Australian Federation of Air Pilots v Hand, G.L. (in his capasity as Minister of State for Immigration, Local Government and Ethnic Affairs)

[1992] FCA 41

TN THE FEDERAL COURT OF AUSTRALIA 1

I

I	VICTORIA DISTRICT REGISTRY	1	No VG 221 of 1990
GENERAL DIVISION	)

BETWEEN: AUSTRALIAN FEDERATION OF

AIR PILOTS

(Applicant)

AND:  GERARD LESLIE HAND iin his capacitv as Minister of State for Immiaration, Local Government and Ethnic Affairs and OTHER

(Respondents)

MINUTES OF ORDER

Coram:	Ryan J
Date:	10 February 1992

Place: Melbourne

THE COURT ORDERS THAT:

%

1.   The first respondent produce for inspection by the applicant's solicitors the document described in paragraph 3 of Part 2 of Schedule 1 of the first and second respondents list of documents as 'notes made by Dr David Harrison of the Department of Prime Minister on 15 August 1989'.

such costs to be taxed.

2.    The Paragraph 1 of this Order be stayed until 5pm on 11 February 1992.

3.   The first respondent pay the applicant's costs of and incidental to the motion on notice dated 5 June 1991,

IN THE FEDERAL COURT OF AUSTRALIA

1

VICTORIA DISTRICT REGISTRY No VG 221 of 1990

1

GENERAL DIVISION 1

- RE: AUSTRALIAN FEDERATION OF AIR PILOTS

(Applicant)

m: GERARD LESLIE HAND (in his ca~acitv

as Minister of State for Immiuration,

Local Government and Ethnic Affairs1

(First Respondent)

COMMONWEALTH OF AUSTRALIA

(Second Respondent)

ANSETT TRANSPORT INDUSTRIES

(OPERATIONS1 PTY LIMITED

(Third Respondent)

EAST-WEST AIRLINES (OPERATIONS1

PTY LIMITED

(Fourth Respondent)

MAYNE NICKLESS LIMITED (Tradinq as

IPEC Aviation1

(Fifth Respondent)

AUSTRALIAN AIRLINES LIMITED

(Sixth Respondent)

(Seventh to Seventy-First Respondents)

(Seventy-Second to One Hundred and

Sixteenth Respondents)

Coram:	Ryan J
Date :	10 February 1991

Place: Melbourne

REASONS FOR XIDGKENT ON MOTION

ON NOTICE DATED 5 JUNE 1991

RYAN J: By motion on notice dated 5 June, 1991 the applicant seeks an order that the second-named respondent, the Commonwealth of Australia, produce to the applicant, the Australian Federation of Air Pilots ("the Federation") a document referred to in paragraph 3 of Part 2 of Schedule 1 of a list filed by way of discovery on behalf of the first and second respondents. The document sought has been described as "notes made by Dr David Harrison of the Department of Prime Minister on 15 August, 1989."

The Commonwealth claims the document is privileged from production. The ground on which it is said that it would be contrary to the public interest to disclose the document is

that it records discussions between the Prime Minister and	other persons at a confidential meeting, at which were
discussed matters of high importance to the Government.
It is acknowledged on behalf of the Commonwealth that there was discussion at the meeting as to whether the airlines, in the face of industrial action then being taken by the Federation, would conduct their negotiations with the Federation within the constraints imposed by the principles

enshrined in relevant National Wage Case decisions and the Prices and Incomes Accord concluded between the Government and

the Australian Council of Trade Unions.

