Adelaide Brighton Cement v South Australia
[1999] SASC 379
•6 September 1999
ADELAIDE BRIGHTON CEMENT LTD v STATE OF SOUTH AUSTRALIA & ANOR
[1999] SASC 379
Civil
DEBELLE J This is an application that the defendants produce for inspection certain documents for which privilege is claimed.
This action arises out of arrangements made between the plaintiff and the South Australian Harbors Board and its successor in title, the South Australian Ports Corporation. The arrangements concern a jetty at Klein Point on Yorke Peninsula and certain wharves at Birkenhead. At all material times the jetty and the wharves were owned by either the Harbors Board or the Ports Corporation. For some years before 28 April 1965, the plaintiff had been shipping limestone from the jetty at Klein Point to the wharves at Birkenhead. On 28 April 1965 the plaintiff and the Harbors Board entered into an agreement by which the Harbors Board agreed to allow the plaintiff to continue to use the jetty at Klein Point and the wharves at Birkenhead. The agreement was for a period of 21 years. Before it expired, the operation of the agreement was extended for a further 21 years from 1 January 1986. The agreement will, therefore, continue in force to run until 1 January 2007.
The Harbors Board had been charging the plaintiff fees for the use of the jetty and wharves. In 1965 the plaintiff agreed to continue to pay the fees and has been paying fees ever since. The fees have been charged pursuant to regulations made from time to time under the Harbors Act 1936 and its legislative successor the Harbors and Navigation Act 1993. In 1965 the fees were respectively called “Wharfage” and “Tonnage”. By amendment to the regulations made on 15 October 1992 the terms “Wharfage” and “Tonnage” were replaced by the terms “Cargo Services Charge” and “Harbor Services Charge”, no doubt in accordance with the modern trend to use three words where one had formerly sufficed. In this action, the plaintiff alleges, among other things, that these charges are duties of excise within the meaning of s 90 of the Commonwealth Constitution and are therefore invalid. The defendants deny the allegations, asserting that the charges are fees for services provided to the plaintiff.
The parties have each given discovery. The defendants have discovered more than 10,000 documents. They include documents for which the defendants claim privilege on the ground that disclosure of the contents of the document would be against the public interest, what is often for convenience called “public interest immunity”. Those documents fall into four broad classes, namely,
submissions to Cabinet by Ministers of the Crown;
a submission to Cabinet by the Under Treasurer;
attachments to Cabinet submissions; and
one document entitled “Discussion of Cabinet Deliberations”.
The claim for privilege is grounded on the fact that the documents are of a class which should not be disclosed. There is no claim for privilege on the ground that the content of any document is so sensitive that it requires that it not be produced for inspection. The classification of claims for public interest immunity in relation to documents into “class” claims and “contents” claims has been described as “rough but accepted”: Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1111 per Lord Wilberforce; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616. This is a class claim.
When deciding whether either of these charges is a duty of excise, one of the issues to be considered is whether either charge is a tax. In Matthews v The Chicory Marketing Board (Victoria) (1938) 60 CLR 263 at 276 Latham CJ defined a tax in these terms:
“... a compulsory exaction of money by a public authority for public purposes, enforceable by law, and ... not a payment for services rendered”.
As was pointed out in Air Caledonie International v The Commonwealth (1988) 165 CLR at 467 the definition is not exhaustive. It will, however, suffice for present purposes. One of the issues to be examined in these proceedings when deciding whether the charges are a fee for services is whether there is a discernible relationship between each of the charges with the value of the services: Air Caledonie at 467; see also Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 567 - 568.
There is no dispute that these documents are discoverable so that it may be assumed that the documents contain material relevant to the issues in the action in the sense that they would, or would lead to a chain of inquiry that would, either advance the case of one of these parties or damage that of that party’s adversary: see Mulley v Manifold (1959) 103 CLR 341 at 345. The plaintiff seeks production of the documents for the purpose, among others, of determining the basis upon which the charges it has paid have been fixed. As will be seen some of the Cabinet submissions bear a title showing that they concern alteration of charges and on their face are material to the issues in this action.
