Commonwealth of Australia v Northern Land Council - [1992] HCATrans 157

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M62 of 1991
B e t w e e n -
COMMONWEALTH OF AUSTRALIA

Appellant

and
NORTHERN LAND COUNCIL

First Respondent

and
ENERGY RESOURCES OF AUSTRALIA
um

Second Respondent

MASON CJ

BRENNAN J
DEANE J

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26/5/92

DAWSON J

TOOHEY J -

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 26 MAY 1992, AT 10.16 AM

MR D. GRAHAM, QC:

May it please the Court, I appear with my

learned friend, MR A. ROBERTSON, for the appellant.
(instructed by the Australian Government Solicitor)

MR A.R. CASTAN, QC:

May it please the Court, I appear with

my learned friend, MR R.W. BLOWES, for the
respondent, Northern Land Council. (instructed by
Mr Brett Midena, Principal Legal Adviser, Northern
Land Council)

MR K. MASON, QC, Solicitor-General for New South Wales:

appear with my learned friend, MR S.J. GAGELER, for
the Attorney-General for New South Wales, who seeks
leave to intervene to put some submissions about
the proper role of an appellate court in relation
to matters of public interest immunity and the
factors generally to be taken into account.
(instructed by the Crown Solicitor for New South
Wales)

MR B.M. SELWAY:

If it please the Court, I appear with my

learned friend, MR G.J. PARKER. We seek leave to
inte~ene on behalf of the Attorney-General for
South Australia, to put submissions to the Court on
the proper principles to be applied in determining
public interest immunity questions. (instructed by
the Crown Solicitor for South Australia)

MASON CJ: What is the attitude of the parties to the

applications for leave to intervene?

MR GRAHAM:

If the Court pleases, the Commonwealth is

content that leave be granted to each of the
parties seeking leave.

MR CASTAN:	That is also our position, if the Court please.
MASON CJ: Leave will be granted to the two applicants for

leave to intervene. Before you start, Mr Graham, I
should say that the Deputy Registrar has certified
that she has received a letter from the solicitors
from the second respondent indicating that they do
not wish to appear at the hearing.

MR GRAHAM:

If the Court pleases. May we hand to the Court

at this stage two documents, one being an outline
of argument with an attachment to it and the other
being a document entitled "Corrigendum" which I
will deal with very briefly at the outset.

MASON CJ: Yes.

MR GRAHAM:

If the Court pleases, the document entitled

"Corrigendum" contains a correction to the reasons
for judgment of the Full Federal Court, of which we
only became aware last week and we provided to the

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Court. It does not seem to be a matter of any
great moment; it simply corrects what appears to
have been a misquotation from an article written by
Mr Michael Codd in a work which is referred to at
page 225 of the appeal book.
If the Court pleases, this appeal against a

decision of the Full Court of the Federal Court is
concerned with issues of public interest immunity,
which have arisen at the highest level of the

national government. The relevant immunity is that
which applies in respect of communications between
members of Cabinet in the course of their
deliberations and to written records of those
communications contained in what are called Cabinet
notebooks. The question in this appeal arose in
the following way: the appellant had included in
its list of discoverable documents in this action
133 Cabinet notebooks on the basis that those
notebooks contained entries which were documents
relating to any matter in question between the
appellant and the Northern Land Council within the
meaning of Order 15 rule 2 of the Federal Court

Rules. A claim for public interest immunity was
made in respect of those entries on behalf of the
appellant, being supported by affidavits sworn by
Anthea Tinney, which commences at page 103 of the appeal book and supported by Michael Codd, then the
Secretary of the Department of Prime Minister and
Cabinet, which begins at page 145. That evidence
is conveniently summarized in the judgment of the
Full Federal Court at pages 207 to 214, and I will
not take up the Court's time in going through it.
His Honour Justice Jenkinson made an order

requiring the appellant to produce the entries in
the Cabinet notebooks for inspection, such
inspection to be limited to three persons named in
the order, all of whom were legal practitioners
retained by the Northern Land Council.

Justice Jenkinson accepted that the entries in
question were entitled to public interest immunity
and that the appellants' claim for such immunity
was established by the evidence. The most
important part of His Honour's reasons for making
the order are to be found in the appeal book at
page 170 to page 172. I shall not take up time
reading the passage in question as the Court will
have seen it. The passage commences three lines
from the bottom of page 170 and His Honour
indicated that in his view:
Records -

contained in the Cabinet notebooks were -

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likely to disclose whether any consideration
was given -
be members of Cabinet to certain matters regarded
as relevant in this action.
His Honour went on to express the view that

the probability in his opinion was strong that the
entries in the notebooks would afford information
by which the case of the NLC might be advanced, or
that of the Commonwealth might be damaged.

MASON CJ: What page is that?

MR GRAHAM: That is at page 170 I began, Your Honour, and I

went on from the bottom and over to page 171.

MASON CJ: Yes, I see.

MR GRAHAM:

And at the top of page 172 His Honour indicated, in his view, there was a balance:

clearly in favour of granting inspection -
of the entries -
to the legal representatives of the applicant.

He went on at line numbered 20 to indicate that he
thought that the entries in question:
will in my opinion afford information of the
required kind by what they do not contain as
well as by what they do contain.

And he then went on, and I will just read this
passage, starting at line 25:

For that reason, the order will be for
inspection of all entries concerning events
which occurred before the impugned agreement
was made and which relate to the agreement or
to negotiation for it. And for that reason,
and because the material in the court file,
much less the evidence adduced for and against
the motion, does not equip me to weigh the
value to the applicant of the entries, I have
not myself inspected them. Counsel for the
Commonwealth did not invite me to inspect the
entries, nor suggest that inspection would
enlarge or intensify my perception of any of
the considerations against granting
inspection. And the orders I propose to make
will preclude disclosure of the information
afforded by the entries further than to the applicant's legal advisers until a judge of

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the court has had the opportunity to inspect
the entries, if he should think fit.

TOOHEY J:

Does that mean, Mr Graham, that the balancing

process referred to in the judgment has not
foreclosed?

MR GRAHAM: It has not foreclosed, Your Honour, but our

submission will be that it has not yet been
undertaken in the sense that the authorities
require it to be undertaken, but that it some
distance further on in these submissions,
Your Honour.
The appellant appealed from the decision of

His Honour primarily relying on three grounds. The
first was that the entries were entitled to an
immunity based upon public interest grounds which
did not yield to competing aspects of the public
interest. The second argument advanced before the
Full Federal Court was that the Northern Land
Council had not, on the evidence before
Justice Jenkinson, made out a case in favour of
disclosure of sufficient strength as to require
that the court should engage in the balancing exercise between the competing aspects of the public interest. Thirdly, it was contended that
Justice Jenkinson had been wrong in ordering production of the documents upon a limited pasis to legal practitioners without first having engaged in
the required balancing exercise himself.
The Full Court of the Federal Court rejected

the first of the applicants' submissions, and its
reasons are at pages 242 to 256 of the reasons for
judgment; The court did not find it necessary to
deal with the second contention concerning the
sufficiency of the strength of the NLC's case
because the Full Court concluded that a case for
disclosure was established by the mere fact that

the entries in the Cabinet notebooks had been
discovered by the appellant, and thereby conceded
by the appellant to be documents relating to a
matter in issue between the parties.
Their Honours' reasons in that regard appear in the
appeal book at pages 256 to 272.
Just by way of introduction, and we will come

to this in greater detail, Their Honours referred to statements contained in decisions of the House
of Lords and in the decision of this Court in
Alister v Reg, which indicates a more stringent
threshold test but Their Honours distinguished
those statements.
In dealing with our third contention, the Full

Court did not deal with what the appellant submits

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to be an inconsistency in the order under appeal,
namely that there should be production and
inspection of the documents ordered so that the
court might determine whether the immunity should
be breached by granting production and inspection.
Their Honours took the view that the matter before
Justice Jenkinson was, in substance, a matter
involving the exercise of a judicial discretion.
Before going to our outline of argument, we

just desire to make a few further general
observations. There are to be found, in many of
the judgments in the area of public interest
immunity, statements which appear to recognize that
Cabinet documents, as they have been referred to,
form a class to which a high degree of public
interest immunity attaches.
For the sake of saving time, what we have done

is to attach to our outline of argument, that is
the last two pages, a series of references to
statements from judges in both England and in this

country to that effect. I will not take up the
Court's time in going through all of those
statements; many of them will be familiar to
Your Honours.
If one looks at those references, one finds

that the documents included in the class to which
the high degree of immunity is said to attach
consist of submissions to Cabinet and minutes
recording actual decisions by Cabinet.
In the authorities, the reasons assigned for

accepting that a high degree of public interest
immunity attaches to such documents at one time
stressed the need to ensure frankness and candour
in the inner councils of government. That reason
appears to have lost favour subsequently and one

more frequently finds that the reason given is that
disclosure would cause ill-formed or captious
public and political criticism and the creation of
difficulties in the performance of the business of

government. We will have to come back to those two
grounds of supporting the existence of the public
interest immunity a little later.
The fact that differentiates this case from most of the earlier cases is that the disclosure of
the documents in question would involve a direct
revelation of the proceedings and deliberations of
the Cabinet of its decision-making processes and of
the views of individual ministers expressed in the
course of those processes, whereas earlier
documents that have been discussed, submissions to
Cabinet and minutes of decisions, the disclosure of individual opinions either would not emerge or

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would, one would expect, emerge only as a matter of
inference.