In the substantive proceedings in which discovery has been given, the Federation attacks the validity of certain amendments to the Miaration Reaulations which amendments are collectively called "the Pilot Reaulations". In part, it is

alleged that the Pilot Reaulations were made for an ulterior purpose of nullifying or weakening the industrial action then being undertaken by the Federation. The following allegations concerning the meeting of 15 August 1988 are made in the

contentions of fact and law filed herein on behalf of the

Federation:

"32.	On Tuesday 15 August 1989 there was a meeting in the office of the Prime Minister of Australia, Mr. R.J.L. Hawke, between the Prime Minister, the Manister for Transport and Communications (Mr. Ralph Willis), the Manister for Industrial Relataons (Mr. Peter Morris), the Chief Executive of the third respondent isir Peter Abeles), the General Manaqer of the third resuondent (Mr. Graham ncnahon) and the chairman of the sixth respondent iMr. Ted Harris).
33.	At the meeting the representatives of the Commonwealth inquired of the Airlane representatives whether the Airlines would adhere to the National Wage Case Principles and the Accord in negotiations with the applicant. The Prime Minister referred
to the lim~ted form of andustrial action that had been taken (the stop work meetings) and the statements which had been made on behalf of the applicant before Mr. Justice Coldham that the applicant was not prepared to negotiate within the Accord and
the Nat~onal Wage Case principles.
34.	At the meeting the Prime Manister indicated that he and the Commonwealth strongly desired that the Airlines refuse to negotiate with the applacant other than within the Accord and the National Wage Case Principles.
35.	At the meeting the Prime Minister saad that it was possible that the Commonwealth would make the services of the Royal Australian Air Force available to the Airlines in the event of further industrial action by the pilots.
36.	At the meeting the question of the number of people the Airlines might have to stand down in the event of further industrial action was discussed.

37.    At the meetinq Sir Peter Abeles and the representatives of the sixth respond& each gave an undertaking to the Prime Minister that the Airlines would not negotiate with the applicant outside the National Wage Case principles and in return the Prime Minister said that the Commonwealth would fund the Airlines for any losses they suffered as a result of the dispute with the pilots and that the ACTU would not interfere regardless of any action which was taken by the Airlines against the pilots."

The first and second respondents have responded to those paragraphs as follows in their own contentions of fact and law:

"32. They agree wrth paragraph 32.

33.  They agree that the representatives of the airlines informed the meetrng that they rntended to negotiate with the AFAP only in accordance with the national wage case princrples and that the Prime Minister indicated his strong support for this posation. They agree that there was a reference at the meeting, rncludrng the reference by the Prime Minister, to the rndustrial actron of the AFAP (but not to "limited" actron) and to the AFAP's statement to Mr. Justice Coldham that it would not commit itself to negotiating within the national wage case prrnciples. They say that the Prime Mrnister also informed the meetrng, in substance, that the AFAP's industrial action and statement represented a threat to the Accord, the national wage case principles and the Australran wages system.

They also say that at the meeting the arrlines rndicated that there was a need for them to take action to end the dispute with the AFAP and of the fact that such actron might include an applicatron by the aarlines to the AIRC to cancel the relevant awards. They say that the Prime Minister informed the representatives of the arrlines, in substance, that the AFAP had the right to pursue rndustrral claims through the processes of the AIRC if such claims were in accordance with the national wage case principles. He said, in substance, that if the AFAP continued industrial action outside those processes to achieve a claim that was in excess of that permitted by the principles,

the Commonwealth government would support an application by the arrlines to cancel the relevant awards. They say that the Prime Minrster informed the representatives of the airlines, in substance, that the Commonwealth would support any such application m order to protect the Accord, the national wage case principles and the Australian wages system.

They say that Mr. Harris emphasised that any actaon that Australian might take would be independent of the Commonwealth government as Australran was an autonomous statutory corporation, lust as the other airlines were autonomous private companies, and the Prime Mrnister acknowledged that this was the case.

They otherwise do not agree with paragraph 33.

34.    They do not agree with paragraph 34 and refer to paragraph 33.

35.    They do not agree with paragraph 35.

36.    They agree that Sir Peter Abeles informed the meeting that Ansett did not wash to stand down non-pilot employees as a result of the m ' s industrial action and that the Prime Minister and Mr. Morris agreed that this was not desirable. They otherwise do not agree with paragraph 36.

37.    They agree that at the meetang Sir Peter Abeles on behalf of Ansett and Mr. Harris on behalf of Australian informed the Prime Hinister that Ansett and Australian would only negotiate with the AFAP in accordance with the national wage case principles. They say that m response to a request from the airlines the Prime Minister agreed to consider at a later time the possibrlity that the Commonwealth might waive statutory charges otherwrse payable by the airlines in the event that the airlines incurred costs by not standing down non-pilot employees, which costs could have been avoided if the airlines stood down those employees. They otherwise do not agree with paragraph 37.