No Absolute Immunity
The principles relating to public interest immunity in Australia claimed for Cabinet documents as a class are well settled. They were examined at length in Sankey v Whitlam (1978) 142 CLR 1 and the principles enunciated there have been applied on a number of occasions since in Australian courts. The issues have also been examined by the High Court in Alister v The Queen (1984) 154 CLR 404 and more recently in Commonwealth v Northern Land Council (1993) 176 CLR 604 where the court upheld a claim of public interest immunity for documents recording the deliberations of Cabinet. Decisions applying the principles in Sankey v Whitlam include Hospital Contributions Fund of Australia v Hunt (1983) 76 FLR 408; Harbours Corporation (Q) v Vessey Chemicals Pty Ltd (1986) 12 FCR 60; Hooker Corporation Ltd v Darling Harbour Authority (unreported, 7 May 1987, Supreme Court of NSW, Commercial Division, Rogers J); Koowarta v Bjelke-Petersen (1988) 92 FLR 104; Water Authority (WA) v AIL Holdings Pty Ltd (1991) 7 WAR 135; Zarro v Australian Securities Commission (1992) 36 FCR 40; and Middleton v State of Western Australia (1996) 17 WAR 201. The principles have also been applied by this court in Legal Services Commission v Trotter (1990) 54 SASR 74, where Cox J examined them at some length, in Strickland v King (1990) 54 SASR 515, and in RMG Services Pty Ltd v South Australia (1993) 172 LSJS 160. Reference should also be made to Conway v Rimmer [1968] AC 910; Burmah Oil Co Ltd v Bank of England [1980] AC 1090; and Air Canada v Secretary of State [1983] 2 AC 394; R v Chief Constable of West Midlands Police; ex parte Wiley [1995] 1 AC 274; and Fletcher Timber Ltd v Attorney-General [1984] 1 NZLR 290.
Since at least the decision in Sankey v Whitlam, there is no absolute immunity from production and inspection of Cabinet documents as a class. In this context the expression “Cabinet documents” means
Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments;
papers prepared as submissions to Cabinet; and
any documents which relate to framing of government policy at a high level.
Although Cabinet documents belong to a class in respect to which there are strong considerations of public policy militating against disclosure regardless of their contents, there is no absolute immunity from disclosure: Commonwealth v Northern Land Council at 616; see also Sankey v Whitlam at 43, 58 - 59, 95 - 96. In addition, documents which might at one time be immune from disclosure may later be disclosed if circumstances have altered. So the protection does not necessarily endure forever: Sankey v Whitlam at 43. The question whether production will be ordered will depend on a number of factors. They include the status of the documents, the subject matter of the documents, the age of the documents, and whether the documents have already been published. These factors are examined below.
Some Relevant Principles
The following propositions are relevant to the issues in this application and have been drawn from the cases just mentioned.
The general rule is that a 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: Sankey v Whitlam at 38.
However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer at 940 in these terms:
“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.”
Those observations were adopted by Gibbs ACJ in Sankey v Whitlam at 38. Stephen J expressed the competition between these two aspects of the public interest in these terms in Sankey v Whitlam at 48 - 49:
“These principles, stated in their broadest form, each reflect different aspects of the public weal. Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.”
It is the duty of the court, not the privilege of the executive, to determine whether a document will be produced or may be withheld: Sankey v Whitlam at 38, 58 - 59, 95 - 96. As Stephen J said in Sankey v Whitlam at 58, a claim to Crown privilege has no automatic operation; it always remains a function of the court to determine that claim.
The court determines whether a document should be produced or withheld by deciding whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should not be denied access to relevant evidence: Sankey v Whitlam at 38 - 39. In Commonwealth v Northern Land Council at 616 the court approved the following observations of Gibbs ACJ in Sankey v Whitlam at 43:
“I consider that 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 interest 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 to 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. 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.”
See also Sankey v Whitlam per Stephen J at 63 - 64 and per Mason J at 98 - 99.
When carrying out this balancing task, the court will give weight to the Minister’s opinion that the documents should not be produced but will form its own opinion whether the public interest will be the better served by production or non-production: Sankey v Whitlam at 44 - 45, 96.
Those who urge privilege on the ground of public interest immunity for classes of documents, regardless of particular contents, carry a heavy burden: Sankey v Whitlam per Stephen J at 62; see also Lord Reid in Rogers v Home Secretary [1973] AC 388 at 400. Speaking generally, a claim of public interest immunity for a class of documents will be upheld only if it is really necessary in the public interest or for the proper functioning of the public service to withhold the documents from production: Sankey v Whitlam at 39.
As decisions made by executive government concern such a wide variety of issues, there can be no single rule of thumb by which to determine whether a document should be produced for inspection: Attorney-General v Jonathan Cape Ltd [1976] QB 752 at 767: Sankey v Whitlam at 41. In other words, it is impossible to lay down broad and general rules: Glasgow Corporation v Central Land Board (1956) SC at 25 - 26 quoted with apparent approval by Stephen J in Sankey v Whitlam at 60. The fundamental principle is that documents may be withheld from production only if, and to the extent that, the public interest renders it necessary. In this respect it must be noted that the categories of public interest are not closed and are not confined to strict and static classes: Sankey v Whitlam at 60; D v N.S.P.C.C. [1978] AC 171 at 230.