DAWSON J:	How do we know that?
MR GRAHAM:	In the present case, Your Honour?

DAWSON J: Yes.

MR GRAHAM:

Your Honour, one does not know a great deal

about the contents of the Cabinet notebooks.
Your Honour will have seen the affidavit material which indicates that they are not necessarily a
direct or full transcript and they do not record
the views of all ministers expressed in Cabinet
discussions. But the material indicates that they
do record some of the views recorded by some
ministers in the course of Cabinet deliberations,
despite the fact that their primary purpose is
designed to create a record which will provide a
basis for the formulation of the formal minute of
Cabinet.

DAWSON J: Can we take into account the purpose for which

they are sought in inferring what the contents are?

MR GRAHAM:

One can, Your Honour, but the affidavit material

does indicate that they seem to go, in some cases
at least, beyond merely a note of what the ultimate

resolution or outcome was. If they were confined
to that, there perhaps would not be a problem, but
the affidavits do indicate that there is material
that goes beyond merely a note of the decision as
reached.

TOOHEY J: But if there were absolute immunity attaching to

this type of document, that would be one course of
argument. But if the proposition falls short of
that, what is it in the order that is subject to

attack in this appeal?

MR GRAHAM:

Your Honour, I will be beginning a long way

ahead of myself if I answer the question now.

TOOHEY J:

I am sorry, I did not want to divert you in the

course of argument, but just to draw the
distinction between a situation in which absolute
immunity is contended for with something short of
that that is accepted.

MR GRAHAM:

We would submit, Your Honour, that - our first

submission is that there is absolute immunity in
substance, and His Honour ordered that there should
be inspection and that breaches the immunity of
itself, even if it is only to three people. But
that breach is expressed in terms which contemplate
that there should be a production to a wider group

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of persons than those three named in the order, so
that the vice from His Honour's order extends
beyond just the initial production.

TOOHEY J: Because it contemplates after further argument?

MR GRAHAM:

Yes, and therefore there is a breach of the

immunity ordered in the first instance and a
further breach contemplated as a consequence of
what will flow from inspection.

DAWSON J: While you are interrupted, Mr Graham, what

function were the legal practitioners who saw these
documents to perform?

MR GRAHAM:

It is not altogether clear, Your Honour, from

the course which this case has taken so far,
whether they were to do no more than look at the
entries to see whether there was anything there
that they really wished to press, or it may have
been that they were to look at the documents or the entries and find entries which could be the subject
of argument as to whether they should be the
subject of more general disclosure, so that having
looked at the entry the court could undertake a
balancing exercise.

DAWSON J: A sort of sifting process?

MR GRAHAM:

Your Honour puts it, with respect, very well, a

sort of sifting process.

TOOHEY J: But sifting in the context of public immunity,

not sifting in the context of relevance? Sorry, I
meant that as a question not as a statement.

MR GRAHAM:

It would be a question, Your Honour, not so much

of relevance as significance in weight. Relevance,
in the broader sense, is conceded.

TOOHEY J: That is the point, is it not, the fact that they

are discovered.

MR GRAHAM:	It means that they are conceded to be relevant in the broadest sense, but the exercise appears to
be that the practitioners will look to see what utility these entries might have, and what weight
might be accorded to them in the course of the
trial. But I am, I think, speculating,
Your Honour, in saying that, but that is the way in
which we have understood the form of procedure as
envisaged by His Honour.

If I can turn then to our outline of
submission. In paragraphs 1 and 2 under the
heading "Public Interest Immunity of Entries in
Cabinet Notebook", we say that entries in Cabinet

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notebooks recording the proceedings and
deliberations of Cabinet are entitled to an
immunity from disclosure which does not yield to
competing aspects of the public interest. Where a
document falls within this limited category, its
disclosure should not be ordered. The weight of
the public interest which would deny disclosure
should be regarded as necessarily outweighing the
competing aspects of the public interest.

MASON CJ: So that this immunity would cover entries in

Cabinet notebooks relating to a matter that, in a
sense, was dead and buried?

MR GRAHAM:

Yes, Your Honour. moment, but the short answer to Your Honour is that

I will come back to this in a

it is not the matter that is the subject of the
discussion recorded in the Cabinet notebook that

matters. It is the prospect that it might be
hereafter disclosed whether soon or in the distant
future which creates the vice which that prospect
that we say impinges upon the principle of
collective responsibility of Cabinet, and it does
not matter whether the subject-matter is of great

moment or less moment. We seek to make that
proposition good in a moment.
The court, when confronted with a problem of

this kind, would, of course, have to satisfy itself
that the documents did indeed answer the
description of being a record which contained
details of deliberations in Cabinet. And as I have
said, these entries in the Cabinet notebooks are
different from what has been considered in previous
cases because the entries do appear from the
affidavit material to be capable of providing
direct evidence of what is said in Cabinet and the
individual opinions of ministers.

McHUGH J: Are you drawing a distinction between Cabinet

discussions concerning policy and matters of
administration? For example, if Cabinet decides to
adopt some policy and legislate for it, what is the
difference between Cabinet's discussion and, say,
the Caucus discussion of a parliamentary party?

MR GRAHAM:

Your Honour, logically we cannot concede a

distinction of the kind that was indicated in the
first part of Your Honour's question because it
seems to involve drawing a distinction which might
be extremely difficult to draw in practice, but
also it would involve a concession that really
would make it impossible to sustain the main

argument. As to disclosures iri Caucus,
Your Honour, I am not quite certain how they happen and how much is disclosed, but - - -

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McHUGH J:

I do not think anyone has been bold enough to

claim public interest immunity for those.

MR GRAHAM:

No, Your Honour, and fortunately it is not the

concern of the Commonwealth Government of whatever

political hue to make such a claim. My learned
junior says, I hope not naively, that they are not
the decision makers.
Turning to the third point in the outline, we

say that the fundamental importance of the
principle of Cabinet responsibility of members of
Cabinet for the decisions of Cabinet and of the requirements of confidentiality which are essential

to support the principle of collective
responsibility have not been questioned in this

case. The existence of the principle was
established, if one needed evidence of it, by the
affidavit evidence that was filed, and it was
accepted as being a principle of fundamental
importance by the Full Court which dealt with the

matter at length. The relevant passage on this
topic is at pages 221 to 234, and again I shall not
read the lengthy discussion of the matter by - - -

McHUGH J:

I am sorry to interrupt you, but why should one

accept the principle of collective responsibility
of members of Cabinet uncritically? At least in
relation to domestic matters, why has the public
not got a right to know that Cabinet is divided,
very narrowly perhaps, 7 to 6 in favour of or
against a particular policy?

MR GRAHAM:

Your Honour asked the question which seems to

have not been raised by either lawyers or political
scientists and perhaps the answer lies in
considerations such as these. It was once said
that we must all hang together for otherwise we
will all for certain hang separately. But perhaps
the better reason is that the authority of the
decision of the Government, being a government

which makes its decisions through a Cabinet, would
be undermined and weakened if it was perceived that
the decision that was to guide the country perhaps
in matters of very great importance was on a finely
split decision.

McHUGH J: That is why I asked you about a difference

between matters leading to legislation and matters
dealing with administration.

MR GRAHAM:

Yes. At the moment it is - I can see why Your Honour asked that question, in the light of

Your Honour's most recent question.

It may be that

I can do no better than to say how is one going to draw the line and is one free to allow individual

Cabinet ministers to say, "Well, I didn't agree for

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a moment that we should legislate for that for this
budget, but we should do that next year because it

is closer to the election.". On the other hand, it
might be thought to be a matter of very great
importance nationally that a particular matter be

implemented now rather than later. So that one can
find that implementation was not necessary. It is
simply a matter of implementation that matters of
policy would mingle.

