Consideration
27 Although it has taken some time to explain the applicant's submissions on this issue they in fact warrant short shrift. The submissions involve a fundamental misreading of the relevant authorities.
28 The decision of Menzies J in Lanyon does not suggest that so-called Cabinet papers (which his Honour described as including papers brought into existence for the purpose of preparing a submission to Cabinet) are entitled to absolute immunity. Justice Menzies held that such papers belong to a class which ought not be examined by the Court except, perhaps, in very special circumstances, none of which were apparent on the facts of that case. Accordingly, there was no warrant for his Honour to inspect the documents and he upheld the claim for immunity without doing so.
29 Lanyon has never been overruled or called into question. In Sankey v Whitlam and Northern Land Council, the decisions on which the applicant relied to support the proposition that the law had developed beyond Lanyon, Lanyon is in fact referred to with approval (in Sankey v Whitlam at 39, 41, 57 and 95, and in Northern Land Council at 609 and 616). A proper reading of Lanyon, Sankey v Whitlam and Northern Land Council discloses the common application of a unified set of principles to different factual circumstances. The applicant's reading of the relevant authorities is perverse and involves both construing statements out of context and transforming conclusions of fact about the balance of competing interests in the individual case into statements of principle.
30 The Full Court (Burchett, Hill and Madgwick JJ) summarised the relevant principles in State of New South Wales v Ryan (1998) 101 LGERA 246 (State of New South Wales v Ryan) at 250-251 in these terms:
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)."
31 In State of New South Wales v Ryan the Full Court allowed an appeal on the basis that the judge at first instance had erred in not following the principle explained in Northern Land Council that "it is not enough to weigh (and find wanting) the importance to the government of disclosure of the particular facts which would be revealed by production of the cabinet material in question. Only a sufficient demand of justice can outweigh the protection to which Cabinet documents are entitled in virtue of their nature, irrespective of those facts. Furthermore, the authorities also require weight to be given to the government's claim that disclosure of the document would be harmful, and it is simply not correct that disclosure of recommendations couched in broad terms, or which are implicit rather than express, could not justify this claim" (at 252).
32 This summary, which accurately reflects the reasoning in Lanyon, Sankey v Whitlam and Northern Land Council, discloses that the approach advocated by the applicant is fundamentally inconsistent with authority. True it is that documents recording deliberations of Cabinet have "a pre-eminent claim to confidentiality". But 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 as State of New South Wales v Ryan makes clear, the question in respect of both classes is "whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure".
33 It follows that if there is cogent evidence of the grounds for the making of the claim for immunity of the class of documents, a matter to be assessed giving due "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" and no apparent basis for concluding a "sufficient demand of justice" for disclosure of the document having regard to its importance to the resolution of the proceedings, there will be no warrant for inspection of the documents by the judge resolving the claim; the prima facie position of protection from disclosure will prevail. In such a case it is only if there is a sufficient basis for concluding that documents within these recognised classes are of "such significance that the interests of justice call for" them to be produced (New South Wales v Ryan at 250) that production might be required albeit recognising that, first, it will be difficult if not impossible for the requisite level of significance to be achieved in respect of documents recording the deliberations of Cabinet on any current topic or topic which remains controversial and, second, if the requisite level of significance of the documents to the case is demonstrated having regard to the "degree of protection against disclosure which is called for by the nature of [the] class", it will then be appropriate for the judge to inspect the documents, not for the purpose the applicant proposed (simply to test the strength of the claim for immunity) but rather to test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity.
34 The applicant's reliance on an observation in Attorney-General v Jonathan Cape Ltd [1976] 1 QB 752 at 764D-G as authority to the contrary is misconceived. Lord Chief Justice Widgery was there dealing with a contention by the Attorney-General that the protection from disclosure of Cabinet papers was based on collective responsibility. As the Commonwealth also submitted, the observation of Lord Widgery CJ at 768H that he "would not accept without close investigation that such matters [i.e., Cabinet documents] must, as a matter of course, retain protection after a period of years" has not been followed in Australia (see Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 at 423 and note that in Northern Land Council the documents concerned events that had taken place some 14 years ago).