It is a corollary of the general rule stated in proposition (1) that a court may intervene and prevent disclosure of a document whose production would be contrary to the public interest even if no claim is made by a Minister or other high official that its production should be withheld. The court has a duty to prevent disclosure without the intervention of any Minister if possible serious injury to the national interest is readily apparent: Sankey v Whitlam at 44, 58 - 59. However, it would be exceptional for the court to intervene where the Minister had considered the question and decided that no objection should be taken: Sankey v Whitlam at 44 - 45.
It is now beyond question that the court has power to inspect the document or documents privately: Sankey v Whitlam at 46. There is, however, a question whether the court should look at the documents for assistance in the balancing exercise, that is to say, when weighing the two conflicting aspects of the public interest. In some cases, the court might be able to determine that the public interest requires that the documents be withheld from production without inspection of the documents: see Commonwealth v Northern Land Council where it was held that documents recording the deliberations of Cabinet on topics which were current and controversial would not be disclosed except in quite exceptional circumstances. It was unnecessary in that case to inspect the documents to determine the claim for privilege. Only in cases where the ministerial affidavit demonstrates with sufficient particularity the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other is it likely that it will be possible to reach such a conclusion: c.f. Woodhouse P in Fletcher Timber Ltd v Attorney-General at 295. In almost all other cases, an inspection will be necessary. There is a question whether the applicant for production of the document must satisfy some threshold test before the court inspects the documents. Plainly, the documents must be relevant. The question is whether any further or more stringent test is necessary. That question was examined by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404, by Cox J in Legal Services Commission v Trotter at 84 - 85, and by Toohey J in the dissenting judgment in Commonwealth v Northern Land Council at 632-636. Reference should also be made to Conway v Rimmer, Burmah Oil Co Ltd v Bank of England; Air Canada v Secretary of State for Trade; Fletcher Timber Ltd v Attorney-General; and Middleton v State of Western Australia. As Toohey J pointed out in Commonwealth v Northern Land Council at 634 - 635, the process of discovery (in this court, the list of documents) demonstrates the existence and relevance of the documents to the issues in the action. The application for production for inspection is a usual concomitant of the process of discovery. It would seem, therefore, that where there is a claim for privilege on the ground of public interest immunity, the court should without more inspect the documents for the purpose of weighing the competing public interests.
The decisions in Burmah Oil and Air Canada suggest that there may be a further test. They suggest that in England a judge should not look at the documents unless he is persuaded that an inspection would be likely to satisfy him that he should order production, that the judge should have some concrete ground for belief of that fact which takes the case beyond a mere fishing expedition, to use the words of Lord Wilberforce in Air Canada at 439. Burmah Oil and Air Canada were cases in which the documents were sought in civil proceedings. There was a division of opinion in the House of Lords whether, before inspection is ordered, the document should appear likely to support the case of the parties seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings. In Air Canada the majority favoured the former view. The High Court has not had occasion to consider the question in civil proceedings. Only Toohey J had to consider the issue in Commonwealth v Northern Land Council as the question did not fall for examination on the approach taken by the majority. It must be remembered that the rules in England as to discovery are not as liberal as those in this State and in other jurisdictions. Order 24 r 8 of the Rules of Court in England requires discovery only if disclosure is necessary “for disposing fairly of the cause or matter or for savings costs”. Rule 58.01 of the Rules of this Court requires documents to be discovered if they are documents “relating to any matter in question in the action”. For these reasons, the two English decisions may be distinguished. The procedure of issuing subpoenas of documents for production may lead to concerns as to fishing and Alister v The Queen was such a case. Where the parties have exchanged lists of documents concerns as to fishing will arise only if a party seeks documents which have not been discovered. That is not the position in this application. Concerns as to fishing and the principles to be applied when a party subpoenas documents may, therefore, be put to one side.
Discovery and production of documents is part of the adversarial process with the goal of ensuring fairness between the parties in the resolution of their dispute: per Toohey J in Commonwealth v Northern Land Council at 635. The principles relating to public interest immunity stem from the fact that there is another public interest which must also be recognised. Thus, the court is charged with the task of weighing the two competing public interests. A party cannot truly know whether a document supports his case until he has seen it. If documents had been discovered it is difficult to see why the parties seeking to have the documents produced for inspection should have to discharge any further test before the court will order inspection. As La Forest J said in Carey v The Queen (1986) 35 DLR 4 at 192:
“What troubles me about this approach is that it puts on a plaintiff the burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and what one party was doing in relation to the relevant transactions at the time.”
