R v Collaery

Legislation Cited: Evidence Act 2011 (ACT), ss 130, 131A Freedom of Information Act 1982 (Cth), s 34 Intelligence Services Act 2001 (Cth), s 39 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 27

Cases Cited: A v Hayden (No 2) (1984) 156 CLR 532 Alister v The Queen (1984) 154 CLR 404 Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 Commonwealth v Northern Land Council (1993) 176 CLR 604 Kamasaee v Commonwealth (No 4) [2016] VSC 492; 52 VR 368 Ku-ring-gai Council v West as delegate of the Acting Director General, Office of Local Government [2017] NSWCA 54; 95 NSWLR 1 Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 New South Wales v Ryan (1998) 101 LGERA 246 North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 R v Collaery (No 7) [2020] ACTSC 165 R v Scerba [2015] ACTSC 176; 299 FLR 221 Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264 Sankey v Whitlam (1978) 142 CLR 1 Spencer v Commonwealth [2012] FCAFC 169; 206 FCR 309 Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196 The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; 36 WAR 83 Queanbeyan City Council v ACTEW Corporation Limited [2008] FCA 1983; 253 ALR 121

Parties: Secretary, Department of Prime Minister and Cabinet (Applicant) Secretary, Attorney-General’s Department (Applicant) The Queen (Crown) Bernard Collaery (Defendant)

Representation: Counsel A Mitchelmore SC and T Begbie (Applicants) C Tran (Crown) C Ward SC (Defendant)

Solicitors Australian Government Solicitor (Applicants) Commonwealth Director of Public Prosecutions (Crown) Gilbert + Tobin (Defendant)

File Number: SCC 195 of 2019

MOSSOP J:

Introduction

1. Bernard Collaery is being prosecuted on four charges of contravening s 39 of the Intelligence Services Act 2001 (Cth) and one count of conspiring to do so. In response to subpoenas served by him on the Secretary of the Department of Prime Minister and Cabinet (Secretary, PM&C) and the Secretary of the Attorney-General’s Department (Secretary, AGD), both Secretaries have filed applications seeking that they be excused from producing certain documents.

2. By the time of the hearing, only five documents were in contention. Those documents are documents alleged to be related to the processes of the Cabinet and the applicants contend that they should be excused from producing those documents on the grounds of public interest immunity.

Public interest immunity claims

3. There are five documents that are the subject of a claim of public interest immunity which is disputed. They are documents held by PM&C and AGD. The documents are described in the following table:

Document Date Description PII claim

PMC.06 Brief for Cabinet submission Full PII claim – Cabinet

PMC.08 Brief in advance of Cabinet meeting Full PII claim – Cabinet Part PII claim – international relations (two sentences) Part PII claim – national security (one sentence)

AGD.04 Undated Briefing for Secretary AGD to Full PII claim – participate in preparatory discussions Cabinet in Secretaries Committee on National Security ahead of consideration by Cabinet

AGD.09 3 Ministerial submission on legal Full PII claim – October prospects regarding an aspect of the Cabinet 2018 proceeding

AGD.12 Undated Briefing for Secretary AGD to Full PII claim – participate in preparatory discussions Cabinet in Secretaries Committee on National Security ahead of consideration by Cabinet

4. In relation to PMC.08, it is only necessary to deal with the public interest immunity claims based upon international relations or national security if the claim based upon it being a Cabinet document is not upheld.

Statutory provisions

5. Section 131A of the Evidence Act 2011 (ACT) requires that an objection to the production of a document that is covered by s 130 be dealt with in the same way as if the objection to producing the document was an objection to the giving or presenting of evidence. Section 130 provides:

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 presented as evidence. (2) The court may give a direction under subsection (1) 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 the 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 subsection (1) to relate to matters of state, the information or document is taken for that subsection to relate to matters of state if presenting it as evidence would— (a) prejudice the security, defence or international relations of Australia; or … (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters the court may take into account for subsection (1), it must 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 present 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 presenting 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 present 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.

