Roe (Administrator) v State of Western Australia

Public interest immunity claim 8 The State claims public interest immunity over three documents that it has discovered and also over a redacted portion of a fourth document. It seeks an order upholding those claims which have not been accepted by the representative applicants. Copies of the contentious documents (including an unredacted version of the fourth document) were made available to the Court for inspection should the Court consider it appropriate to inspect them for the purposes of resolving the application. A confidential affidavit of the Attorney-General for the State of Western Australia was sought to be relied upon by the State. Submissions were received on the basis that the Court would consider whether it was necessary or appropriate to refer to those materials to resolve the application. 9 Parts of the confidential affidavit that the State sought to rely upon without any preservation of confidentiality were received on the application by being read in open Court. However, the balance of the confidential affidavit was received on the basis that the Court would consider whether there should be regard to its contents.

Relevant principles 10 The relevant principles were not in issue. The differences between the parties were as to matters of emphasis. For present purposes, the principles may be summarised as follows (taking account of the fact that no 'class claim' of immunity was made by the State and there was no issue that the State had maintained confidentiality in the four documents): (1) an assessment as to whether documents ought to be privileged from production on the basis of public interest immunity requires an evaluation as to whether the public interest which calls for non-disclosure outweighs the public interest in the administration of justice that requires that parties be given a fair trial on all relevant and material evidence; (2) before any balancing is undertaken the Court must be satisfied that there is a public interest that supports non-disclosure and that the contents are relevant and material; (3) matters to be brought to account in the balancing exercise include: (a) the nature of the interests that would be affected by disclosure; (b) the importance of the convention of collective responsibility within cabinet for decisions taken by government; (c) the importance of candour on the part of public servants in providing advice on matters of policy to Ministers or for consideration by cabinet; (d) whether disclosure would be likely to damage the proper workings of government; (e) the discouragement of ill-informed or captious public or political criticism without adequate knowledge of the background to what is recorded; (f) the extent to which the material has currency when it comes to the public interest advanced to support the claim to immunity; (g) the nature of what is at stake in the case; and (h) the likely significance of the contents of the document for the outcome in the case; (4) it is usual for great weight to be given to statements made by Ministers to the effect that disclosure of a particular document that has been scrutinised by the Minister would be contrary to the public interest where the nature of that interest is such that an understanding of the impact of disclosure is peculiarly within the knowledge of the Executive; (5) the deliberative task of undertaking the required evaluation as to whether (a) there is a public interest that would be adversely affected by disclosure; (b) whether non-disclosure would have adverse consequences for public interest in the administration of justice; and (c) if so, the balancing of those competing interests, remains with the Court; inspection of documents the subject of a claim to public interest immunity is not always required and should not be undertaken as a matter of course; (6) before documents are inspected by a judge for the purpose of considering whether they should be privileged from production on the basis of public interest immunity, the Court should be satisfied as to a basis for the apparent relevance and significance of their contents to the Court proceedings with the inspection being to enable the balancing exercise to be undertaken with due regard to the actual contents of the documents; (7) in an appropriate case the Court may consider making orders for a regime by which there may be some form of limited disclosure to legal representatives for the purpose of assisting the Court as to the nature of the issues that bear upon the resolution of any issue as to public interest immunity; and (8) the Court must provide adequate reasons when determining any disputed claim to public interest immunity particularly as to undertaking the required balancing exercise, noting the difficulties that pertain in preserving any privilege that may be upheld. See Sankey v Whitlam (1978) 142 CLR 1 at 95-96; Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 at 614-616; Ryan v State of Victoria [2015] VSCA 353 at [57]; Rankine v State of South Australia [2022] SASCA 18 at [16]-[18] (Livesey P, Lovell and Doyle JJA); Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 143 at [4]-[11], [13] (Le Miere J); Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766 at [67]-[69] (Wigney J); and Chief Commissioner of Police v Crupi [2024] HCA 34 at [23].