For these reasons, I respectfully agree with Toohey J at 635 that, once documents appear in a list of documents, concerns as to relevance may be put to one side and it is hard to see why there should be a further threshold onus on the parties seeking production. As Cox J said in Legal Services Commission v Trotter, “Not all of Justice’s balancing exercises are best carried out blindfolded”. For those reasons, I do not think there is any test beyond relevance to be satisfied. Relevance is established by inclusion of a document in a list of documents. The court will then inspect the documents for the purpose of weighing the competing public interests.
There is no suggestion that the plaintiff in this case is conducting a fishing expedition. Furthermore, the titles of the documents for which privilege is claimed indicates in almost every instance the relevance of the particular document to the issues in the action. In this case, it was possible to conclude before inspection and after weighing the two aspects of the public interest that the balance appeared to favour production. For the reasons already given, it was unnecessary to reach that conclusion before inspecting the documents.
Generally speaking, the court will first determine whether as a matter of principle the documents are privileged from production. If it decides that they are, it will then, as a general rule, inspect the documents before ordering that they be produced to the opposing party. The court should not inspect the documents as a matter of course for the documents or one of them may fall into a class disclosure which would be injurious to the public interest regardless of the contents: Northern Land Council v The Commonwealth at 617
(10)Once a court has decided, notwithstanding the opposition of the Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: Sankey v Whitlam at 46 approving Conway v Rimmer. In that passage, Gibbs ACJ suggested that it may not be necessary to examine documents where they belong to a class and the Minister does not suggest that there is anything in the contents of the documents that ought to be withheld from production. However, the court’s duty to prevent disclosure of documents or part of documents if serious injury to the public interest is readily apparent indicates that the prudent course is to inspect. In addition, it seems prudent to inspect, first, to ascertain whether the relevance of any document is so peripheral that it should not be disclosed and, secondly, to determine whether, despite the fact that production should be ordered, it is necessary to mask part of the document: see para (12) below.
(11)If inspection of documents is necessary, it ought to be carried out by the court and not by any other person before ordering production for inspection. In Commonwealth v Northern Land Council at 620, the High Court said that it is undesirable that the inspection should be conducted by legal representatives of one of the parties even on a restricted basis and subject to obligations as to confidentiality before the claim for immunity has been decided upon by the court.
(12)In some cases inspection may indicate that it is appropriate to order disclosure but that part of the document should be masked so as not to disclose something which the public interest requires should not be published. The practice was approved in Conway v Rimmer by Lord Reid at 943 - 944, 946 - 950 and by Lord Pearce at 988 and in Sankey v Whitlam by Gibbs ACJ at 48 and by Aickin J at 109 - 110.
Relevance
As with other aspects of the discovery process, a party is not permitted to engage in a fishing expedition. Generally speaking, that should not present a difficulty in those cases where discovery has been given and a list of documents states the documents for which privilege has been claimed. The documents will then be relevant in the sense explained in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 at 63; see also Menzies J in Mulley v Manifold. For the reasons already given, it will usually be unnecessary to examine the question of relevance and there will be no further threshold test to be satisfied before the court will examine the documents for the purpose of weighing the competing public interests.
Mr Whitington QC, who appeared for the defendants, submitted that the plaintiff had to show more than that the documents were relevant. Pointing to the fact that the defendants had discovered more than 10,000 documents, he said that the plaintiff had to establish that it could not prove its case unless the documents for which privilege was claimed were produced for inspection. He submitted that the application was premature in that the plaintiff had not yet completed its examination of the documents and had not shown that it could not prove its case unless these additional documents were produced for inspection. I do not accept that that is an appropriate test. It is not supported by authority and it is at odds with the principles underlying the process of discovery. Although the principles relating to privilege for public interest immunity qualify the general rules relating to discovery, they do not require that a party must show that it cannot prove its case without the documents. The party does not know what is contained in the documents for which privilege is claimed. One of those documents may, standing alone or with one or two other documents, be sufficient to prove its case, thus avoiding the necessity of wading through many other documents which may have less probative value. If a document is relevant and, after the competing public interests have been balanced, there is no reason why it should not be disclosed, the document must be produced for inspection.
Some Factors to Weigh
As already mentioned, there is no rule of thumb by which it is possible to determine whether a claim for immunity from production will be upheld. Generally speaking, it will be necessary for the court to consider together a number of factors including the following.