That also say that at the meeting the Prime Minister said that he would make a statement m the Parliament on the afternoon of the meeting which would set out the Commonwealth's position in relation to the AFAP's andustrial action as communicated to the airlines at the meeting. The Prime Minister made that statement in the House of Representatrves at about 2.00p.m. on 15 August 1989 m the following terms:

"...[W]e are actually aware of the difficultaes that are being created by this totally unjustified action by the pilots. We deplore the recent rolling strike actaon that the domestac aircraft pilots have taken, which, I may say, directly contravenes Australian Industrial Relataons Commission direct~ves. As is well known, I and the Government are totally committed to the centralised wages system and we would like to see the air palots dispute resolved withm that system. That system, of course, contains rrghts but it carries as well obligataons for those within it.

I would like to make at clear that if the pilots refuse to abide by their obligations wrthin the centralased system the Government would support any move for the cancellation or suspension of existing pilots awards and agreements. It must be understood that that would, of

that are provided to them by the centralised system. If	course, cancel all the rlghts and all the protections
the palots choose to go outside the system, this Government would fully support any action by the airlanes to bring the daspute to an early end. The matter is quate simple and straightforward: eather the palots in this country accept the obligations of the award system that entatles them to their rights or they forfeit those rights.""

The basis of the Commonwealth's claim of privilege is indicated by the following paragraphs of an affidavit sworn on

4 July 1991 by Dr Michael Henry Codd, the Secretary of the

Department of the Prime Minister and Cabinet:

"4. I have been informed by Dr Harrison and verily believe that the document partly records discussions at a meeting which took place on 15 August 1989 between the Prime Minister, Mr Ralph Willis, the then Minister for Transport and Communications, Mr Peter Morris, the then Minister for Industrial Relatrons, Sir Peter Abeles of the Third Respondent ("Ansett"), Mr Ted Harris of the Sixth Respondent ("Australran") and other persons including senior government officers. At the time, the domestic airlines and the applicant were engaged in an industrial dispute arising out of a wages claim made by the applicant on behalf of its members.

5.    At the time of the meeting, the Government was assessing the impact of and formulatrng its response to the dispute between the airlines and the applicant having regard to the implications of the dispute for the domestrc aviation industry and for the Government's wages and economic polrcy generally.

6.    I have been informed by Dr Harrison and verily believe that the meetrng was strrctly confrdential as would be my expectation having regard to the nature of the meetrng. It formed part of the process of consultation through which the Government's assessment of the impact of the dispute and its response to the

dispute were being formulated. The Government's actual assessment of the impact of the dispute and its actual response to the drspute are matters of public record.

7.    I have examined the document and consrder that to disclose it would be injurious to the public interest. The deliberations that it records were at the hrahest level of executive government, and involved persons considered by members of the executive aovernment to be necessarv to be consulted confidentially m the formulation of government policy in response to an issue of natronaL rmportance.

8.    Confidentiality is sometimes necessary for the proper working of responsible government. A government cannot function completely in the open; it must be able to preserve, in appropriate cases, the confidential nature of its internal processes, especially at the hrghest levels of policy making. It is fundamental to the publrc interest that the busrness of government be conducted on the basis that a government is able Eo guarantee the confrdentlality of discussions with outside bodies, includinq commercial enterprrses, which have occurred - on a conf identiai basis.

9.   Disclosure of the document would result in breaching the confidentiality of the meeting and compromise the process by which the Government is able to respond to sensative political issues in the future. The representatrves of the airlrnes who attended the meetrng took part in the meeting and conveyed znformation to the Government about the dispute, includrng information about the commercial impact of the dispute on the airlines and the options considered by the airlines to be approprrate to consrder in response to the dispute, on the basis that the meeting was confidential. Persons p-resent at the meeting and other persons generally whom this Government or future governments might wish to obtain information from or consult in the future, might be reluctant to participate in a full and frank fashion rn simrlar discussions if that confidentialrty were breached. Any such lack of co-operation would impede the abilrty of this Government and future governments to obtain rnfonnation and formulate and develop government polrcy in the future.