General principles to be applied

6. Section 130 of the Evidence Act reflects the principles that apply to public interest immunity at common law. Authorities relating to common law public interest immunity therefore remain relevant: Ku-ring-gai Council v West as delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54; 95 NSWLR 1 at [87].

7. It is uncontroversial that s 130, like the common law, involves a three stage process, as was described by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 (Alister) at 412:

… when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.

8. In determining public interest immunity claims, significant weight may be given to the opinion of senior governmental officers: Alister at 435, 437-438, 455; Sankey v Whitlam (1978) 142 CLR 1 (Sankey) at 43-44, 46, 59-60, 96; A v Hayden (No 2) (1984) 156 CLR 532 at 560, 576. In this court, in R v Scerba [2015] ACTSC 176; 299 FLR 221, Refshauge J said (at [18]): “The courts have required that … full weight and proper respect be given to the views of the Executive about what the interests of national security are”.

9. The burden lies upon the government entity claiming privilege to establish that there would be a real risk of harm, rather than proving that such harm would be more probable than not: Sankey at 39; The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; 36 WAR 83 at [46]; Kamasaee v Commonwealth (No 4) [2016] VSC 492; 52 VR 368 at [11]-[14]. Principles to be applied to Cabinet claims

10. The principles to be applied in addressing a claim of public interest immunity in relation to documents prepared for the purposes of proceedings of Cabinet are usefully summarised in New South Wales v Ryan (1998) 101 LGERA 246 (Burchett, Hill and Madgwick JJ) (Ryan) at 250-251. This summary was adopted by the Full Court of the Federal Court (Keane CJ, Dowsett and Jagot JJ) in Spencer v Commonwealth [2012] FCAFC 169; 206 FCR 309 at [32], where the court said that the summary in Ryan “accurately reflects the reasoning in Lanyon, Sankey v Whitlam and Northern Land Council”. The passage from Ryan is as follows:

Authorities binding on this Court justify the statement of a number of propositions about what have been called Cabinet papers. There is no doubt that the document with which we are concerned falls within that description as it is used in these authorities. In Lanyon Pty Ltd v The Commonwealth of Australia (1974) 129 CLR 650 at 653, Menzies J, “without examination of the documents”, upheld a claim for privilege “for documents of a particular class or classes which may be described as documents brought into existence within government departments and instrumentalities for consideration in formulating a submission to cabinet and recording the decision of cabinet, its committees or sub-committees thereon.” His Honour said: The basis upon which I do so ... is that the governmental process 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 what I would describe as 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, in my opinion, are of a nature that ought not to be examined by the Court, except, it may be, in very special circumstances. This decision was cited by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 39 as authority for the proposition that “papers brought into existence for the purpose of preparing a submission to Cabinet” belonged 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”. Lanyon was also cited in Sankey v Whitlam (at 57) by Stephen J (with whom Aickin J agreed), and (at 95) by Mason J, without any suggestion that Menzies J had given too wide an ambit to the category of Cabinet papers. Indeed, Mason J said (at 99): To ensure that the protection given to Cabinet proceedings is effective, documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for cabinet must be protected. It has been clearly laid down, in Sankey v Whitlam and in Commonwealth v Northern Land Council, that the protection accorded to Cabinet documents is not absolute. As it was put in the latter case (at 616) in the joint majority judgment: The claim of public interest immunity must ... be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence. However, the joint judgment sounds (at 617) a specific warning against reducing the weighing of the two competing public interests to a mere assessment of the contents of a document, such as a Cabinet document, as not warranting protection. Their Honours who joined in that judgment cite the statement of Gibbs ACJ in Sankey v Whitlam (at 43): If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. But they are careful to add: Gibbs ACJ was referring no doubt to the outcome of a balancing process in a case where the detriment to the public interest involved in disclosure was outweighed by the public interest in the advancement of justice. 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. The joint majority judgment makes it clear (at 618-619) that documents recording the actual deliberations of Cabinet, as distinct from other Cabinet documents, have “a pre-eminent claim to confidentiality”. That means that the weighing process will not often produce the result that the interests of justice require disclosure. “Indeed”, their Honours said, “for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings.” While this case is not one involving records of that kind, the matter to be emphasised is that, both in the case of documents recording the deliberations of Cabinet and in the case of other Cabinet documents, the question for the court is “whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure”. In a case where the court has to weigh the competing public interests, it is required, in doing so, 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. In Sankey v Whitlam (at 44) Gibbs ACJ said that the court is “required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest”, and he reiterated the point, using the expression “[f]ull respect”, at 46. In the same case, Stephen J quoted (at 59-60) a statement by Lord Pearson to similar effect, and Mason J said (at 96) that the court “will give weight to the Minister's opinion that the documents should not be produced”. Since the public interest on which the immunity is based is concerned with the protection of the inner workings of government, this proposition is inevitable. For the same reason, Gibbs ACJ in Sankey v Whitlam drew attention (at 43) to the need, in cases in which the government is not a party, to provide it a proper opportunity to intervene before any order for disclosure is made. Gibbs ACJ continued, after making the point which has just been mentioned: Moreover no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf, Conway v Rimmer [1968] AC, at p953).