Subject matter - As Gibbs ACJ noted in Sankey v Whitlam at 43 a court “will not treat all such documents as entitled to 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”. Thus, documents recording the actual deliberations of Cabinet are more likely to be protected than, say, submissions to Cabinet, particularly if the Cabinet deliberations relate to a topic which is current or controversial when quite exceptional circumstances will be required to override the very high public interest in the confidentiality of the documents: Commonwealth v Northern Land Council at 615 - 619. Documents concerning national security, defence, monetary policy and international relations are more likely to be withheld from production than mundane issues of day-to-day government: Hospitals Contribution Fund of Australia v Hunt (1983) 76 FLR at 408 or matters concerning commercial decisions of government concerning ordinary day to day acquisition of goods and services: Harbours Corporation v Vessey Chemicals Pty Ltd (1986) 12 FCR 60. In some cases documents may initially be of the highest confidentiality and be immune from production but that confidentiality will entirely dissipate upon public disclosure. It will often depend on the subject matter of the document. As Lord Widgery CJ said in Attorney-General v Jonathan Cape Ltd at 770:
“The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility.”
But even Cabinet documents containing such sensitive matters as defence and international relations might not have indefinite protection particularly if the documents become of historical interest only.
Status of the Documents - The status of the documents may be a relevant factor. As already noted, records of Cabinet deliberations are more likely to be protected than, say, submissions to Cabinet. For example, the goal of ensuring that decision-making and policy development is uninhibited may require records of Cabinet deliberations of Budget proposals to be withheld notwithstanding that a Cabinet submission with a particular recommendation will be released because the recommendation has been carried into effect.
Age of the documents - As is apparent from the preceding paragraph, regard must also be had to the question whether the document concerns an issue which is current and requires confidentiality. Thus, notes of Cabinet discussions concerning matters which are current and controversial will, generally speaking, be withheld from production: Commonwealth v Northern Land Council. By contrast, the public interest does not require non-disclosure of Cabinet documents when their significance is purely historical: Sankey v Whitlam at 96. But standing alone, the age of a document is not necessarily a governing factor. To adopt Lord Widgery’s example, documents relating to new taxation proposals will have no need for secrecy once the Budget has been published. On the other hand, there may be a legitimate need for secrecy for an indefinite period in the case of state papers dealing with such issues as national security, defence or diplomatic relations: Sankey v Whitlam at 42. Thus, it is not possible to have regard to the relevant factors in isolation. They must all be considered together.
Prior publication - The privilege from production will, generally speaking, not be available in the case of a document which has already been published: Robinson v South Australia [No. 2] [1931] AC at 718; Sankey v Whitlam at 45, 64 - 65. There will, however, be cases where prior publication will not necessarily result in disclosure. For example, in Rogers v Home Secretary, where the publication had occurred as a result of “some wrongful means”, it was decided that the document should not be disclosed. The document in that case fell into a special class: see the comments of Stephen J in Sankey v Whitlam at 65 - 66. Where one of a series of documents has been published that may strengthen the case for disclosure of the others in the series but does not necessarily lead to an order for production: Sankey v Whitlam at 45.
The intended use - The use which will be made of the document may be a relevant factor. As was noted in Sankey v Whitlam at 42 and 61 - 62, it may be necessary that State papers be produced to support the defence of an accused person whose liberty is at stake in a criminal trial.
Confidentiality - Confidentiality is not a separate head of privilege but may be a relevant factor when privilege is claimed on the ground of public interest: Sankey v Whitlam at 43; Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners [No. 2] [1974] AC 405 at 433.
At the risk of repetition, these are but some of the relevant factors and it is essential that all relevant facts and circumstances are weighed together.
Making the Claim
It is appropriate to note the manner in which a claim for public interest immunity should be made and the practice by which it will be tested. The process of discovery will identify the documents for which the claim for privilege has been made. The objection to production should be taken by the Minister as the political head of the department concerned or, failing him, by the permanent head, and the person taking the objection should himself have read and considered the documents and formed the view that they ought not to be produced: Sankey v Whitlam at 44. If the claim for privilege is challenged, the other party will apply for an order for production. The Minister or the Attorney-General will then swear an affidavit stating with precision the grounds on which the claim for privilege is made and again it is desirable that the person who swears the affidavit should have seen the documents in question: Sankey v Whitlam at 44, 96. The Ministerial affidavit is not conclusive and the court will itself resolve the issue whether any document should be produced: Sankey v Whitlam at 41. Nevertheless, due regard will be had to the grounds set out in the Ministerial affidavit for the purpose of balancing the injury to the public interest against the risk of injustice: Burmah Oil at 1143. As Lord Morris noted in Rogers v Home Secretary at 405:
“There will often be cases where a Minister of the Crown has very special knowledge concerning the public interest and a Court can as a result be greatly helped if it is informed of the views of the Minister. There will be many situations in which some aspect of the public interest can most helpfully be drawn to the attention of a Court by a law officer.”