10.    The document is not a full verbatrm record of the meeting or a set of minutes of the meeting. It is in note or point form.

It has not been approved by persons present as an accurate record of the meeting. It partially records one aspect of the information gathering and policy development process of government on an issue which at the time was particularly controversial. There is a particular sensitivity where views or opinions about a controversial issue are attributed to individual participants attending a meeting in a record which is incomplete and which has not been approved by those individuals as an accurate record. More fundamentally, those participants and other persons dealing with the Government or any future governments on the same basis, have a right to expect that the privacy and confidentiality of their contributions to the discussions would be protected and that any record, be that a full record or one which is only a partial record, would not be d~sclosed."

It is not seriously disputed that, in evaluating a claim- to privilege of the present kind, courts are required to balance the public interest in the proper administration of justice by the full disclosure to all parties of relevant documents against the public interest in the protection from disclosure of documents brought into existence in the course of formulating or implementing government policy. The principles to be applied in making this evaluation have been stated thus by Gibbs A.C.J. in Sankev v Whitlam (19781 142 C.L.R.l at 43:

"The fundamental and aovernina ~rinci~le is that documents in the ~~~ ~

class may be withheld gram prozuction only when this is necessary in the ~ublic interest. In a ~art~cular case the court must balance the genekal desirability that-documents of that kind should not be

care, giving full weight to the reasons for preserving the secrecy of

disclosed against the need to produce them in the interests of justice. The court will of course examine the question wlth especial

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 wath 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. In view of the danger to which the indiscrimanate disclosure of documents of this class might give rise, it LS dealsable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made."

It is clear from the extracts from the respective contentions of fact and law which I have reproduced that what occurred at the meeting of 15 August 1989 is of central relevance to the substantive issues in this case. Prima facie therefore a contemporaneous first-hand record although noting only a small part of what was said at the meeting, should be disclosed. Against that conclusion must be balanced the public interest in the free and frank exchange of views and information between representatives of the government and the protagonists on either sides or both sides, of an industrial dispute which is seen as having far reaching consequences for the economy of the country or for the maintenance of its system of industrial relations. That desirable element of candour would obviously be imperilled if there were a perceived risk of disclosure while the industrial dispute was alive, or so shortly after it had ended that a protagonist could be weakened in the performance of a continuing important function if its motives, strategic or tactical thinking or financial or other resources were laid bare. In an analogous context, Gibbs A.C.J. in Sankev v Whitlam (supra) observed, at 41:

"Although	t h e statement t h a t cabinet	documents	and	o t h e r papers
concerned wrth p o l i c y decis ions a t a high l e v e l	( " s t a t e papers",	as	I

henceforth c a l l them) a r e Immune from d i sc losure w a s repeated i n

Conwav v R i m e r [l9681 A.C. 910, it accords ill with t h e p r i n c i p l e s

affirmed i n t h a t case. The fundamental p r i n c i p l e i s t h a t documents

may be withheld from d i sc losure only i f , and t o t h e ex ten t , t h a t t h e

public i n t e r e s t renders rt necessary. That p r i n c i p l e i n my opinion

must a l s o apply t o s t a t e papers. It is impossible t o accept t h a t t h e

public i n t e r e s t r e q u i r e s t h a t a l l s t a t e papere should b e kept s e c r e t

f o r ever, o r u n t i l t h e y a r e only of h i s t o r i c a l i n t e r e s t . I n some

cases t h e l eg i t ima te need f o r secrecy w i l l have ceased t o e x i s t a f t e r

a	s h o r t time has elapsed;	t h i s w i l l be	so,	t o t a k e Lord Widgery's
example when	new	t a x a t i o n proposals have passed	i n t o l egas la t ion .	I n

o ther cases it may be necessary t o m a ~ n t a i n secrecy f o r many years.

