passed on by ACTEW to the applicant. Paragraphs [21]-[29] of the applicant's submissions on the question of public interest immunity contain a convenient summary of the basis of its challenge. The basis of the constitutional challenge to both levies is s 90 of the Constitution, which provides that the power of the Commonwealth Parliament to "impose duties of customs and of excise" is "exclusive". An excise is a tax imposed on goods. At issue in the proceedings as regards both levies is whether or not each can properly be characterised as a tax. The classical, albeit non-exhaustive, definition of a tax is "a compulsory exaction of money by a public authority for public purposes, enforceable by law, and … not a payment for services rendered" … The very definition of a tax, therefore, involves ascertainment of the purpose of the measure in question. Moreover, in this proceeding what is also at issue as regards both levies is specifically whether or not the levies can be characterised as "a charge for the appropriation of a limited and valuable public resource" as regards the WAC [water abstraction charge] … or it a fee for the right to use land as regards the UNFT [network facilities tax] … as opposed to a tax.… In part the task of distinguishing between such a fee or charge and a tax will depend upon whether "the amount of the exaction has no discernible relationship with the value of what is acquired"… However, [it] is also relevant to seek to ascertain whether the true purpose of the measure, properly understood, is to raise revenue. … It is the case of the Applicant that the purpose of both measures is to raise revenue for the ACT and that both should be characterised as, in truth, taxes. The purpose in character of the levies in question is thus a constitutional fact at issue in this case. That constitutional validity, and associated constitutional facts, are at issue is a matter of significance in this case. It touches upon the fourth factor identified by the Full Federal Court in Northern Land Council, namely the seriousness of the issues in relation to which production is sought. … In this context, to the extent that it is relevant to take account of considerations such as candour by public servants, or other such justifications used in support of the claim for [public interest immunity] in relation to this type of cabinet documents, it must be recalled that the very existence of the government in question ultimately is founded upon the Constitution and is subject to it.

[6]

9 I agree with Wilcox J's comment in North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [8] that the headnote to the report of Whitlam v Sankey in the Commonwealth Law Reports accurately summarises the substantial common ground between the members of the High Court, each of whom wrote a separate judgment. It is, however, useful to refer to individual judgments which discuss the principles more specifically. Before doing so, I note that the Court in Sankey was referring both to the production of documents and to their admission into evidence. As stated above, s 130 of the Evidence Act now deals specifically with claims of public interest immunity in the context of the admission of evidence; however, this does not detract from the relevance of the High Court's comment on the issue of disclosure. 10 In relation to public interest immunity, Gibbs ACJ stated the general rule at 38-39 as follows: The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] AC 910 at 940, as follows: "There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done." It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. … 11 The Acting Chief Justice noted that objection to the production of a document might be on the basis of the document's contents or "because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document". In relation to the class basis for objection his Honour held, at 43: … although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. 12 Among the classes of documents mentioned by his Honour were Cabinet documents and other papers concerned with policy decisions at a high-level. His Honour noted that, despite claims that such documents were absolutely protected from production, in his view they did not form a homogenous class "all members of which must be treated alike". 13 A more recent, but not inconsistent, analysis is to be found in Commonwealth v Northern Land Council (1993) 176 CLR 604 where the issue was whether the Commonwealth was obliged to produce for inspection notebooks recording the deliberations of Cabinet or committees of Cabinet made variously by Cabinet officers or departmental officers. The context was the Northern Land Council's action to set aside an agreement it had made with the Commonwealth on the basis that the Commonwealth had acted unconscionably in negotiating and entering into that agreement.

[22]