For that reason, the affidavit should be expressed in terms which will enable the court to evaluate the competing interests: Sankey v Whitlam at 44, 96. Claims for privilege on the ground of public interest immunity are the better advanced if the relevant Minister has read and applied his mind to each of the documents, and has not merely adopted a mechanical formula; if the certificate is not amorphous or of a blanket character but is specific and motivated; and if the Minister has not contented himself with a general assertion that production would be injurious to the public interest but has stated very fully the reasons why this should in his opinion be so: Burmah Oil per Lord Wilberforce at 1109. The court will then determine whether the documents for which privilege is claimed should be produced for inspection.
Privilege is Claimed
The Attorney-General’s affidavit in these proceedings correctly identifies the grounds which attract public interest immunity - but provides little assistance to the task of evaluating the competing public interests. The relevant parts of the affidavit read:
“3..... I believe that it would be detrimental to the functioning of Government in this State to allow the plaintiff or its legal advisers access to the Cabinet documents. I have examined the Cabinet documents and found that they are original submissions to Cabinet signed by various parties such as the Minister of Marine, and file copies, photocopies and drafts thereof. There are also other documents that reveal the deliberations of Cabinet.
4.The Cabinet is, in practice, the highest decision making body in the Executive Government of the State. It constantly deals with matters of great sensitivity. These matters include, for example, inter-Governmental relations, economic, financial, social and industrial policy, and legal advice in relation to claims or potential claims by and against the State. I consider that the proper and efficient functioning of Cabinet would be greatly damaged should the contents of Cabinet submissions become publicly known. I consider that the functioning of Cabinet is heavily dependent on Ministers being able to express their views with complete candour without any possibility that the views of individual Ministers should become known outside Cabinet. Ministers rely on absolute confidentiality being preserved when preparing Cabinet documents.
5...... The principle of the collective responsibility of Cabinet for decisions is a central element of the system of Government operating in this State. The release of the views of individual Ministers contained in Cabinet submissions would seriously undermine this principle of collective responsibility.
6.Due to the great public interest in preserving candour of advice given to Cabinet and also discussions within Cabinet, combined with the need to maintain collective responsibility, Cabinet submissions and other documents that reveal the deliberations of Cabinet are treated with a high level of secrecy within the public sector including within Parliament.”
These arguments were all considered in Sankey v Whitlam. The grounds relied on fail to recognise that this class of documents does not have absolute immunity from production. The affidavit is of a blanket character and is not directed to any specific reason why the documents should not be disclosed. It says little which assists in the weighing of the public interest in non-disclosure with the competing public interest in the proper administration of justice. It is necessary therefore to look beyond the affidavit for the purpose of determining whether the document should be protected from disclosure.
The argument as to the need to preserve and encourage candour has been subjected to criticism as barely a sufficient, or even valid, basis upon which to claim immunity, although Lord Wilberforce has expressed the view that, in recent years, this factor has “received an excessive dose of cold water”: Commonwealth v Northern Land Council at 615 and the cases there cited. As the High Court said in the same decision as 616, it is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. See also Mason J in Sankey v Whitlam at 98.
The Documents in this Case
I turn to deal with each of the four classes of documents. What is common to three of the classes is that they are submissions to Cabinet or attachments to Cabinet submissions. Evidence was admitted of the manner in which submissions to Cabinet are handled and Cabinet decisions are recorded. Draft Cabinet submissions, Cabinet submissions (including the Cabinet decisions) and details of what occurred within Cabinet are absolutely confidential. The original Cabinet submission is maintained in a highly secure environment by the Minister who has caused the submission to be prepared. The Cabinet office keeps a copy of each submission in the Cabinet storage area. It is the duty of the Cabinet office to maintain the security of Cabinet records. Strict rules govern access to those records even by Ministers of the Government of the day. Each submission forms the basis of a discussion in Cabinet meetings. The outcome of the discussion is revealed only by virtue of what is noted at the end of the Cabinet submission. The note could simply be “Approved”, “Deferred”, or some other brief note of the outcome. Apart from what is recorded on the submission, there is no minute or other record of the Cabinet decision. There are no minutes or other records of the deliberations of the Cabinet. Where some formal act is required to give effect to the Cabinet decision, the matter may be referred to Executive Council (in respect of actions to be taken by the Governor in Council) or the relevant Minister. Thus, it is apparent that production of these documents will not disclose the deliberations of Cabinet, merely its decision.
Documents Not Privileged from Production
Of the 61 documents the subject of this application, 40 are Cabinet submissions, 20 are attachments to Cabinet submissions, and one is the document entitled “Discussion of Cabinet Deliberations”. Twenty-three of the Cabinet submissions bear a title indicating that they deal with increases in charges for the use of harbour facilities. Four other submissions relate specifically to construction of the facilities used by the plaintiff. The remaining 13 all deal with matters relating to improvements of the Port River for navigation or the cost of those improvements or other issues concerning the use of harbour facilities at Port Adelaide and elsewhere.