11. Counsel for the defendant accepted that documents disclosing Cabinet deliberations or decisions would clearly only be disclosed in exceptional circumstances. However, he submitted that as one got further removed from the actual decisions and deliberations of Cabinet, the public interest in maintaining confidentiality of the documents became less and hence it was easier to overcome the public interest in the maintenance of that confidentiality.

12. Specific reliance was placed by counsel for the defendant upon a passage in the decision of the High Court in Commonwealth v Northern Land Council (1993) 176 CLR 604 (Northern Land Council) at 614-615:

It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet. Documents of that kind are often referred to as Cabinet documents. When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has "received an excessive dose of cold water" (Burmah Oil Co. Ltd. v. Bank of England, [1980] A.C. 1090, at p. 1112; see e.g. Sankey v. Whitlam (1978), 142 C.L.R 1, at pp. 62-63; Conway v. Rimmer [1968] A.C. 910, at pp. 952, 957, 987-988, 993-994; Rogers v. Home Secretary, [1973] A.C. 388, at p. 413; but contrast with Sankey v. Whitlam (1978), 142 C.L.R, at p. 40; Conway v. Rimmer, [1968] A.C., at p. 972.). (Footnote included as text)

13. The immediately following paragraph commences:

But it has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made.

14. The submission made by counsel for the defendant was that in this passage the High Court had expressed “grave doubt … that the chilling effect upon the candour of officials is at all relevant”. Counsel said that this passage involves “the rejection, or at least the serious casting of doubt upon, the proposition that the chilling effect of disclosure [upon] candour on the part of public officials is a relevant consideration”. Emphasis was placed upon what was said to be a distinction between the approach taken by Menzies J in Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 (Lanyon) and “the approach of the court in Northern Land Council”.

15. The submission involves a misunderstanding of the quoted passage. It is simply a preliminary comment made prior to the court going on and dealing with what was in issue in that case, namely documents recording deliberations of Cabinet. The passage is making the opposite point to that for which counsel for the defendant appeared to be quoting it. It is saying, in relation to documents prepared outside Cabinet, that the importance of candour on the part of public servants has been disparaged but that that disparagement may be more than is warranted. That is made clear by the reference to the statements of Gibbs CJ in Sankey in the footnote. The point of the passage in Northern Land Council is to illustrate, by reference to the competing views referred to in the footnote, that there has been some debate about the rationale for immunity from production of the class of documents which include documents prepared outside Cabinet, but there has never been any such debate about Cabinet documents such as those the subject of that case. It goes no further than that. As Wilcox J said of this passage in North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 (Bradley) at [15], the High Court noted the tendency to downplay the potential that disclosure would discourage candour by public officials “but found it unnecessary to make any definitive statement about it”.