McHUGH J: Can I just ask you one further question and then

resume my silence? Have you looked at or got a
copy of Mr Justice Hope's judgment in the Coombe
and Ivanov Royal Commission on this matter?

MR GRAHAM:

Yes, I have looked at it, Your Honour, and we

are aware of what happened in that case when the
Cabinet notebooks saw the light of day for the
first and, I think, the only time in a public

forum. I have read His Honour's reasons in that
case.

McHUGH J: I, for one, would be grateful if I could have a

copy of His Honour's reasons. I have not seen it
referred to anywhere.

MR GRAHAM:

Yes, I will have that provided to Your Honour in

the course of, I hope, the day. My copy is in
Melbourne, unfortunately.
Just concluding those references, the Full

Court's discussion on the topic of collective
responsibility is to be found in particular at
pages 223 to 224 and 229 to 230 and their
discussion of the concomitant matter of the need
for confidentiality is to be found, firstly, at
page 225 and, secondly, at 231.
I have already mentioned the bases upon which

immunity for Cabinet documents has been put, which

ill-formed and captious criticism basis. Whilst we I will call the frankness and candour basis and the
rely upon both those bases as further reasons why
the entries in the notebooks should not be
disclosed, the appellant puts the need to protect
and preserve the principle of collective
responsibility and the concomitant requirement of
confidentiality as the primary basis for immunity,
and I take a moment to remind the Court what was
said by Your Honour the Chief Justice in Sankey v
Whitlam, 142 CLR 1, in the passage that starts on
page 97 and runs over to page 98. Six lines from
the bottom of page 97, Your Honour said this:
Cabinet proceedings have always been regarded
as secret and confidential. Both the
Franks Committee in its report dated September

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1972 and the Committee of Privy Councillors on
Ministerial Memoirs (the Radcliffe Committee)
in its report dated January 1976 considered
that the efficiency of the Cabinet system
would be seriously impaired if secrecy and
confidentiality were not maintained.
Your Honour quoted from the Radcliffe Committee
report:
The constitutional doctrine which

attributes to each member of a Government his
share of collective responsibility for its actions and policies undertaken during the period of his membership is no more than an
expression of this association in which
individual attitudes and opinions are merged
in the general resolution of the whole body.
In our view such a system of working could not survive in practical terms unless the members were prepared to observe the confidentiality
of all that has gone on in the course of their
deliberations.

And Your Honour went on to quote from the next
paragraph of the report which referred to the
experience in other countries and I will just read
the last sentence, which was a quote from the
Franks Committee:
Governmental representatives in all four
countries took it for granted that a
Government cannot function completely in the
open, but must be able to preserve the
confidential nature of its internal processes,
especially at the highest levels of policy
making.

And Your Honour then said: This, to my mind, is the reason which
underlies the public interest against
production and disclosure of cabinet
proceedings and of other high level policy
deliberations. Accordingly, it is the element
which has to be weighed in the balance with
public interest in the administration of
justice in determining whether cabinet
proceedings and high level deliberations
should be disclosed.

Your Honour said that in the course of a case which
was concerned with high level communications
between government officials and ministers, with
the proceedings of the Loan Council and with the
proceedings of the Executive Council, although,
perhaps curiously, not with proceedings of Cabinet.

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It does not make any difference for present
purposes, but Your Honour's remarks, in our
submission, are equally applicable and indeed
directed towards Cabinet proceedings.
Now, I have indicated that we do rely upon the

need to encourage frankness and candour in
communications at the highest level of government.
Saying that, we are conscious of the fact that this
is a view which has fallen into some disfavour of
recent times, for example Lord Salmon in the case
of Reg v Lewes Justices, (1973) AC 388, which is
number 13 on our list of authorities, at 413
described this as "the old fallacy", and Lord Keith
of Kinkell in Burmah Oil v Bank of England, (1980)
AC 1090 page 1133, which is number 3 on the list of
authorities, described the proposition as
"grotesque" but, in this Court, in
Sankey v Whitlam, the proposition was certainly viewed with disfavour by His Honour
Mr Justice Stephen, his judgment at page 63 at the
top of the page in 142 CLR, His Honour said of this
basis:
Recent authorities have disposed of this
ground as a tenable basis for privilege.

That is three lines from the top of page 63. And
Your Honour the Chief Justice, at page 97, was

equally unpersuaded by the argument. In the middle
of the page Your Honour said:
I agree with his Lordship -

that was Lord Reid in Conway v Rimmer -

that the possibility that premature disclosure
will result in want of candour in cabinet
discussions or in advice given by public
servants is so slight that it may be ignored -

None the less, if the Court pleases, this ground
for supporting public interest immunity has,
perhaps, regained some favour more recently.
Lord Wilberforce, in Burmah Oil, (1980) AC, had
this to say at page 1112 between letters D and E:
Secondly the grounds on which public interest
immunity is claimed for this class of document
are, no doubt within limits, independent of
time. One such ground is the need for candour
in communication between those concerned with
policy making. It seems now rather
fashionable to decry this, but if as a ground
it may at one time have been exaggerated, it
has now, in my opinion, received an excessive

dose of cold water. I am certainly not

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prepared - against the view of the minister -
to discount the need, in the formation of such
very controversial policy as that with which
we are here involved, for frank and
uninhibited advice from the bank to the
government, from and between civil servants and between ministers. It does not require
much imagination to suppose that some of those
concerned took different views as to the right

policy and expressed them. The documents
indeed show that they did. To remove
protection from revelation in court in this
case at least could well deter frank and full
expression in similar cases in the future.
That passage was cited with approval by Lord Fraser
in Air Canada v Secretary of State for Trade, No 4

on the list of authorities, (1983) 2 AC 394. The
passage in His Lordship's speech approving what
Lord Wilberforce said is at page 433. Whilst there have been other opinions expressed on many
occasions on this topic, the last citation I wish
to give to the Court is that of Sir Harry Gibbs in

Sankey v Whitlam at page 40. Two lines from the
top of the page, His Honour said:
One reason that is traditionally given

for the protection of documents of this class
is that proper decisions can be made at high
levels of government only if there is complete
freedom and candour in stating facts,
tendering advice and exchanging views and
opinions, and the possibility that documents
might ultimately be published might affect the
frankness and candour of those preparing them.
Some judges now regard this reason as
unconvincing, but I do not think it altogether
unreal to suppose that in some matters at
least communications between Ministers and

servants of the Crown may be more frank and
candid if those concerned believe that they
are protected from disclosure. For instance,
not all Crown servants can be expected to be made of such stern stuff that they would not
be to some extent inhibited in furnishing a
report on the suitability of one of their
fellows for appointment to high office, if the
report was likely to be read by the officer
concerned.

His Honour then went on to refer to the reason
assigned by Lord Reid in Conway v Rimmer.

MASON CJ: But he did say that:

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this consideration does not justify the grant
of a complete immunity from disclosure of
documents to this kind.

MR GRAHAM:	Yes, he did, Your Honour, with respect. But what we are going to add is that documents of this
kind were documents such as submissions and minutes as distinct from documents which would reveal the innermost deliberations of the Cabinet itself where, we would submit, there is a very strong reason for encouraging frankness and candour
uninhibited by a risk of disclosure because one would expect, in our submission, that those
deliberations, at least, should be conducted
frankly and with complete candour and without a
fear of disclosure in the near or distant future.
BRENNAN J:	But must you or can you go so far as to say that

there is absolute immunity? Take, for example, the
case of a Cabinet minister being tried for treason,
could no treasonable utterance ever be proved?

MR GRAHAM:

We find this part of - the response to that

challenge to our submission difficult to meet. It
is hard to formulate an example that is realistic
but I can certainly take Your Honours as being
realistic in earlier times.
We would point out - and I will perhaps come

back to the question in a moment - that most of the
problems in this area of public interest immunity
have arisen in the context of police informers
where that type of exception has always been
conceded and we find difficulty in imagining a

case, but Your Honours' is one. It may be that one
has to engraft on the general principle some kind
of very special circumstances exception.

BRENNAN J: Or it may be simply that the factors that you

are relying on are factors of enormous weight.

MR GRAHAM:	Yes.
BRENNAN J:	So that it is only in the exceptional case that

the balancing exercise results in the production.