Apart from one document brought into existence in April 1990, all of the 61 documents the subject of this application have been in existence for more than 13 years. Fifty-two of those documents have been in existence for more than 15 years. One was created as long ago as 1935. None of the documents on their face deal with any matter which is either current or controversial. Nor, so far as one can judge from the description of the documents, does the subject matter of any document involve a matter of great sensitivity to the interests of the State of South Australia. Indeed, there is no claim that the contents of any document are so sensitive that the document or part of it should be withheld from production. In the main, these documents on their face deal with routine, if not mundane, matters concerning the fixing of fees for the use of harbour facilities and other issues concerning the use of the Port River and its environs. In short, the documents are no longer current and do not deal with issues of sensitivity so far as the interests of the State are concerned. They do not constitute any record of the deliberations of Cabinet beyond the bare note of Cabinet’s decision. There is nothing which suggests that the public interest requires that production of these documents be withheld.
At the heart of part of the plaintiff’s case is an inquiry as to the basis upon which Government has fixed its charges for the use of harbour facilities. Those charges are published in regulations. The regulations are made by the Governor and would, therefore, be the subject of recommendation by Cabinet. The description of each of the Cabinet submissions indicates that they are relevant to the issues in this action. Those which carry a title showing that they deal with increases in charges for the use of facilities are on their face directly relevant to the question whether the charges are a fee for service. The other documents are likely to throw light on the question how the fees were fixed. Viewed as a class, it is apparent that the documents are relevant and that the case for the plaintiff would be severely prejudiced if production of the documents is withheld. As these documents lack currency as well as political or other sensitivity, the claim that disclosure will be detrimental to the functions of Government in this State does not withstand scrutiny. The balance tips heavily in favour of disclosure of these documents. I decided therefore to proceed to inspect them in order to determine that they had a relevance beyond a mere peripheral relevance and to ensure that there is nothing of such sensitivity that it should not be disclosed.
Like reasoning applies in the case of the one document which is a Cabinet submission from the Under Treasurer. It is entitled “Budget 1970-1971 - Harbour Revenues” and is dated 30 July 1970. Since it relates to a Budget brought down at least 18 years ago, it does not on its face refer to anything either current or controversial or of sensitivity to the interests of the State. By contrast, it is plainly relevant to the issues in this action. The same considerations which indicate disclosure of each of the Cabinet submissions applies with equal force to the attachments to those submissions.
I have reached this conclusion without considering whether some of these Cabinet submissions concern regulations which have already been made amending fees for the use of harbour facilities. If any document falls within that description, that provides further reason for requiring disclosure. First the documents are plainly relevant and second, there has been a publication of the effect of the documents.
Different considerations apply in the case of the document entitled “Discussion of Cabinet Deliberations”. As was noted in Commonwealth v Northern Land Council at 616, there are extremely strong considerations of public policy weighing against the production of documents recording deliberations of Cabinet on issues which are current and controversial but there is no absolute immunity even if the highest degree of protection against disclosure is warranted. Here again, two relevant factors are the subject matter of the document and the currency of the issues. The document is dated 15 January 1981. The topic of the discussions is not disclosed. It may be presumed from the fact that the document has been discovered that it relates to and has some bearing upon the fees for the use of harbour facilities. Given the routine commercial nature of that question and the fact that the document came into existence more than 18 years ago, the discussion can have little but historical interest. There is nothing which suggests that disclosure of this document could possibly be detrimental to the interests of the State. On its face, the document is not privileged from production. It would, however, be prudent to inspect the document before making any order to ensure that it is not in fact a discussion of a Cabinet decision or otherwise discloses deliberations of members of Cabinet, that it has more than peripheral relevance, and that it contains nothing which is so sensitive that it should not be disclosed.