16. The case does not support any different approach to the disclosure of documents produced outside Cabinet, but which would disclose Cabinet deliberations, to that which is outlined in the passage from Ryan set out above.

Evidence relied on by the Commonwealth

17. The Commonwealth relied upon the evidence of Stephanie Claire Foster, a Deputy Secretary in PM&C, who affirmed an affidavit dated 14 July 2020. She was not cross-examined. Her evidence was not otherwise challenged.

18. The evidence of Ms Foster was based upon both an examination of the documents and a review of the records relating to Cabinet and Cabinet committee proceedings so that she could inform herself as to the context for each document reviewed. Talking about the documents collectively she said: Generally speaking, the 5 documents are either Cabinet documents themselves, or their content is substantially and specifically replicated in the Cabinet documents, such that their disclosure would reveal Cabinet deliberations.

19. Ms Foster described in, general terms, the system of Cabinet government and the importance of the Cabinet process for the efficient operation of government. She identified that the system of collective decision-making embodied in the Cabinet process facilitates the finality of decision-making and collective accountability of the government to Parliament and hence to the people.

20. She made reference to the significance of confidentiality of Cabinet processes as an essential underpinning of that process. The convention of confidentiality means that ministers may enjoy complete freedom to explore all policy options without the need to temper their comments or views. Impairment of that confidentiality would significantly impair the process of decision-making and policy development. That in turn would ultimately impact negatively on Australia’s national interest.

21. She identified that in addition to the Cabinet there are seven subcommittees of the Cabinet. One of those is the National Security Committee of the Cabinet (NSC) which comprises the Prime Minister, Deputy Prime Minister, Attorney-General, Treasurer, Minister for Foreign Affairs, Minister for Defence and Minister for Home Affairs. Its decisions do not require subsequent endorsement of the whole Cabinet.

22. She also explained that the Secretaries Committee on National Security (SCNS) is an interdepartmental committee which considers “national security policy and operational matters of an ongoing nature” in addition to all matters that are to be put before the NSC. The SCNS includes the Secretaries of each department represented by a Minister on the NSC, as well as the heads of intelligence and national security related agencies. In relation to the SCNS, her opinion was that the rationale for maintaining confidentiality was the same as that in relation to the Cabinet process because the SCNS exists “to ensure advice provided to NSC is accurate and well-consulted across Government”. She said:

Items that are to be considered by NSC are expected to be considered by SCNS first. SCNS agendas typically mirror forthcoming NSC agendas and SCNS can make recommendations to the Cabinet Secretary, through the PM&C Secretary, on the NSC forward work program. The work of the two Committees is closely intertwined.

23. In relation to each specific document, she explained the nature of the document and the reasons for which it was prepared. That evidence will be described below in relation to the individual documents.

Individual documents

PMC.06 and AGD.09

24. Document PMC.06 is a briefing to the Prime Minister, prepared by PM&C in relation to a meeting of the NSC.

25. AGD.09 is a document prepared by AGD to brief the Attorney-General ahead of a NSC meeting.

26. The evidence of Ms Foster is that these documents were created for the purpose of informing members of the NSC of the relevant issues to be discussed. Inferences about NSC decisions or deliberations may reliably be drawn or the position taken by members of the committee could be determined. The documents describe matters to be discussed during the meeting, containing information from which reliable inferences about NSC decisions or deliberations may be drawn. A reader of these documents would gain “an insight into the likely positions taken, and comments made,” by the relevant ministers in the course of the deliberations of the NSC. The documents dealt with matters that were expected to be considered by, and in fact were considered by, the NSC. PMC.06 also includes a summary of a submission to the NSC.