25 In oral submissions the second respondent indicated that it had no objection to my reviewing the documents if necessary. In general I have not needed to do so, however, I have done so where there was any doubt in my mind about the nature of the document or its contents. I have also reviewed document 293 from the Department of Territory & Municipal Services. By oversight, this document was not mentioned in the affidavit of Mr McNulty and the second respondent invited me to review this document. Having done so, I am satisfied that it belongs in Category 3 as a brief to the Treasurer in preparation for a submission to Cabinet. 26 It is not necessary that I set out in detail the comments made about each particular document in the affidavits referred to above. The affidavits were read in Court and are now part of the public record. For present purposes it is sufficient to note that each gentleman made cogent submissions in support of the second respondent's position. Underlying these submissions was reliance on the principles of the confidentiality of the Cabinet deliberation process and collective responsibility for Cabinet decisions. In so far as the documents in Categories 1-4 are concerned, they were all submitted to be part of the process of briefing ministers and preparing reports for deliberation in Cabinet, even where the documents were not directly considered by Cabinet. 27 Two documents (Department of Treasury documents 251, 256 and 284) are categorised as drafting instructions to Parliamentary Counsel's office. Document 251 contains instructions in relation to drafting the legislation imposingUtilities (Network Facilities) Tax. Mr McNamara alleged at paragraph 9 of his affidavit that these instructions sought the drafting of a Bill which was "to be input into a Cabinet Submission. The subsequent Cabinet Submission was deliberated upon by Cabinet". Mr McNamara claimed that disclosure of this document would breach Cabinet confidentiality and collective responsibility. Document 256 does not contain any such instructions but is it a request for legal advice. Not surprisingly, this is not clear from the revised list in the schedule or in the applicant's categorisation of the documents and it explains why, as the applicant noted, public interest immunity was not originally claimed in relation to this document. In Mr McNamara's affidavit the claim for public interest immunity in relation to this document is supported by the same argument as for document 251. The same submissions are made in relation to document 284 in relation to which Mr McNamara states: Document 284 is an email from Bronwyn McCaskill, an officer from Parliamentary Counsel's Office, to Sue Ross, an officer from Treasury, attaching the Cabinet in Confidence draft version of the Utility (Network Facilities) Tax Bill. I would not object to the email being released, however the claim of public interest immunity is maintained in relation to the attached Bill, as I believe that the release of this document would be contrary to the public interest …

[23]

Despite the position taken by Mr McNamara, the second respondent did not resile from its submission in relation to the document and the applicant did not distinguish between the two documents. 28 It is inevitable that the applicant was not able to take issue with the evidence given by Mr McNamara, Mr McNulty and Mr Stewart. Not having had access to the documents, the applicant has had to rely on rather more general submissions of principle. 29 The applicant contends that whether the levies can be characterised as payment for services rendered is relevant to determining whether they impose an excise. One measure of this, it is submitted, is whether a relationship can be discerned between the charge and the value of what is acquired. The applicant submitted that while the objective of raising revenue is not an invariable characteristic of taxation it will often be significant; Air Services Australia v Canadian Airlines (1999) 202 CLR 133 per Gleeson CJ and Kirby J at [91]. That being so it was submitted, "The purpose and character of the levies in question thus a constitutional fact at issue in this case". 30 In my view, insofar as this submission is intended to rebut the second respondent's claim of public interest immunity, it is misconceived. Determining whether legislation imposes an excise is an exercise in statutory interpretation. The days have long passed when the courts held that the meaning of legislation had to be ascertained only with reference to the words of the statute. The range of extrinsic material to which a court may refer as an aid to interpretation has been identified by statute (eg Acts Interpretation Act 1901(Cth), s 15AB), in judicial pronouncements and by academic analysis and it is not necessary to canvass its extent here. 31 It is also a well-established principle of statutory construction that a court may, indeed should, consider the object or purpose of an Act and its context; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. The applicant is correct in submitting that this is not only legitimate but desirable however it is the purpose of the statute (sometimes expressed as "the intention of Parliament") as revealed by legitimate techniques of interpretation not the purpose of the government or the executive that is relevant. While the Minister's Second Reading Speech made in Parliament may be relevant to indicate the purpose of the statute as accepted by the Parliament, the same cannot be said of documents considered by the Executive in the course of deciding what legislation is required or in the process of drafting the legislation. This much is clear from the comments of the Full Court in Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 where the Court held that it was permissible to refer to the Second Reading Speech of the Bill for the Racing Legislation Amendment (Bookmakers) Act in the Legislative Assembly of the New South Wales Parliament on 19 March 2002. The Court said, at [41]: In this case the only possible relevance of the Second Reading Speech is in the identification of a possible objective for some aspects of the legislative scheme insofar as it relates to corporations. 32 In the Constitutional context, the need to consider not only the language of the statute but also its purpose and practical operation was recognised in Ha v State of New South Wales (1997) 189 CLR 465, the leading authority on s 90 of the Constitution. In Ha Brennan CJ, McHugh, Gummow and Kirby JJ said at 498: When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates - is practical operation - must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices.

Queanbeyan City Council v ACTEW Corporation Limited

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Judgment (79 paragraphs)

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Legislation Cited (5)

Cases Cited (7)

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