Results of Inspection
After deciding that there appeared to be no sufficient ground to require these documents to be withheld from production, I inspected each of the documents. That inspection has confirmed that there is no reason why any of these documents should not be disclosed. In the main, the Cabinet submissions fall into two broad categories. The first are recommendations for increases in charges for the use of harbour facilities, recommendations which have already been implemented in all cases more than 13 years ago. Those charges have been varied from time to time, usually in each year. They are now of historic interest only. All of the documents which are attachments to Cabinet submissions are attached to submissions concerning increases in charges. The attachments are all tables comparing proposed charges for use of harbour facilities in South Australia with like charges in other States. All of these charges have been published by regulation or other statutory instrument made a good number of years ago and have been overtaken by later increases in charges. There is no basis for withholding production of the attachments. The second group of Cabinet submissions concerns recommendations for expenditure to improve harbour and marine facilities. The most recent is dated 2 April 1990 and recommends deepening and improvements of the Port River in stages over seven years. The project was approved. It concerns a matter of housekeeping by what was then the Harbors Board. Other documents in that group have been in existence for 13 or more years. They also concern what might fairly be described as routine matters of improvement to harbour and marine facilities. There is nothing of sensitivity for the public interest of this State in any of the documents. Disclosure will not in any respect affect any current activity of the Government. At least four of these documents relate directly to harbour facilities used by the plaintiff. All of the documents are clearly relevant to the issues in this action. The Cabinet submissions which do not directly deal with recommendations for increases in charges deal with costs incurred by the Harbors Board in the provision of harbour facilities and are therefore relevant to the issue whether the charges are a fee for service.
Only two documents do not fall within those two categories. The first is the document numbered 267(33) which concerns nothing other than what the title of the document in the list of discovered documents states, namely, that it concerns the nomination of the Auditor-General to be on the Board of the Directors of the plaintiff company. It has no political or other sensitivity. However, it is not in any respect relevant to the issues in this action and so I will not order production. However, I strongly question whether there is any need at all for the defendants to seek to maintain any privilege in respect of this document, particularly given that it concerns the appointment of the Auditor-General to the Board of the plaintiff company.
The second is the document entitled “Discussion of Cabinet Deliberations”. The document is inaccurately named and the title is misleading. I have examined it carefully. It does not discuss deliberations in Cabinet but, instead, briefly reports information given to the Cabinet concerning combined accounts for the year 1980/1981 and then continues with proposals for improving revenue and containing expenditure. Suggestions for determining the level of increases in all State charges are made. The document relates to the financial situation of Government more than 18 years ago. It does not affect any current activity of Government. There is no reason why it should not be disclosed.
In short, inspection confirms that what is involved in this case is not the disclosure of Cabinet deliberations or discussion, but the disclosure of routine documents prepared by the Harbors Board for its Minister concerning matters involved in the Board’s day-to-day operations and management which in no way are current, controversial, or have any political or other sensitivity. The disclosure of none of these documents would in any way be prejudicial to the public interest or the proper functioning of the Cabinet of this State. All of the documents but one are relevant to the issues in this action.
Avoiding the Rubber Stamp Approach
This application demonstrates the force of Lord Templeman’s remarks in ex parte Wiley at 281:
“If a document is not relevant and material it need not be disclosed and public interest immunity will not arise. In case of doubt as to relevance and materiality the directions of the court can be obtained before trial; a pre-trial conference can help to define the issues and the scope of discovery. If a document is relevant and material then it must be disclosed unless it is confidential and unless a breach of confidentiality will cause harm to the public interest which outweighs the harm to the interests of justice caused by non-disclosure. It has been said that the holder of a confidential document for which public interest immunity may be claimed is under a duty to assert the claim, leaving the court to decide whether the claim is well founded. For my part I consider that when a document is known to be relevant and material, the holder of the document should voluntarily disclose it unless he is satisfied that disclosure will cause substantial harm. If the holder is in doubt he may refer the matter to the court. If the holder decides that a document should not be disclosed then that decision can be upheld or set aside by the judge. A rubber stamp approach to public interest immunity by the holder of a document is neither necessary nor appropriate.
If public interest immunity is approached by every litigant on the basis that a relevant and material document must be disclosed unless the disclosure will cause substantial harm to the public interest, the distinction between a class claim and a contents claim loses much of its significance. As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence or national security or diplomatic secrets will be self-evident and will preclude disclosure. On the other hand it is difficult to see how the disclosure of documents generated by the activities of the Police Complaints Authority can cause any harm.”
See also Lord Wolff at 288. The words “Harbors Board” or “Ports Corporation” may be substituted for “Police Complaints Authority” in the last line of Lord Templeman’s remarks. Inspection of these documents confirmed what the titles of each document suggested, namely, that the documents were of a routine nature concerning the day-to-day operations of the Harbors Board and that, especially given the age of the documents, it was highly unlikely that any harm would be caused to the public interest by disclosure. The affidavit of the Attorney-General disclosed no reason why the documents should be withheld. The objection to production had all the hallmarks of what Lord Templeman called “a rubber stamp approach”. Those advising Ministers on these issues should pay close heed to the remarks of the Lords Templeman and Wolff.
Conclusion
For all of these reasons, there will be an order that the defendants produce for inspection all of the 61 documents the subject of the application save and except for the document numbered 267(33).
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