MR GRAHAM:	That is our second position, Your Honour. would not describe it as a "fall-back position"	I
either because it is basically an alternative

argument. It may be that one does have to attach a
proviso to the generality of the proposition to
cover such cases and one can do it in a number of
ways by attaching - - -

McHUGH J:

It is done in the case of legal professional privilege which is not balanced, but legal

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professional privilege does not prevail if it has
been procured for the purpose of - - -

MR GRAHAM:

- - - of a crime, yes.

McHUGH J: Criminal purpose.

MR GRAHAM:

Yes, and there is an exception conceded there.

So, it may come down to saying there is an
exception to the otherwise unqualified character of
the immunity or it may come down to a proposition
that the weight in the balancing exercise swings in
favour of this immunity in any case that is likely
to arise.

McHUGH J: And the informer principle itself is subject to

an exception if the evidence will assist the
defence.

MR GRAHAM:

Yes, yes, and that has always been conceded.

MASON CJ: Before you leave Sankey v Whitlarn, am I right in

thinking that three of the Justices in that case
rejected your submission in relation to want of
candour?

MR GRAHAM:

Yes, I think Your Honour is right because

Mr Justice Aickin agreed with Mr Justice Stephen.

MASON CJ:

Now, was that proposition part of the ratio of the case?

MR GRAHAM:

We would say not, Your Honour, because the case decided that the preferable basis was captious ill-

formed public opinion, but it would not necessarily

have resulted in a different outcome if the old

frankness and candour basis had been utilized.

that looking through the case one could not erect

that basis of captious and ill-formed public opinion

as being a fundamental step in the reasoning.

We would like to reflect on that answer, all
the same, because it is important, but as we recall
the case it is not part of the ratio but it would,
in our submission, none the less be open to this
Court to say that in a case concerning direct
reports of what is said in Cabinet by individual
ministers, questions of frankness and candour arise
in a different way from the way in which they would
arise when a submission is being prepared by a
senior public servant for the consideration of his
Minister, because frankness and candour may result
in people, as we say in paragraph 5 of our outline,
trimming their views to meet the pressures of
perceptions of the public of maintaining silence on
topics which are very sensitive and upon which they
would not wish to have a known and published view,

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and a desire to adhere to preannounced public
positions rather than to be influenced by the
course of the debate in Cabinet, lest it be known
that one had changed one's stand.
Those are considerations which are somewhat

different from the notion of frankness and candour
when it comes to a secretary writing a submission
for his Minister where they may have to speak very
frankly, but it would not involve the other factors
which we touch on in paragraph 5 of the outline. from one person to another, but the whole interplay
of a number of persons discussing a point, putting points of views, perhaps yielding to the points of view of others in the course of the deliberative
process.

TOOHEY J:

I am just having some trouble with the argument,

Mr Graham, because it seems to me to move between
the principle of absolute immunity and a principle
which falls short of absolute immunity but
recognizes the importance of Cabinet documents and
the reasons for that importance, and would place that very heavily in the scales in any balancing process. But at the moment are we concerned, in respect of your argument, only with a principle of
absolute immunity?

MR GRAHAM:

Your Honour, we put our submission in the

alternative. We say yes, there is not a principle
of absolute immunity. Perhaps the confusion arises
from the way in which we have expressed
paragraphs 1 and 2 of the outline, because in
speaking of an immunity which does not yield to a
competing aspect of the public interest, that can
be taken as an assertion of an absolute immunity,
or it can be taken as an assertion of a weight of
public interest which will not be outweighed.

TOOHEY J: But if there is such a principle, that is, a

principle of absolute immunity, presumably it can
only be supported by reference to existing
authority or by inviting this Court, either in the
absence of authority or by overruling earlier
authority, to declare that there is such a
principle.

MR GRAHAM:

We accept that, Your Honour.

TOOHEY J: Yes, but which are we being asked to do, or both?

MR GRAHAM:

So far as an argument supporting the existence

of an absolute immunity in this narrow case, we
would be asking the Court not so much to depart
from prior authority as to look at prior authority
in a state of affairs which has not previously

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arisen, and to see whether that authority is

applicable. I think much the same answer would be
given if we put the case on the basis of an
overwhelming weight of public interest where this
Court and other courts have not previously
suggested that there is a case to which an
overwhelming weight attaches. So that it may be
that we are doing no more than asking the Court to
modify or admit an exception to the statements of a
more general character that have been made about
Cabinet documents. It perhaps does not matter from

our point of view. We do not shrink from the
notion that we are asking the Court to depart from previous authority but, upon analysis, we say that the cases do not foreclose this argument to us
unless the Court departs from prior authority.

TOOHEY J: But the distinction, as you recognize, has

important practical implications. If the immunity
is absolute, subject to proof of the necessary
matters to give rise to the immunity, that is the
end of it.

MR GRAHAM:

Yes, that is right.

TOOHEY J:

If it is not, then we move into the area of threshold points, balancing exercises, and the

like.

MR GRAHAM:

I should make it abundantly clear that we put

our case both ways. The logical starting point is
absolute immunity, and the next step is to say,

"Well, if that is not right, then an overwhelming

weight which it is unlikely ever to be outweighed."

So we do put the case both ways. The result in the

present case, we would say, is the same, but if we
are wrong on the first ground, of course, then it
will be necessary for a court - and we think not

this Court - to undertake a balancing exercise to

see whether that overwhelming weight indeed should

yield.

TOOHEY J: And so far as absolute immunity is concerned,

Mr Graham, which decision of any court comes
closest to asserting a principle in unqualified
terms?

MR GRAHAM:

There are three authorities to which we refer in

paragraph 8, Your Honour, and I will take the Court
to those in just a moment.

TOOHEY J:

If you are going to take us to those, do not

worry for the moment.

MR GRAHAM:

There is really only one that goes the whole

distance, the decision in Whitlam v Australian
Consolidated Press. There are two points that I

NLC(2) 18 26/5/92
should make before going to the authorities. In
paragraph 6 of the outline we touch upon the
question of the alternative ground favouring public
interest immunity for this type of documents, and
simply put it that disclosure of the individual
views of ministers would, in our submission, have
the tendency to fan ill-formed and captious public
and political criticism and would render the
business of government more difficult. And that is
in line with what the majority thought in Sankey v
Whitlam as being the appropriate ground.
It might be said against us that if the topic

of the Cabinet discussions was no longer a matter of public concern, then the immunity should yield
and our answer to that submission would be that the
risk of injury to the efficient working of
government is not diminished simply because the
topic has become stale. The harm is the same, in
our submission, whether what is being discussed
today is disclosed tomorrow or a decade hence
because the vice lies in the prospect of disclosure
and not in its imminence.

DAWSON J: That must have limits, surely. I mean, if I am

going to dead and gone when they reveal it I am not
going to care very much.

MR GRAHAM:

The problem, Your Honour, would be this:

it is

not what Your Honour will think ages hence when
Your Honour is thinking about writing Your Honour's memoirs, it is what Your Honour would think when
Your Honour is sitting in Cabinet or in some other
inner conclave, the deliberations of which are
secret. Would Your Honour be influenced by the
fact that tomorrow somebody may have a press
,conference on or off the record and tell the press
and the public exactly what Your Honour and the
other members of the body thought.

DAWSON J: But it may not inhibit my candour if I thought it

was going to happen in 30 years time.

MR GRAHAM:	It probably would not, Your Honour, as a matter of practical reality but one must ask, "Well, is
there some magic cut-off date?", and there may be
that there are some matters which are of such a
sensitivity that they should not be disclosed even
30 years since.

McHUGH J: But since the Johnathan Cape decision in 1976,

every Cabinet minister must live with the notion
that his colleagues might disclose what took place
in Cabinet.

MR GRAHAM: Subject to this, Your Honour - and I will come

to that case in a moment - there exists the

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jurisdiction of the court to stop his colleagues
from doing just that in appropriate cases. So that
the prospect is a qualified prospect.

BRENNAN J:

Mr Graham, this argument has about it, in a

sense, a certain Diceyan ring. One looks at the
Executive Government, as it were, as being an
executive with the law-making functions in
Parliament, but if your argument is taken to its
extreme by saying there is an absolute privilege,
it means, of course, that the concentration of
political power in the executive falls to be
exercised in a democracy under an absolute cloak of
secrecy. Is that the way in which it is necessary
to go?

MR GRAHAM:

If I can answer Your Honour in a somewhat

roundabout fashion, the public forum for debate, of
course, is the Parliament where -

BRENNAN J: That is a proposition that one wonders about

these days.

MR GRAHAM:

But what is implicit in Your Honour's question

is that the Parliament is not the place where the
decisions are really taken.