This may be ao where t h e documents concern na t lona l s e c u r i t y o r

diplomatic r e l a t i o n s , t o g ive two obvious examples. I n o t h e r words

state papers do not form a homogeneous c l a s s , a l l t h e members of

which must be t r e a t e d a l ike . The subjec t mat ter wi th which t h e

papers d e a l w i l l b e of g r e a t importance, but a l l t h e circumstances have t o be considered i n deciding whether t h e papers i n ques t ion a r e e n t l t l e d t o be wlthheld from production, no mat t e r what they individual ly contain."

In my view, disclosure of part of what was said at a meeting like that of 15 August 1989 after an interval of more than two years and after the dispute which impelled the meeting has long lost its industrial and economic immediacy could not reasonably be regarded as imperilling the element of candour to which I have just referred. I am reinforced in that view by two considerations. First, the fact that the meeting took place is openly acknowledged by all the participants and part of what occurred at it has been the subject of evidence in an action for damages by the airlines against the Federation in the Supreme Court of Victoria. Secondly, although both Ansett and Australian are parties to these proceedings, neither has thought it appropriate to contend that Dr Harrison's note should be preserved from disclosure. Of course, I am mindful that the Commonwealth Government was here a protagonist, or at least critically involved, in the relevant industrial dispute. However, that does not deny weight to the attitude which I have imputed to each of the airlines.

published reasons for judgment in Northern Land Council v The	Since this motion was argued, a Full Court of this Court has
Commonwealth and Enerav Resources of Australia Limited (unreported 3 September 1991). That judgment contains a useful analysis of the case law and provides instructive guidance on how the balancing exercise involved in assessing a claim for immunity based on public interest should be carried out. I have taken into account, as far as they are applicable to the present case, the factors illustratively listed as relevant at pp 80-81 of the Full Court's reasons. However when tested by reference to those factors my conclusion that the balance tends in favour of disclosure remains undisturbed.
Mr Shaw Q.C. for the Commonwealth urged that if I were
tentatively disposed to order production of Dr Harrison's note I should first inspect the document to satisfy myself that production ought to be ordered. In Alister v The Oueen (1984)
154 C.L.R. 404 Gibbs C.J. noted, at 414 that:

"Both Burmah Oil Co. Ltd. v Bank of Enaland [l9801 A.C. 1090 and Air Canada v Secretarv of State for Trade [l9831 2 A.C. 394 support the vrew that where the Crown objects to the production of a class of documents on the ground of public interest rmmunity, the judge should not look at the documents unless he is ~ersuaded that ins~ection

would be likely to satisfy him that he o u g k to order production; in the words of Lord Wilberforce in Arr Canada v Secretarv of State for

Trade [l9831 2 A.C. at p.439,, he must have "some concrete ground for belref whrch takes the case beyond a mere 'fishinar exuedition". In the latter case the House of fords drvided on th; queition whether, before rnspectron is ordered, the documents should appear likely to support the case of the party seeking drscovery, or whether it as enough that they should appear lrkely to assist any of the parties to the proceedings; the majority favoured the former vaew. In both cases the proceedrngs were cavil and not criminal. Just as in the balancing process the scales must swing in favour of discovery af the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankev v Whitlam [l9781 142 C.L.R. at pp.42, 62) , so, in consaderrng whether to inspect documents for the purpose of decrding whether they should be disclosed, the court must attach specaal weight to the fact that the

proceedings. Although a mere "fishang" expeditron can never be

documents may support the defence of an accused person in criminal

allowed, at may be enough that it appears to be "on the cards" that the documents will materaally assist the defence. If, for example, rt were known that an important witness for the Crown had grven a report on the case to AS10 it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justrce had not been seen to be done."

The approach taken by the High Court in Alister v The Oueen

was endorsed by Bowen C.J. in Youna v Ouin (1985) 59 ALR 225

by Bowen C.J. who first said, however, at 226:

"Where a claim of public interest immunity is made in respect of documents it is for the court to decade 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 (Conwav v Rimmer [l9681 AC 910 at pp 952, 953 and 971, and see Air Canada v Secretarv of State for Trade [l9831 2 WLR 494)."