27. The defendant submitted that “To be protected at all, a document must have been brought into existence for the purpose of being provided to Cabinet, and that purpose is to be determined at the date upon which the document was created: Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264, 265-266.” He submitted that the documents were prepared prior to a meeting, and do not record Cabinet discussions or the views of the Prime Minister. They do not disclose what in fact was discussed during Cabinet deliberations, nor what was said by any particular Minister during those deliberations.

PMC.08

28. This is a document prepared by PM&C to brief the Prime Minister ahead of a meeting that was preparatory to a meeting of the NSC.

29. The evidence of Ms Foster was that the document referred to previous meetings of the NSC relevant to the matters to be discussed at the upcoming meeting and with the proposed subject matter of items to be discussed at the NSC. The document was prepared on the understanding that the issue for discussion was one that had been of interest to the NSC and was of continuing interest at the time. Further deliberation by the NSC was anticipated. Despite noting that the preparatory meeting itself was not a Cabinet committee meeting, Ms Foster stated that the document includes “information from which reliable inferences could reliably be drawn about the decision or deliberations of the NSC, and from which the position taken by respective members of the NSC could be determined”.

30. The defendant made similar submissions to those made in relation to PMC.06, submitting that “A document several times removed from a Cabinet meeting, created for a preparatory purpose, does not disclose Cabinet deliberations”.

31. He also submitted, in relation to any additional claim for public interest immunity based upon international relations or national security, that he wished to be heard in relation to any “court only” material.

AGD.04 and AGD.12

32. These are documents prepared by AGD to brief the Secretary of the Department prior to a meeting of the SCNS.

33. The evidence of Ms Foster was that the SCNS meeting was preparatory to the NSC meeting at which the Cabinet submission summarised in PMC.06 was to be discussed. The documents “include information from which inferences could reliably be drawn about the decision or deliberations of the NSC, including the position of respective members of the NSC in respect of the matters which it was known at the time would be discussed by [the] NSC following the SCNS meeting”.

34. The defendant submits that the documents are “far removed from Cabinet deliberations” and hence do not attract immunity.

The public interest identified by the defendant

35. The defendant identified that these proceedings were criminal proceedings and that that was a matter relevant to take into account for the purposes of the balancing exercise.

36. The defendant identified two forensic purposes which would support the public interest in him having access to the contested documents.

37. The first was that there was material that was suggestive of a divergence of views among the department heads who gave evidence at the hearing pursuant to s 27 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). He submitted that if there was evidence that one of the secretaries who gave evidence had said something at the SCNS meeting that was directly or possibly inconsistent with the evidence that was given at the s 27 hearing then “that is a matter which should be before the Court of Appeal”. He submitted that whether there was consideration by the secretaries or heads of department as to any real risk of prejudice to Australia as a result of departing from the “neither confirm nor deny” principle was a matter that was “squarely relevant to the section 27 issues before the Court of Appeal”.

38. The second matter raised by the defendant was that the documents would contain “the unfiltered views” of the secretaries and heads of departments on the “questions of whether or not the departmental heads and those advising the Prime Minister considered [redacted].

39. There were possibly other forensic purposes for which the documents were sought but counsel for the defendant was instructed not to reveal them.

40. Reliance upon the first suggested forensic purpose appears to me to be inconsistent with the manner in which the s 27 hearing was conducted. On 20 March 2020 the defendant made a forensic decision to proceed with the s 27 hearing notwithstanding that the subpoenas he had issued were not to be returnable prior to that hearing. That occurred in the context of there being a delay on the defendant’s part in having those subpoenas issued. The s 27 hearing was then conducted. That included extensive cross-examination of the Commonwealth witnesses including a number of departmental and agency heads. The court then determined those issues: R v Collaery (No 7) [2020] ACTSC 165. In those circumstances it is not clear why the defendant should be entitled to pursue documents for the purpose of, in effect, reopening the s 27 hearing, particularly in circumstances where the defendant has had the opportunity to cross-examine at some length the witnesses whose evidence he apparently seeks to challenge by accessing additional documents. Insofar as he seeks the documents for the possible purpose of putting them before the Court of Appeal, it is notable that the subpoenas have not been issued in the Court of Appeal proceedings and no leave has been obtained from the Court of Appeal to have the subpoenas issued for the purposes of that appeal.