The evidence as to the nature of the contentious documents 11 The three documents comprise ministerial briefing materials concerning proposed reforms to the FPINE Act that were under consideration in 2018. They are (a) an email dated 17 April 2018 from a principal policy officer in the Department of Justice; (b) a draft briefing note prepared by the same principal policy officer and addressed to the Attorney General (with two attachments); and (c) a later revision of the draft briefing note. The email sought feedback from the Registrar on the draft briefing note. 12 Senior counsel for the State explained that the three documents had been discovered on the basis that they were caught by discovery categories which required documents recording statistics concerning the issuing of warrants to be disclosed. The attachments to the draft briefing note which contained the statistics had been produced for inspection. The submission advanced was that the balance of the three documents did not answer the agreed categories. It was said that they had no relevance to the disposition of the common questions raised in the representative proceedings. The Court was invited by the State to inspect the documents for the purpose of confirming that position. 13 The fourth document is a briefing note provided by the Director-General of the Department of Justice to the Attorney-General in January 2019. It concerns a fundraiser conducted at the time to provide funds to pay the fines of Aboriginal mothers who had been incarcerated on the basis of warrants under the FPINE Act. An unredacted version of the document has been produced for inspection. The privilege claim relates to two paragraphs of the document. 14 The beginning of the fourth document is unredacted and states: Key Issue Mrs Debbie Kilroy OAM, CEO of Sisters Inside Inc., started a GoFundMe fundraiser entitled 'Free the People' with the stated goal of releasing '100 single Aboriginal mothers' from prison for fine default alone. 15 The redacted part of the document appears immediately below this statement of the 'Key Issue'. 16 The balance of the document is unredacted. It commences with the heading 'Current Status'. It refers to a person being released after an anonymous donor paid the balance of the debt owed by that person. The document refers to the Department's concern that some of the information being provided is 'incorrect and misleading', particularly 'the numbers of Aboriginal women in prison for fine default alone'. The balance of the document contains information about the numbers of people imprisoned for fine defaults and referred to a draft letter to Mrs Kilroy which is attached. The draft letter sets out the same information as is in the document. 17 The Attorney-General provided an affidavit in support of the claim to public interest immunity over the redacted portion of the fourth document. It was described as information under the heading 'Background Information'. The claim was said to be made 'on the basis that … it reveals the deliberations or decision-making of Cabinet and a sub-committee of Cabinet, namely, the Legislation Standing Committee of Cabinet and otherwise also reveals matters concerning high level policy considered by Cabinet'. 18 The further information from the confidential affidavit that was read into evidence without objection included the following statement: The briefing note was produced by the Department of Justice to assist me to respond to a community campaign concerning the State's response to instances of fine defaults. In providing a fulsome briefing, the briefing note refers to confidential Cabinet processes. 19 A further passage that was read was as follows: To the best of my knowledge, those Cabinet processes are matters which have not been disclosed or otherwise made public. Consequently, the redacted portion reveals Cabinet's legislative priorities and the intention behind those priorities. 20 A copy of the redacted version of the fourth document was received as an exhibit.

