Australian Nursing Federation v Victorian Hospitals' Industrial Association

[2011] FWA 8971

[2011] FWA 8971

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Australian Nursing Federation
v
Victorian Hospitals' Industrial Association
(B2011/4041)

Health and welfare services
COMMISSIONER JONES	MELBOURNE, 23 DECEMBER 2011

Order requiring production of documents under s.590 - application to refuse order - public interest immunity

[1] This Decision concerns an Order issued under s.590(2)(c) of the Fair Work Act 2009 (the Act), requiring the Secretary, Department of Health to produce to Fair Work Australia (FWA), “any document comprising or recording an employer and/or management log of claims in existence at May 2011” (the Order).

[2] The State of Victoria, represented by Mr Green QC, appeared with a bundle of documents, contained in a sealed envelope, answering the class sought in the Order.

[3] The State of Victoria submits that the documents are immune from production, as they are within a recognised “class” of documents attracting the doctrine of ‘public interest immunity’. As a consequence, they are prima facie exempt from production.

[4] Having carefully considered the submissions of the State of Victoria, the Australian Nursing Federation (ANF) and the Victorian Hospitals’ Industrial Association (VHIA), I decided at the conclusion of the hearing in relation to this matter, to set aside the Order. I provided an oral decision.

[5] The following are the edited written reasons for my decision.

[6] First, I am informed that the bundle brought to FWA, in respect of which immunity from production is sought, are documents which comprise an Attachment to a Submission made to the Cabinet of the Victorian Government in or around May 2011 (Cabinet Submission). The Cabinet Submission has become a public document, by publication by a newspaper, but not the Attachment.

[7] The subject matter of the Attachment to the Cabinet Submission is in relation to a matter which is both contemporary and controversial. Namely, the bargaining for a proposed new nurses agreement in the Public Health Sector.

[8] I have had regard to the following relevant principles developed by the Courts. These are:

• Public interest immunity applies to “papers brought into existence for the purpose of preparing a submission to Cabinet”: Sankey v Whitlam (1978) 142 CLR 1 per ACJ Gibbs at p.39



• In civil proceedings, in relation to documents recording “cabinet deliberations”, it may be doubted “whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings”: Commonwealth and Northern Land Council [1993] 176 CLR 604 at p.618

[9] I am not satisfied, as is submitted by the ANF, that having regard to the text of the Cabinet submission, the Attachment is a document being a log of claims adopted by Employers namely the VHIA and its members.

[10] The text of the submission, so far as reference to the Attachment 1 is made, does not suggest a conclusion to that effect. I also had regard to the sworn evidence of Mr Djonoff in the proceedings that as at May 2011, there was not an Employer log of claims in existence but rather working documents or “work in progress” 1.

[11] In these circumstances, inspection of the documents would result in the vice identified by the High Court in the Northern Land Council Case, namely:

“[t]o 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. The apparent dilemma is, we think, to be resolved by recognising that the classification of claims for immunity into “class” claims and “contents” claims is indeed often rough and imprecise. 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.” 2: at 617

[12] I am satisfied, therefore, that the documents in the sealed envelope attract public interest immunity and should not be subject to an Order under s.590(2)(c) of the Act.

COMMISSIONER

Appearances:

Mr E. White of Counsel and Mr J. McKenna of Counsel- Australian Nursing Federation

Mr F. Parry SC - Victorian Hospitals’ Industrial Association

Mr N. Green QC and Mr. A. Bell of Counsel for The State of Victoria (as Intervener)

Hearing details:

Friday, 16 December 2011

Final written submissions:

 1   PN 808-809, 860

 2   At 617

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