41. Notwithstanding these procedural difficulties I assess the present submissions on the basis most favourable to the defendant, namely, on the assumption that they present no barrier to relying upon the forensic purpose that he has identified.

42. In assessing the weight to be given to the two forensic purposes identified, regard must be had to the terms of the subpoenas that were issued. So far as the subpoena to the PM&C is concerned, the only relevant item within which the contested documents may fall is:

Documents comprising any advice, briefing or report provided to the Secretary of the Department of Prime Minister and Cabinet or the Prime Minister of Australia or any minister or any Commonwealth agency head, regarding any prejudice or risk or likelihood of prejudice to Australia’s national security, security or international relations interests as a result of the Commonwealth confirming or denying in open court any matters in the Reported Facts in the course of criminal proceedings against Bernard Collaery and/or Witness K.

43. [Redacted]

44. The only item on the subpoena to the AGD was in the same terms.

45. So far as the first identified forensic purpose is concerned, [redacted]. There is a possibility that the documents to which access is sought contain [redacted] commentary about this issue. It is therefore theoretically possible that [redacted] material which might have provided a basis for the cross-examination of the witnesses called by the Commonwealth would be contained within the documents. [Redacted].

46. In assessing the extent of the public interest in the defendant having access to the documents for this articulated forensic purpose, it is significant that the documents would go not to the substantive issue of whether or not the offences were committed but to the subsidiary orders relating to the extent to which the proceedings were to take place in public. Whilst it must be acknowledged that this issue is a significant one, it is not at the core of the determination of the substantive charges.

47. So far as the second identified forensic purpose of the subpoenas is concerned, it is clear that the subpoenas are not targeted at that issue. The target of the subpoenas is the risk of prejudice arising from confirmation or denial of the Reported Facts. It is not targeted at [redacted]. There is a theoretical possibility that documents discussing the risk of prejudice from confirmation or denial of the Reported Facts could have included [redacted]. [Redacted]. Overall, this purpose seems to be a highly speculative one and I do not consider that it is on the cards that the documents will be relevant to this forensic purpose.

Consideration

48. The reliance by the defendant upon the decision in Re Aldred v Department of Foreign Affairs and Trade (1990) 20 ALD 264 (Aldred) is misplaced. Aldred was a freedom of information case which turned upon the specific language of s 34(1) of the Freedom of Information Act 1982 (Cth). Relevantly, that required that the document either be one which “has been submitted to the Cabinet” or “is or was proposed by a Minister to be so submitted”. Hartigan J (sitting as president of the Administrative Appeals Tribunal) said (at 266) that the subsection “does not grant an exemption to documents that are not submitted to the Cabinet despite the intention to do so at the time of their creation”. The holding was that, under s 34(1)(a), a document lost its exemption when it was no longer proposed to submit the document to Cabinet. It was a decision that was confined to its statutory context and contains no general principle that in order to be subject to privilege the document itself must be brought into existence for the purpose of being submitted to Cabinet.

49. I consider that the NSC should be treated in the same way as the Cabinet. Even though it is a committee of Cabinet, it is obviously a high level committee as indicated by its membership and the fact that its decisions do not require subsequent endorsement by the whole Cabinet.