The claim to public interest immunity over the three documents 21 The evidence before the Court establishes that the three documents were prepared as part of a process of developing proposals for reform of the FPINE Act. Further, the briefing note is a form of document that, when finalised, would become an instruction to progress the reform proposal and would inform the drafting of cabinet submissions. The documents were said to reveal instructions from the Attorney-General about the reform proposal and feedback from the principal policy officer. 22 Manifestly, the documents were of a kind where disclosure may discourage candour in communications that were necessary for the effective working of government at a senior level. They concerned the development of matters of policy according to an established process that involved the Attorney-General and would inform cabinet deliberations. 23 I am satisfied that the documents are of a kind where there is a public interest in their non-disclosure. 24 As to the relevance and materiality of the contents of the documents to the present proceedings, as has been explained, those issues concern (a) whether the way in which the statutory regime for the warrants operated in a disproportionate way such that the adverse impact of the law could be said to be discriminatory; and (b) the practice adopted by the Registrar when it came to the issue of the warrants, particularly whether it involved consideration of individual circumstances and whether an opportunity to be heard was afforded to individuals. 25 Given the submissions advanced by senior counsel for the State, considered in the context of the issues in the proceedings, it must be the case that the three documents do not record any aspect of the practice adopted by the Registrar and that to the extent that there was information about the way in which the regime for warrants operated when it came to Indigenous people, particularly Indigenous women, that information was only statistical and was contained in the attachments which have been produced. 26 Further, given the evidence that has been provided in support of the claim to public interest immunity, the email and attached draft briefing paper were sent to the Registrar to seek input as to a reform proposal. There is no indication from the description of the document or its purpose to suggest that the Registrar was being invited to respond to some record of the practice that was then adopted by the Registrar when it came to the issue of warrants or whether the practice had the characteristics alleged by the representative applicants. Rather, it is to be expected that the document would concern the reform proposal. 27 Accordingly, I am not persuaded that the documents have material relevance to the issues in the proceedings given that the reason for their inclusion in the discovery (the fact that the documents had attached statistical information) has led to the relevant attachments being produced for inspection. 28 For those reasons, I am not persuaded that non-disclosure of the three documents would prejudice the public interest in the trial proceeding on the basis of all available relevant and material evidence. 29 It follows that there is no need for the balancing exercise to be undertaken and, accordingly, no need to inspect the documents to understand particular relevance of the contents for the purpose of that balancing of interests. The claim for public interest immunity in the three documents is upheld.

The redacted portion of the fourth document 30 The nature of the document does not suggest that the background information would concern cabinet deliberations. Respectfully, given the terms of the confidential affidavit that were read into evidence it is not entirely clear whether the evidence is to the effect that the redacted portion of the document is said to concern actual cabinet deliberations or whether it is said to disclose cabinet processes or both. The submissions advanced were to the effect that the redacted information 'records sensitive Cabinet deliberations and decision-making processes'. 31 It was not submitted that the redacted information had no relevance to the issues in dispute. Rather the submission was to the effect that it had 'little relevance' and no basis to conclude that the applicants would face any injustice by not being able to rely on the redacted information. 32 The nature of the claims made by the applicants is such that much of the contentious factual aspects concern matters known to the Registrar. Given the nature of the case alleged, disclosure is an important forensic means by which the applicants may be able to advance their case. 33 In those circumstances, I am satisfied that it is necessary to undertake the balancing process in relation to the redacted paragraphs. For that reason, I have inspected the redacted part of the document which was exhibited to the confidential affidavit. I have not read the body of the affidavit. 34 Having considered the contents I am satisfied that there is a public interest that calls for non-disclosure on the basis articulated in submissions. I am also satisfied that the contents have little relevance to the factual issues in the proceedings as explained in these reasons. 35 The fact that these proceedings concern civil claims in relation to the liberty of the representative applicants and other group members is a matter that counts in favour of disclosure. However, having regard to the matters I have identified that aspect of the case is not a matter that causes me to conclude that the balance is in favour of disclosure. 36 Therefore, I uphold the claim to public interest immunity.

Costs and orders 37 The State sought an order for costs if it was successful. The representative applicants submitted that there should be no order for costs on the basis that they were not able to agree to the claim in circumstances where they did not have access to the documents and it was appropriate for them to require the matter to be adjudicated by the Court. 38 The fact remains that the representative applicants took an active role in advancing submissions against the claim. On the other hand, the claim was quite confined. In the circumstances, I consider that the costs are appropriately ordered to be costs that the State may recover if it is successful in the overall proceedings. I will order accordingly. 39 I will make an order to the effect that the claims to public interest immunity are upheld. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.