BRENNAN J: That is right.

MR GRAHAM:

But what goes forward to the Parliament is the

decision of the Cabinet as something which
Parliament is asked to translate into legislative
form. The question one would then ask is: is
there any advantage to the public wheel in the
public knowing that that Cabinet decision was a
decision 10 to 9, or is it better in the public
interest for the belief to be that all members of
the government stand by it, whether they support it
or not?

One might also, Your Honour, cast one's mind

back to the history of bodies such as Cabinet and
their origins as inner secret conclaves. As one
goes from Norman times, one sees a sequence of
bodies which started life as secret bodies and
became more formalized and more public, and each
generated an inner conclave which deliberated in
secret. It seems to have been the pattern, and
that is the origin of the Cabinet as we know. It
was a secret body of ministers, unacknowledged to
exist up until the end of last century.
So what I am saying to Your Honour is that

the need for such a body seems to be brought about
almost as a reflex of the way in which government
business is translated at the high level.

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26/5/92

McHUGH J: Perhaps that is a reason for undermining the

rule, because it has its origins in a very
different form of government - oligarchy as opposed
to democracy, is it not?

MR GRAHAM:	But none the less, there is the passage which His Honour the Chief Justice cited from the
Radcliffe Committee in turn quoting the Franks
Committee, indicating that it is an essential
procedure of government that part of its work be
done in secret and that government's business could
not be done without a cloak of confidentiality and secrecy.
McHUGH J:	I do not think anyone would dispute that there

are some matters that have got to be kept secret,
but you are arguing for a blanket rule that
irrespective of contents, the class of Cabinet
documents are absolutely privileged.

MR GRAHAM: That is the high ground we take, Your Honour,

yes. Really we cannot put the matter further, apart from giving the Court such references as
there are. They are listed in paragraph 8 of the outline. I just wish to say a word about each of
them.

MASON CJ: Before you come to that, in your argument you are

claiming this immunity in respect of Cabinet
notebooks, but at times, in response to questions,
you seem to be suggesting that this absolute
immunity would attach to any document which records
the deliberation of Cabinet.

MR GRAHAM:

Your Honour, we must put it that way and,

indeed, we would also put it that if there was oral
evidence called as to what had transpired in

Cabinet, that the same proposition would apply. It
is not the fact that they are, as it were, the

official Cabinet notebooks that contain the record; it just happens to be those notebooks that are in question in this case, and the Crossman Diaries in
the Jonathan Cape case would be an example of the
kind that Your Honour perhaps had in mind.

MASON CJ: Yes, well it is, but you are going to come to

that, but it seems to me that the Crossman Diaries,
and the practice that they reveal, presents real
difficulties in terms of your success if you are,
as it were, spreading the absolute immunity to
cover documents, oral discussions that extend
beyond these official Cabinet notebooks.

MR GRAHAM:

Yes, I accept that Your Honour.

If I can spend

a few minutes on the cases that bear upon this
topic. Apart from a case in Canada of Carey v Reg,
to which we will come in a moment, there are the

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three listed: the first is The Queen v Turnbull
(1958) Tas SR 80, which is No 8 on the list of
authorities. It was a decision of a single judge
of the Supreme Court of Tasmania. What was sought
to be done in that case was to lead evidence from
the secretary of the Tasmanian Cabinet concerning
proceedings in Cabinet, including discussions in

Cabinet. Now, it is a case which was touched upon
by Your Honour the Chief Justice very briefly in
Sankey v Whitlam - Your Honour touched upon it at page 99 - and I will not read what Your Honour said
about it, but to paraphrase it by saying that Your
Honour considered it was a case decided when views
about public interest immunity relating to Cabinet
documents were different and the case is only
included because it is part of a small body of

authority. It really seems to have turned upon the
trial judge's view about the effect of the oath of
secrecy taken by members of Cabinet in their
capacity of executive councillors, and that does
not seem to be a ground which is relied upon by
either other authorities in this area or by text
writers or indeed anybody nowadays.
If I can then turn to the second of the cases

in the list, Attorney-General v Jonathan Cape
(1976) 1 QB 752, No 10 in the list of authorities,
and there are some short passages in the judgment
of the Lord Chief Justice to which we desire to

refer. I take it from what has been said already
that the members of the Court are familiar with the
factual background to this case, the proceedings
being to seek to restrain publication of extracts
from the diaries of the late Richard Crossman who
had been a member of the English Cabinet, recording
things that had been said in Cabinet whilst he had
·been a member of Cabinet. If I could ask the Court
first to go to page 764, between letters D and E,
His Lordship said this, perhaps starting at letter

D:

It has always been assumed by lawyers and, I suspect, by politicians, and the Civil
Service, that Cabinet proceedings and Cabinet
papers are secret, and cannot be publicly
disclosed until they have passed into history.
It is quite clear that no court will compel
the production of Cabinet papers in the course
of discovery in an action, and the
Attorney-General contends that not only will
the court refuse to compel the production of
such matters, but it will go further and
positively forbid the disclosure of such
papers and proceedings if publication will be
contrary to the public interest.

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26/5/92

The basis of this contention is the confidential character of these papers and
proceedings, derived from the convention of
joint Cabinet responsibility whereby any
policy decision reached by the Cabinet has to
be supported thereafter by all members of the
Cabinet whether they approve of it or not,
unless they feel compelled to resign. It is
contended that Cabinet decisions and papers
are confidential for a period to the extent at
least that they must not be referred to
outside the Cabinet in such a way as to
disclose the attitude of individual Ministers
in the argument which preceded the decision.
Thus, there may be no objection to a Minister
-disclosing (or leaking, as it was called) the
fact that a Cabinet meeting has taken place,
or, indeed, the decision taken, so long as the
individual views of Ministers are not
identified.
Then His Lordship went on to consider a number of
cases and matters which I will not take up the Court's time with. The next important passage
commences at page 770, just above letter F.
His Lordship said:
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.

I will omit the next paragraph and move on to the
top of page 771:
Applying those principles to the present

case, what do we find? In my judgment, the
Attorney-General has made out his claim that

the expression of individual opinions by
Cabinet Ministers in the course of Cabinet discussion are matters of confidence, the
publication of which can be restrained by the
court when this is clearly necessary in the
public interest.

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26/5/92

The maintenance of the doctrine of joint responsibility within the Cabinet is in the
public interest, and the application of that

disclosure of the views of individual doctrine might be prejudiced by premature
Ministers.
Then His Lordship said this:
There must, however, be a limit in time

after which the confidential character of the
information, and the duty of the court to
restrain publication will lapse.
Now, I can interrupt the reading now to say

this: that indeed may be conceded in relation to
submissions to Cabinet and to decisions of Cabinet,
but our submission is that the proposition that
His Lordship there asserts would not apply in the
case of a disclosure which indicates the opinions

of individual ministers. I have endeavoured to

develop that proposition earlier. He said:
Since the conclusion of the hearing in this
case I have had the opportunity to read the
whole of volume one of the Diaries, and my
considered view is that I cannot believe that
the publication at this interval of anything
in volume one would inhibit free discussion in
the Cabinet of today, even though the
individuals involved are the same, and the
national problems have a distressing

similarity with those of a decade ago. It is
unnecessary to elaborate the evils which might
flow if at the close of a Cabinet meeting a
Minister proceeded to give the press an
analysis of the voting, but we are dealing in
this case with a disclosure of information
nearly 10 years later.

It may, of course, be intensely difficult
in a particular case, to say at what point the
material loses its confidential character, on
the ground that publication will no longer
undermine the doctrine of joint Cabinet
responsibility. It is this difficulty which
prompts some to argue that Cabinet discussions should retain their confidential character for
a longer and arbitrary period such as
30 years, or even for all time, but this seems
to me to be excessively restrictive. The
court should intervene only in the clearest of
cases where the continuing confidentiality of
the material can be demonstrated. In less
clear cases - and this, in my view, is
certainly one - reliance must be placed on the

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good sense and good taste of the Minister or
ex-Minister concerned.
Without meaning any disrespect, it does seem to be
difficult for the Court to use as the touchstone of
whether a document should be disclosed or not -
the good sense and good taste of the Minister
or ex-Minister concerned.

Our proposition is that disclosure of the individual views of members of Cabinet now or in
the future will have the tendency to undermine the
doctrine of collective responsibility and inhibit
the frankness and candour of Cabinet discussion,
and the passage of long periods of time does not,
in our submission, detract from the force of that
submission.

MASON CJ:	Do we know what volume one contained?
MR GRAHAM:	I do not think the report tells one,

Your Honour. I will ask my learned junior to see
if the report discloses it.