35 The applicant's focus on the so-called need to inspect documents which are the subject of a class claim which do not record the deliberations of Cabinet or the propriety of doing so on the facts of this case having regard to the description of the classes claimed is exposed as misconceived on proper analysis of the relevant authorities. Northern Land Council at 617, at which the following statement was made, provides no support for the applicant's approach:
In many so-called "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.
36 The applicant's submissions, to the effect that this supported the proposition the primary judge erred by not inspecting the documents, failed to appreciate the context in which this statement appears. The Court was dealing with the observation of Gibbs ACJ in Sankey v Whitlam at 43 (on which the applicant also relied) that "[i]f 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" and explaining that this had to be understood as 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". Their Honours also explained that, in respect of a class claim, "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". In this context, their Honours referred to the fact that claims for immunity over documents not based on their contents and which do not fall within a recognised class attracting the privilege may necessitate inspection of the documents by the judge. Their Honours then said that, by way of contrast, where "a document clearly falls within a class which attracts immunity, a different approach is called for", being the approach described in the preceding paragraph.
37 In the present case, and contrary to the applicant's assertions, there was no basis for concluding that a strong case had been made out for the production of the documents. Indeed, as the Commonwealth submitted:
Rather than adducing any evidentiary support for, or explanation of, the relevance of the documents to particular issues, and subjecting such evidence to cross-examination, the applicant was content, before the trial judge, to rely upon the general notion of adjectival relevance - that is, the applicant argued that the very fact that the Commonwealth discovered the documents meant that they must be relevant to (or relate to) so-called 'key issues', and were therefore 'important' to the applicant's case. The applicant adopts the same approach in his written submissions. It is an inordinately weak answer to a properly founded claim of PII [public interest immunity].
38 The position on inspection of the documents the subject of the claim remains that identified by Bowen CJ in Young v Quin (1985) 4 FCR 483 at 484 as follows, with which the applicant's submissions are inconsistent:
Where a claim of public interest immunity is made in respect of documents it is for the court to decide whether or not to uphold the objection. The court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, the better view appears to be that the court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced: Conway v Rimmer [1968] AC 910 at 952, 953 and 971 and see Air Canada v Secretary of State for Trade (No 2)[1983]2 AC 394.
39 The primary judge's approach was consistent with authority. Contrary to the applicant's submissions the primary judge did not treat the documents as if they were entitled to absolute immunity. So much is clear from his reasons for judgment at [11], [13], [18], [20], [21] and in particular at [22] where his Honour referred expressly to the three stage process, the third stage being the required balancing exercise. The primary judge's approach to inspection of the documents was also consistent with authority. Being satisfied on the evidence that the documents as described by Dr Ian Watt, Secretary to the PM&C, fell within the identified classes (at [43]), and that the claims for public interest immunity were supported by cogent evidence of the harm to the public interest from disclosure (at [42]), and not being satisfied that the documents were of other than possible marginal relevance to the applicant's case (at [45]), there was no justification for the primary judge to examine the documents. In this regard, the applicant's submissions appear simply to ignore Dr Watt's evidence that each document, if disclosed, could reveal the deliberations of Cabinet either directly or by enabling reliable inferences to be drawn, thereby giving the documents in each class a "pre-eminent claim to confidentiality".
40 Accordingly, the circumstances warranting examination of the documents as explained in the authorities - first to identify whether the documents fell within the classes and second to ensure that where the balance appeared to warrant disclosure of the documents to ensure such disclosure is in fact warranted - were not engaged on the evidence and material before the primary judge. So too the proposition that the primary judge failed to distinguish between a class claim and a contents claim for public interest immunity must fail having regard to the terms of the primary judge's reasons at [11], [17]-[19], [23] and [43].