Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No. NG375 of 1997
  )
GENERAL DIVISION                 )

BETWEEN:CANWEST GLOBAL COMMUNICATIONS CORPORATION

First applicant

CGS SHAREHOLDING (NETHERLANDS) BV

Second applicant

DRIE STERREN KAPITAAL (NEDERLAND) BV

Third applicant

AND:TREASURER OF THE COMMONWEALTH OF AUSTRALIA

Respondent

CORAM:HILL J.
PLACE:SYDNEY
DATED:14 JULY 1997

REASONS FOR JUDGMENT

Counsel for Canwest Global Communications Corporation ("Canwest") has sought to tender a document which is in essence the submission that was prepared for the respondent, the Treasurer, as part of the decision‑making process whereby the Treasurer concluded that certain assets should be divested and "transactions be unwound". The document emanates from the Foreign Investment Review Board ("FIRB") a body of persons made up of public servants and others who advise the Treasurer. The board has no statutory existence but the Treasurer in administering the Foreign Acquisitions and Takeovers Act 1975 (Cth) looks to this body for advice.

It is a criterion of the Treasurer exercising power to order divestment under that legislation that the national interest be considered.

The material comprised in the document, which has been marked C16 in the bundle of documents, for which public interest immunity was claimed on 19 July 1997 concerns the transactions that have been entered into by Canwest and other parties to the proceedings before me. Objection is taken to the tender on the basis that, in accordance with s50 of the Federal Court of Australia Act 1976 (Cth) an order for confidentiality should be made that the material in question be kept confidential and not made available to the public. Section 50 is in wide terms. That section says:

"The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth."

The reference to "prejudice to the administration of justice" is a reference to prejudice to administration of justice generally. It is a criterion which has been widely interpreted, see for example the judgment of Bowen CJ in the Australian Broadcasting Commission v Parish (1980) 43 FLR 129 and most recently the decision of the Full Court of this Court in The State of Western Australia v Ben Ward (unreported, 8 July 1997, Hill, Branson and Sundberg JJ) where orders for the restriction of gender specific evidence were made.

The section requires that there be balanced against the order sought the interests of the public in the openness of litigation. It is fundamental to a free society that evidence be given in open court and that the public not believe that evidence is being kept from it. However, there will be circumstances as, for example, where a person might not give evidence at all, rather than reveal the substance of confidential material, where an order under s50 will be appropriate. It is impossible to list the circumstances when s50 would require, in the interests of justice, an order restricting particular evidence from being made available to the public.

Senior counsel for the Treasurer relies upon an affidavit of a Mr Hinton read in the public interest immunity proceedings as the basis for his application. Mr Hinton's affidavit points to two matters which have been referred to this morning. The first is the difficulty which Mr Hinton suggests might arise in obtaining persons to become members of the FIRB if their deliberations in a particular case meet the light of day. That is total speculation on the part of Mr Hinton. There is not a jot of suggestion from any member of the board that they might not have joined the FIRB had the possibility of evidence being made available in a court under compulsion. I see no reason why public spirited persons should be reticent in joining an advisory body solely because, if Court hearings eventuate, the value of their advice could be subject to scrutiny.

Second, and the real gravamen of the objection to the evidence being made public, is the fact that it comes from a body that is concerned with matters of national interest. I fully accept that there will be circumstances where deliberations of that body ought not to be made available in a particular case. I asked counsel for the Treasurer to indicate in respect of the particular document tendered what possible danger there could be to the public interest in the material being published. He referred me to a paragraph in the material where reference is made to the fact that it is possible for the Government to change policy.

It will come as an immense surprise to the public to learn that the Government may possibly change policy. No doubt the mandarins in Canberra are trembling at the possibility of this piece of information being disclosed.

I have to say I have read the document in its entirety. It concerns the affairs of Canwest and others who are parties to this litigation. They have no objection to it being made available and there is absolutely nothing in the report that in any way could prejudice the interests of Australia or otherwise the interests of justice were it disclosed. No doubt Australia's international reputation is threatened by the disclosure of this self evident statement.

Far from it. It is in the interests of justice that government decision making be, unless the public interest otherwise requires, transparent. I have the decided feeling that there is an attempt to keep this material secret so that the public does not see what goes on behind closed doors. It is not in the interests of the administration of justice that I encourage such secrecy for its own sake.

In my view, the material is properly admissible and I would mark it accordingly Exhibit T1 in the proceedings involving Canwest against the Treasurer.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for judgment of the Honourable Justice Hill.

Associate:
Date:

Counsel and Solicitors for R B S Macfarlan QC and J E

the applicants: Griffiths instructed by
Clayton Utz

Counsel and Solicitors for     D M J Bennett QC and
the respondent:                A S Bell instructed by
  Australian Government
  Solicitor

In the case of Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia, the applicants, Canwest Global Communications Corporation, CGS Holding (Netherlands) BV, and Drie Sterren Kapitaal (Nederland) BV, sought to tender a document that originated from the Foreign Investment Review Board (FIRB). This document was prepared as part of the decision-making process regarding the divestment of certain assets and the unwinding of transactions. The Treasurer of the Commonwealth of Australia, the respondent, objected to the tender of this document on the basis of public interest immunity, claiming that the disclosure of the document could prejudice the administration of justice and the security of the Commonwealth. The Federal Court of Australia, presided over by Justice Hill, was tasked with determining whether the document should be kept confidential or made available to the public.

The central legal issue before the court was whether the document in question, which contained advice from the FIRB to the Treasurer, should be subject to a confidentiality order under section 50 of the Federal Court of Australia Act 1976. This section allows the Court to restrict the publication of evidence if it is necessary to prevent prejudice to the administration of justice or the security of the Commonwealth. The court had to balance the general public interest in the openness of litigation against the potential harm that could result from the disclosure of the document. The Treasurer's counsel argued that the disclosure of the document could deter individuals from serving on the FIRB and that the document contained sensitive information concerning national interests. The applicants, on the other hand, argued that the document should be made public to ensure transparency in government decision-making.

Justice Hill examined the arguments presented by both parties and considered the content of the document. The judge noted that the speculation regarding the potential impact on the composition of the FIRB was unfounded, as there was no evidence that current or potential members were deterred by the possibility of their advice being disclosed in court. The judge also found that the document did not contain any information that could prejudice Australia's national interests or the interests of justice if made public. The judge emphasised the importance of transparency in government decision-making and rejected the argument that the document should be kept secret for its own sake. Consequently, the court ruled that the document was properly admissible and marked it as Exhibit T1 in the proceedings. The judge's decision underscored the principle that, in the absence of a compelling public interest, government decision-making should be open to public scrutiny.

As a result of the court's ruling, the document prepared by the FIRB was made available to the public and marked as an exhibit in the litigation between Canwest and the Treasurer. This decision reinforced the importance of transparency in government decision-making processes and the need to balance the interests of confidentiality with the broader public interest in the openness of litigation. The ruling also highlighted the judiciary's role in ensuring that government actions are subject to public scrutiny, thereby upholding the principles of accountability and transparency in a democratic society.

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Background to the litigation

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Reasons for decision

Legal Principle Established