MASON CJ:	I find it very hard to believe, having regard to the general character of the Crossman Diaries, that
any volume was a volume which did not disclose
freely the opinions of individual ministers ..

MR GRAHAM: Well, Your Honour, that is how we have

understood the case, that there were clear
disclosures of positions adopted by ministers and·
what they said, and His Honour seemed to think that
passage of time was the key to the matter and the
staleness perhaps of the issues that were being
discussed.

BRENNAN J: This is what gives it all an air of unreality,

Minister saying, "I propose to take the following is it not? I mean you have day by day a Cabinet
proposal to Cabinet." The day after the Cabinet
meeting, "X rolled in Cabinet." And here we have
the court solemnly intoning the notion that this is
all confidential, whilst in practice material is
not being treated that way at all. Now, is there a
question of leaving it to the good sense of Cabinet
ministers to decide how much of the
confidentiality, which the courts will protect,
they will yield?

MR GRAHAM:

Your Honour, I suppose that would be one

alternative approach that it would be up to Cabinet
to preserve its own secrets, and not to ask the
court to undertake any protective role at all.
That would be a significant departure from the
attitude the court has adopted in the past, and I

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do not think that any authority has ever suggested
that the blanket should be wholly lifted.
One is reminded, Your Honour, of something quoted in the judgment in the Crossman Diaries case
attributed, I think, to the Prime Minister, to the
effect that "nothing remains secret if I say it

does not have to". I have not quoted it exactly.
Now, if I can take the Court to the last of the cases that shed light on this problem, it is
Whitlam v Australian Consolidated Press,

73 FLR 414, No 9 on the list. We would readily
accept that it is this judgment of
Chief Justice Blackburn in this case which provides
the propositions for which we contend with their

clearest support. The case was concerned with an
application for further answers to interrogatories
which had been administered by the defendant to the
plaintiff, Mr Gough Whitlam, in the interlocutory

stages of a libel action. The interrogatories had
inquired after matters which had been discussed and
events which had occurred within the Cabinet.
His Honour refused to order that those
interrogatories be answered, and his reasons appear
in particular at page 421 to 422, and in a further

passage at pages 423 to 424. He says in the middle
of page 421:
I now have to apply the "balance" test -

and His Honour saw it as a balance test, and a
problem which arose at the balancing phase -
to each of these groups of interrogatories
separately, in order to rule on the opposing
submissions. In my opinion the overwhelming weight of public interest is, in both cases, in favour of ruling that the plaintiff should

which in my opinion leads to such a clear
not answer the interrogatories. The reason
conclusion is simply that the interrogatories
require a member of the Executive Council and
Cabinet to reveal what was said in meetings of
those bodies. There is no material

distinction between the two. Any such
revelation in respect of either body would
clearly be a breach of the principle of
collective Cabinet responsibility, or, more
precisely, a breach of one aspec~ of it.
With no pretensions to qualification as a

political theorist, I believe I can propound
that aspect of the principle in words which
are sufficient for the present purpose.
Cabinet is a group of persons who have in
common certain political aims. It has to make

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decisions which must command support in
Parliament and, it is hoped, will command

substantial support in the electorate. The
common political aims are necessarily broad;
in their particular applications they may be
the subject of disagreement among members of
Cabinet. Each member of Cabinet has a
personal responsibility to his conscience and
also a responsibility to the Government.
Discussion and persuasion may abolish the
disagreement, or they may merely reduce it, or
leave it unaltered.
I can, I think, omit the remainder of that passage
until one gets, over the page, to about point 4,
where His Honour said:
To all this, of course, must be added the

obvious and basic fact that it is part of the
machinery of the government of the country;
it is not the rules or customs of a private
society which concern us. Cabinet secrecy is
an essential part of the structure of
government which centuries of political

experience have created. To impair it without
a very strong reason would be vandalism, the
wanton rejection of the fruits of
civilisation.
I would, therefore, base the public

interest in upholding the Commonwealth's
contention in this case, very largely on the
maintenance of the secrecy of Cabinet
proceedings, and to a much less extent on the
sensitivity of the subject matter of those
proceedings.
Now, His Honour dealt with the matter further

on page 423, starting at about point 6, and going
over the page to about point 3. I shall not read

that further passage, but His Honour there seems to
be saying that there is an overwhelming weight of
public interest immunity favouring the
non-disclosure of communications in Cabinet and
documents which record those communications.
My learned junior suggests that, perhaps,

having regard to what was asked by Your Honour
Justice Dawson, that I should take the Court specifically to a short passage at the bottom of
page 423, starting at about point 8.
Chief Justice Blackburn said:
Whatever may be the proper test of what

is "of merely historical interest" for the
purpose of determining the availability of
Cabinet documents (which were inter alia in

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question in Sankey v Whitlam) what I am
concerned with is Cabinet discussions and the
votes of individual members. In my opinion
these cannot become of merely historical
interest so long, at least, as any member of
the Cabinet in which they took place is in
public life, that is, not retired. Whether he
is still in Government cannot be the test; a
rule which would result in the possibility of
an ex-Cabinet Minister, now in Opposition,
being attacked by his political opponents for
what he said in Cabinet would be destructive
of joint Cabinet responsibility.
So that might go some distance to provide an answer
to that question.

We also add in the outline a reference to the provisions of the Commonwealth Archives Act.

We do
not suggest that this is in any way decisive or,
indeed, binding but at least is an indication in an
Act of the Commonwealth Parliament that a special
status attaches to Cabinet notebooks. If I could just invite the Court's attention for a moment to
section 3 of the Archives Act 1983. There is a
definition in section 3(1) of the expression
"Cabinet notebook":
a notebook or other like record that contains
notes of discussions or deliberations taking
place in a meeting of the Cabinet or of a
committee of the Cabinet, being notes made in
the course of those discussions or
deliberations by, or under the authority of,
the Secretary of the Cabinet.

And then there is a definition further down the

same page of "Commonwealth record". "Commonwealth
record" is a key definition in this legislation
because it is the term which is used to describe

that to which access in the archives is available. "Commonwealth record" is defined to mean - two
subparagraphs:
but does not include a record that is a
Cabinet notebook -

and the overall effect of the provisions of the
Archives Act is that "Cabinet notebook" is never
disclosed and never becomes disclosable as part of
the Commonwealth Archives.
Now, Your Honours, that is what we desire to

say in relation to the first of our submissions.

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If I can turn then to the second. This is
concerned with what we call threshold requirements
for disclosure of documents entitled to public

interest immunity. The proposition that we advance
in paragraph 1 under this heading is this: where
documents have been shown to be entitled to public
interest immunity, the party applying for
disclosure is not entitled to seek to have the
court undertake the balancing exercise unless there
has been shown some concrete ground for believing
that the documents contain material substantially
useful to the applicant. It is insufficient, if no
more is shown, than that the documents satisfy the
criterion for discoverability laid down in what I
will describe as the Peruvian Guano case, rather
than attempt to pronounce the name of the

plaintiff. I will come to that case in a moment.
And the second point we make is that the entries in the Cabinet notebooks were held by the courts below
to be entitled to public interest immunity; they
had been discovered on the basis that they were
documents relating to any matter in question and
the appellant thereby conceded that they were
relevant in the Peruvian Guano sense.
May I just read the oft-cited passage in the

judgment of Lord Justice Brett, as he then was, in
the Peruvian Guano case, (1882) 11 QBD 55, case No
16. I need not trouble the Court with the facts of

the case. If I can pick up on page 62 of 11 QBD,
at about point 7, where Lord Justice Brett said:

We desire to make the rule -

that was the English rule of court concerning
discovery -
as large as we can with due regard to
propriety; and therefore I desire to give as
large an interpretation as I can to the words

of the rule, "a document relating to any

matter in question in the action." I think it
obvious from the use of these terms that the
documents to be produced are not confined to
those which would be evidence either to prove
or to disprove any matter in question in the
action; and the practice with regard to
insurance cases shows that the Court never
thought that the person making the affidavit
would satisfy the duty imposed upon him by
merely setting out such documents as would be
evidence to support or defeat any issue in the
cause.
The doctrine seems to me to go farther
than that and to go as far as the principle

which I am about to lay down. It seems to me

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26/5/92

that every document relates to the matters in
question in the action, which not only would
be evidence upon any issue, but also which, it
is reasonable to suppose, contains information
which may - not which must - either directly
or indirectly enable the party requiring the
affidavit either to advance his own case or to
damage the case of his adversary. I have put
in the words "either directly or indirectly,"
because, as it seems to me, a document can
properly be said to contain information which
may enable the party requiring the affidavit
either to advance his own case or to damage
the case of his adversary, if it is a document
which may fairly lead him to a train of
inquiry, which may have either of these two
consequences.
So it is a very broad statement, as one recalls it
very well, as to the test upon which a party,
preparing an affidavit of documents, is required to
respond to a notice of discovery. The relevant
Federal Court rule is not materially different.
May I add to the citation of Peruvian Guano

one other reference which we do because it is in a
judgment of a Justice of this Court, the case is
Mulley v Manifold, 103 CLR 341, No 17 in the list
of authorities, in the judgment of
Sir Douglas Menzies at page 345. It is a case
dealt with in original jurisdiction of this Court
and His Honour was dealing with an application for
further discovery. There is a sentence at page 345
which we would read simply to indicate that it
confirms what was said in Peruvian Guano, although
His Honour does not, in fact, refer to that case.
At about point 7 on page 345, ijis Honour said:
I now turn to the pleadings to determine what are the matters at issue between the
parties, because discovery is a procedure

directed towards obtaining a proper
examination and determination of these
issues - not towards assisting a party upon a
fishing expedition. Only a document which
relates in some way to a matter in issue is
discoverable, but it is sufficient if it
would, or would lead to a train of enquiry
which would, either advance a party's own case
or damage that of his adversary.

It is perhaps interesting that His Honour used the
word "would" rather than "may", unlike
Lord Justice Brett, but it is not a matter of
immediate concern in our submission. The point to
be emphasized is that it is a very broad concept of

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what is to be taken to be relevant and therefore
discoverable.
In our submission, where disclosure of

documents entitled to public interest immunity -
and this is paragraph 3 in our outline - where
disclosure of such documents is sought, a much more
stringent requirement than the mere discovery test

must be met by the applicant. We say that this
appears from some passages in the speeches in
Bunnah Oil, a citation already given, and Air
Canada and in the judgments of four members of this
Court in Alister v Reg, 154 CLR 404.

GAUDRON J: The difficulty with this proposition, though, is

that it depends really on the inventiveness of
counsel, does it not? I mean, it may all be
substantially useful as events turn out but, in the
meantime, it must be guessed, invented.

MR GRAHAM:

In most cases, Your Honour, it may not be so

much a matter - in some cases it may not be a
matter of guesswork, one may be able to ask the
court to draw inferences; in some cases it may be
guesswork. But the authorities seem to indicate
that when this collision of public interests occurs
mere guesswork will not suffice to get the - - -

GAUDRON J:

It does seem that there really are alternative

procedures and more sensible procedures, such as
allowing counsel to have a look at the documents
subject to conditions and then making submissions
thereafter. That is what, to a large extent, is
done in America, is it not?

MR GRAHAM:

Your Honour, I cannot answer the last question,

I do not know, but the problem is that. if one
allows counsel to see the documents, one is doing that which the Government says should not happen.

GAUDRON J: It is no different from the public servants who

have seen the documents, who wrote the documents.

MR GRAHAM:	But they are, with respect, within the confines of the party claiming the immunity, they are not
individuals.

GAUDRON J: Barristers are officers of the court who are

part of - the court itself is part of government in

any event. It is not party government but it is
part of government.

MR GRAHAM: But, with respect, Your Honour, those

individuals owe a duty to their clients which, ex
hypothesi - - -

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GAUDRON J: They also owe a duty to the court and it can be

segregated, can it not?

MR GRAHAM:

Your Honour, we would say - and we will be

saying later on - that it places counsel and the
legal advisers in a most invidious position but it
also involves - - -

GAUDRON J: That is why they get paid large fees in lots of

cases, I believe.

MR GRAHAM:

Sometimes, Your Honour, the placement of counsel

in an invidious position means that a judgment has
to be made between competing claims.

GAUDRON J:

I thought this was one reason why they could not

be sued.

MR GRAHAM: This, Your Honour, would be one of those

exercises taking place outside the Court which may
not attract that immunity.

GAUDRON J: Let me not detract you too much, but I thought

discovery and interrogatories - discovery at
least - was a court-controlled procedure and it
happens as part of the court processes.

MR GRAHAM:

Your Honour, I hesitate to answer the question

claim the immunity in the course of a procedure such as that envisaged in this case. But the
in absolute terms without looking again at
fundamental answer that we make to Your Honour's
proposition is that you are breaching the immunity
for the purpose of seeing whether it should be

'breached. We say that is a contradiction.

BRENNAN J: Are you claiming here an immunity from discovery

or an immunity from inspection?

MR GRAHAM: Inspection, Your Honour. These documents have

been discovered and inspection is resisted.

BRENNAN J:

But do you go to the extent of saying that the

principle which you embrace is one which entitles a
party to decline to discover as well as to decline
to give inspection?

MR GRAHAM:

No, Your Honour, I would have no basis for

putting that forward. The requirement is to
discover that which is within the full ambit of the
relevant discovery rule by listing in the affidavit
of discovery and then to make the claim, and then the court can adjudicate upon the matter once the
issue arises.

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26/5/92

If I could give the Court just a few
references to the cases referred to in the outline,
Burmah Oil, Air Canada and Alister. If I can go to
Burmah Oil first. There are two references we wish
to give the Court from that case. Firstly,
Lord Wilberforce, who was in fact dissenting in the
result, at the top of page 1117, said:
As to principle, I cannot think that it

is desirable that the courts should assume the
task of inspection except in rare instances
where a strong positive case is made out,
certainly not upon a bare unsupported
assertion by the party seeking production that
·something to help him may be found, or upon
some unsupported - viz, speculative - hunch of
its own.

Lord Edmund-Davies, at page 1129G, said:
But it has been suggested that the position is
otherwise where the "class" claim is not

challenged. I see no reason why this should
be so, once it is postulated that the withheld
"class" documents are "likely" to contain
material substantially useful to the party
seeking discovery. That qualification is
necessary, for what is no more than a "fishing
expedition" ought not to be advanced by the
judge's having a peep to see whether they
contain an attractive catch. But, provided
such reservation is rigidly adhered to, a
judicial-peep seems to be justifiable in both
cases and may, indeed, prove vital in each if
the judge is to be enabled to arrive at a just
conclusion in the matter of discovery.

GAUDRON J:

Mr Graham, that seems to me assertion, bare

assertion. Is there some reasoning to support it?

MR GRAHAM:

Your Honour, I think the answer to Your Honour's

question is probably this: that when one is
concerned with either the balancing exercise itself
or the question whether the court is to inspect,
one has to look to see what it is are the
attributes as known to the court of the documents
in question. If no more is known about them than
that they are relevant in the broad Peruvian Guano
sense, then that of itself is not thought to
provide sufficient weight either to warrant
disclosure or to warrant inspection by the court.

GAUDRON J: But why should not somebody have a peek to see?

MR GRAHAM:

Then, Your Honour, the - - -

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26/5/92

GAUDRON J: That is what seems to me to be the assertion.

It seems to be silly to say, "Well, we will do all
of this with our hands tied behind our backs and
our eyes closed".

MR GRAHAM:

Your Honour, then the question is whether the

court should inspect, and it may be that, although
this was something that has been resisted by our
client, the task is one that the court has to
undertake, alarming though its magnitude may seem
to be. But it is, in our submission, not right to
take the course that His Honour took, and I will
come back to the reasons for it later on. But I
think that my answer to Your Honours is as I have
given it, that mere Peruvian Guano relevance will
not be sufficient to swing the scales in favour of
an applicant for discovery who can do no more than
say, "Well, this might help me". The matter was referred to again in the
speeches in Air Canada, which is No 4 on our list

of authorities. I wish to take the Court to - - -

DAWSON J: Just stopping there, Mr Graham, he is not allowed

to say, "This might help me and, therefore" - - -

MR GRAHAM: That is insufficient, Your Honour.

DAWSON J:

..... inspection by someone.

MR GRAHAM: That is insufficient, in our submission, having

regard to the authorities.

DAWSON J:

But then inspection may reveal more but that he

is·precluded.

MR GRAHAM:

Your Honour, then a difficult question arises at

the point in the whole process of whether
inspection is required to resolve the difficulty or

carry out the balancing exercise without itself not, and the court may take the view that it cannot inspecting.

DAWSON J:

I thought you were saying you do not get to the

balancing exercise unless you can say more than
"This may help me".

MR GRAHAM: That is right, Your Honour, I think my answer to

Your Honour's question - - -

DAWSON J: You have got to say, "This will help me".