50. I do not accept the submission that the documents, because of their degree of removal from the actual deliberations of Cabinet, cannot be covered by immunity. I have accepted the evidence of Ms Foster that, as a matter of fact, the disclosure of the documents will allow reliable inferences to be drawn about Cabinet deliberations and the positions adopted during the course of those deliberations. Because of their relationship to the deliberations of Cabinet, as disclosed in the evidence, there is a recognised and strong public interest in not having those documents disclosed in court proceedings. That is consistent with the decision of Menzies J in Lanyon. It is also consistent with a number of other decisions dealing with a range of types of documents related to the Cabinet process: Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31; Queanbeyan City Council v ACTEW Corporation Limited [2008] FCA 1983; 253 ALR 121; Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196. Bradley may be distinguished on the basis that it appears that, by consent, Wilcox J inspected the documents in the first instance. Although the claim was made as a class claim, the functional consequence of the inspection of the documents was to treat the claim as a contents claim rather than a class claim.

51. In relation to the documents relevant to the proceedings of the SCNS, because of the conclusion that the documents allow reliable inferences to be drawn about Cabinet deliberations and the positions adopted during the course of those deliberations, it is not necessary to separately consider whether the proceedings of the SCNS may be subject to a class claim in their own right based upon them involving the “framing of government policy at a high level”: Sankey at 39, or “important matters of policy”: Sankey at 99.

52. The authorities establish that there is a very significant public interest in the maintenance of confidentiality of Cabinet processes in order to protect the fundamentally important policy making process within the Cabinet.

53. The countervailing public interest said by the defendant is the potential significance of the documents for the purposes of the proceedings. For the reasons that I have given earlier, I consider that, in the case of the first identified forensic purpose, the prospect of there being material of significance to the defendant is relatively low and any assistance obtained by the defendant would not go to the central issue of the defendant’s guilt or innocence but rather, to the manner in which the proceedings are conducted. In relation to the second identified forensic purpose, the possibility that the documents might assist the defendant is a highly speculative one.

54. I will expressly address the matters required by s 130(5) to be considered:

(a) In relation to the importance of the documents in the proceedings, for the reasons I have given earlier, the documents are unlikely to contain information of significance either to the issue (presently before the Court of Appeal) of the extent to which the proceedings are conducted in closed court or to the defendant’s substantive defence of the proceedings.

(b) The proceedings are criminal proceedings and the party seeking access to the documents is the defendant in the proceedings. That is obviously significant because of the need to consider the public interest in the defendant being able to properly defend the proceedings. (c) The proceedings are criminal proceedings and the documents might possibly relate to the issue of the openness of the proceedings or the defendant’s substantive defence of the proceedings. Clearly the subject matter of the proceedings is grave, both in terms of the allegations against the defendant and the consequences if he is convicted of the offences.

(d) The consequences of providing access to the documents would be to undermine the confidentiality of Cabinet processes. In these proceedings, it would be possible to make orders which confined the extent of the public disclosure of the documents.

(e) The substance of the information has not already been published.

(f) The denial of access to the documents would not be coupled with an order that the proceedings against the defendant be stayed.

55. The result of the balancing exercise is that, in relation to each document, the public interest in retaining confidentiality or secrecy of the document outweighs the public interest in allowing access by the defendant to the document. I have concluded that there is a strong public interest in maintaining the confidentiality of the documents in contest and, having regard to their likely limited significance for the defendant's conduct of his defence of the charges brought against him, this public interest clearly outweighs the public interest in their disclosure. I will therefore make orders excusing the relevant departmental secretaries from production of the documents.

56. Having reached that conclusion, it is not necessary to deal with the alternative claim for public interest immunity in relation to PMC.08.

Orders

57. The orders of the Court are:

58. The Secretary of the Attorney-General’s Department is excused from producing, in response to the subpoena served on 27 March 2020, the documents identified as AGD.04, AGD.09 and AGD.12 in Annexure A to the Application in Proceeding dated 8 July 2020.

59. The Secretary of the Department of Prime Minister and Cabinet is excused from producing, in response to the subpoena served on 27 March 2020, the documents identified as PMC.06 and PMC.08 in Annexure A to the Application in Proceeding dated 8 July 2020.

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 16 October 2020