I do not regard those authorities as laying down an inflexible rule that this Court must inspect a document before deciding on a balance of the competing public interests, to overrule a claim of public interest immunity. The approach to be taken to the exercise of the discretion to inspect or not inspect was recently indicated by the Full Court in Northern Land Council v The Commonwealth and Enercw Resources of Australia Limited (supra) where it was observed, at 78:

"The Hagh Court in Alister's case did not lay down any rule of law to bind the judges of thas Court in determin~ng whether in a civil case where discovery has been given and a claim of public interest immunity made on proper grounds, the documents in question should be inspected and whether they should be disclosed to the parties. Given the provisions of 0.15 rr.14 and 15 of the Federal Court Rules, which are less confined than those in RSC 0.24 r.13, under which the English cases were decided, this Court is free to take a somewhat broader approach bearing m mind nevertheless that under 0.15 r.15

production of a document must be "necessary at the time when the

order is made".

In taking that approach in this case, the Court does not need to advert to the possibility of purely speculatave inspection or fishing expeditions for it is not an dispute that the documents m question relate to matters in assue between the parties, at least to the extent that they may lead to a train of anquiry which will either advance the applicant's case or damage that of its adversary. And it follows as a matter of logic that there is a likelihood, in the sense of a finite, non-trivial probability, that the documents will advance the Council's case or damage that of the Commonwealth."

Its inclusion in the Commonwealth's list of documents implies a concession of a similar likelihood that Dr Harrison's note may advance the Federation's case or damage that of the Commonwealth. My assessment of the strength of that likelihood would necessarily be made with a limited appreciation of the case which each side seeks to make out. Accordingly, I consider that I should only undertake that assessment if I were persuaded that the competing public interests were otherwise very finely balanced.

My inclination not to inspect the document is reinforced by the fact that its claim to public interest immunity arises because of its membership of a class of documents recording confidential communications to or by the Government in relation to an industrial dispute. The immunity is not said to arise from its intrinsic contents but from the circumstances of the meeting at which it was made and from the fact that it was an incomplete record of that meeting and not approved by the persons whose statements it purports to record or summarise. Presumably, those features will be apparent on the fact of the document if it is disclosed, or can be demonstrated by the persons concerned if they consider it

necessary. Those features do not take the document outside	the general class of communications made by or to the
Government in the course of formulating policy.
In that sense the claim to immunity is similar to that discussed by the House of Lords in Lonrho Ltd. v Shell Petroleum Co. Ltd. [l9801 1 WLR 627 where Lord Diplock observed, at 638:

"My Lords, as was fully recognised by the judge and the Court of

Appeal, t h i s claim t o public in teres t immunity from discovery was a claim for non-disclosure not because of the contents of the individual documents but because of the c l a s s t o which they belong. Like a l l c l a s s claims the bas i s of it i s pour encourager les autres."

I have evaluated the claim to immunity as a class claim of

just that kind and have concluded that in all the circumstances it should not prevail over the public interest in the due administration of justice which requires disclosure to an opposing party to litigation of a concededly relevant document in the possession or power of the other party. Accordingly, I order that the first respondent produce for inspection by the applicant's solicitors the document described in paragraph 3 of Part 2 of Schedule 1 of the first and second respondent's lists of documents as "notes made by Dr David Harrison of the Department of Prime Minister on 15 August, 1989."

I further order that the first respondent pay the applicant's costs of and incidental to the motion on notice dated 5 June 1991, such costs to be taxed.

I certify that this and the

preceding thirteen (13) j	pages are a true copy of
the Reasons for Judgment of	I :
His Honour M r Justice Ryan	i '

Associate:

Date: 10 E ~ L C C U ~ / Y 1492

I I

Counsel for the Applicant:	Mr A North QC with
M r A Cavanough
Solicitor for the Applicant:	Mahony & Galvin
Counsel for the Respondent:	Mr B Shaw QC with Mr K Bell
Solicitor for the Respondent:	Australian Government Solicitor
Date of hearing:	22 July 1991
Date of judgment:	10 February 1992