MR GRAHAM:

There must be a concrete ground for believing

that it will help him, yes. Your Honour, I
am - - -

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26/5/92

DAWSON J: But you do not know, and in many cases, I

suppose, until you have had a look, or someone has
had a look.

MR GRAHAM:

And then you have got to have taken the step of

saying that the applicant for discovery has crossed
the threshold when, on the criteria evolved by the

courts, it would seem that the applicant has not.

DAWSON J:

So that a document which may have been made

available for inspection, on the balancing process
conducted by the judge, may not in fact be made
available simply because of the party's ignorance?

MR GRAHAM: That seems to flow from the decisions,

Your Honour, that there must be more than
just - - -

DAWSON J: The process of discovery is meant to alleviate

that party's ignorance.

MR GRAHAM:

Your Honour, what we say is that in the light of

the decisions of the House of Lords and this Court, more than mere discovery-type relevance is required before one gets to the stage of considering whether
there should be a balancing exercise.
If I can take the Court to the passages where

that was said just in a moment, but it is p~rhaps
convenient, however, to look at what was said in
Air Canada. Firstly, at page 435, by Lord Fraser,
just below letter F, His Lordship said this:
The most that can usefully be said is that, in order to persuade the court even to inspect
documents for which public interest immunity
is claimed, the party seeking disclosure ought
at least to satisfy the court that the
documents are very likely to contain material
which would give substantial support to his

contention on an issue which arises in the
case, and that without them he might be
"deprived of the means of •.. proper
presentation" of his case.
Lord Wilberforce at page 439, echoing what had

been said in the Burmah Oil case, just between
letters E and F, said:
The degree of likelihood (of providing support for the plaintiff's case) may be variously

expressed: "likely" was the word used by
Lord Edmund-Davies in Burmah Oil: a
"reasonable probability" by Lord Keith of Kinkel. Both expressions must mean
something beyond speculation, some concrete
ground for belief which takes the case beyond

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26/5/92

a mere "fishing" expedition. One cannot
attain greater precision in stating what must

be a matter of estimation. I would accept
either formula.

DAWSON J: But discovery is a fishing expedition.

MR GRAHAM:

Fishing, Your Honour, but with the confines of a

net which may only catch documents of a class which
answer the Peruvian Guano test, but once the
documents have been caught by that net, the courts
have seemed to have clearly erected a more
stringent requirement when this type of competition
between public interests arises.

TOOHEY J: But I think "fishing" here is often used in a

slightly different sense, Mr Graham. It is used as
a means of controlling an action which really has

no foundation. In other words, the writ is issued
and a statement of claim is pleaded without
anything really to back it up, but if a defence is
filed, then on the face of it issues are

crystallized and questions of discovery can arise,
but it may be that until discovery has been given,
that the plaintiff has simply no foundation for the
cause of action at all. Then the answer to that

problem might lie in a different direction. I

mean, assuming that the action is bona fide and
discovery is given, then, as you accept by
definition, the party giving discovery acknowledges
these documents to be relevant. It is rather hard
to see how, without inspection, or without engaging
in the balancing process, it can be said that
inspection should be refused, merely on the ground
that it is a fishing expedition.

MR GRAHAM:

It may be. I think what is implicit in

Your Honour's question is that the term "a fishing
expedition" is being used in this context in a
somewhat different sense. It certainly cannot be
being used consistently in the sense that

Your Honour identified earlier.

DAWSON J: Well, it is fishing in the sense you do not know

what is in the document and you want to find out.

MR GRAHAM:

And you want to find out, and the court is

saying that, unless you have a concrete ground for,
as we would say, going beyond mere discoverability,
then you will not get the court to undertake the
balancing exercise or the inspection.

DAWSON J: You have got an affidavit there which says that

they are relevant.

MR GRAHAM:

You have, Your Honour, but as we have said - I

think I am repeating myself - only to that very

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26/5/92

extended sense of relevance laid down by
Lord Justice Brett.

DAWSON J: Well it is a catch 22 situation, is it not? You

cannot prove what you want to prove unless you see
them, but you cannot see them unless you can say
what you want to prove.

MR GRAHAM:

And yet Your Honour, in both Bu.rmah Oil and in

Air Canada, the documents had been discovered - - -

DAWSON J: Well that is what I - - -

MR GRAHAM:

They were discovery cases and the court said,

well, that is not enough. It is implicit in what
went thereafter that the court was not prepared to
accept, in our submission, that the fact of
discovery was enough to get the applicant for
discovery or inspection into the realm of the
balancing exercise. That is what has been said,
presumably in order to protect the public interest
to an extent perceived to be necessary.
If I can just give the Court the last

reference in Air Canada in Lord Scarrnan's speech at
page 445, just under letter C His Lordship said,
after referring to Bu.rmah Oil:
But, unless the court is satisfied on the
material presented to it that the documents
are likely to be necessary for fairly
disposing of the case, it will not inspect for
the simple reason that unless the likelihood
exists there is nothing to set against the
public interest in immunity from production.

Now, the speeches in those two cases have been referred to in this Court in Alister's case, (1960)
154 CLR 404. If I may take the Court to that case.

DAWSON J: Just before you turn to it, is this a convenient

time to ask this question, Mr Graham? I understand
your contention is that the documents, if they are
going to be looked at, should be given to the

judge. How does one solve the practical problem of
box fulls and room fulls of documents being dumped
on the bench for the judge to go through, without
any assistance whatsoever? You need not answer
that for the moment, but - - -

MR GRAHAM:

Your Honour, I suppose it is rather unfortunate

that that case is this case or something like it.
There will be boxes full of documents but what one
would anticipate, in fact, is if the judge wished
to inspect the pages containing a relevant note at
a Cabinet meeting would be copied and made
available to the judge, that he would not have 133

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Cabinet notebooks in his chambers or on the bench.
So that the logistics are not quite as alarming as
Your Honour's example would suggest.

DAWSON J: One can imagine cases in which they would be.

MR GRAHAM:

One is concerned, Your Honour, with the action

of a government and with Cabinet documents, more
particularly Cabinet notebooks, and one can imagine

a finite limit to the volume of the material. As
it was in Burma Oil, for example, it turned out
that only 10 documents, involving a matter of
enormous significance spreading over a period of
time ultimately had to be inspected.
My learned junior reminds me that in Alister's

case we do not know how many documents there were.
They may have been numerous, they may not, and, of
course, the task was undertaken in that case. The
facts will be familiar to the Court and if I can
take the Court to the judgment of
Chief Justice Gibbs, at page 412. At the top of page 412, His Honour referred to Sankey v Whitlam,
Burma Oil and Air Canada. His Honour, in the
middle of the page, then referred at greater length

to Sankey v Whitlam. If I can pick up at point 6:
The final step in this process - the balancing
exercise - can only be taken when it appears
that both aspects of the public interest do
require consideration - ie, when it appears,
on the one hand, that damage would be done to
the public interest by producing the documents
sought or documents of that class, and, on the
other hand, that there are or are likely to be
documents which contain material evidence.
The court can then consider the nature of the injury which the nation or the public service

would be likely to suffer, and the evidentiary value and importance of the documents in the
particular litigation. But the anterior
question arises - should the court look at the
documents to assist it in answering these
questions?

His Honour went on to deal with other matters and I
need not read further from that or the next page
but pick up on page 414, at about point 4, where
His Honour said this:
Both Burma Oil Co Ltd v Bank of England

and Air Canada v Secretary of State for Trade
support the view that where the Crown objects
to the production of a class of documents on
the ground of public interest immunity, the
judge should not look at the documents unless
he is persuaded that inspection would be

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likely to satisfy him that he ought to order
production; in the words of Lord Wilberforce
in Air Canada v Secretary of State for Trade,
he must "have some concrete ground for belief
which takes the case beyond a mere 'fishing'
expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should
appear likely to support the case of the party
seeking discovery, or whether it is enough
that they should appear likely to assist any
of the parties to the proceedings; the
majority favoured the former view.
His Honour then pointed out that:
In both cases the proceedings were civil and not criminal.

Then, just picking up at point 9:
Although a mere "fishing" expedition can never be allowed, it may be enough that it appears
to be "on the cards" that the documents will
materially assist the defence. If, for
example, it were known that an important
witness for the Crown had given a report on
the case to ASIO 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 justice has not been seen to be done.

Your Honour Mr Justice Dawson, in a joint judgment

with Sir Ronald Wilson, touched on the subject at
page 438 to 439.

DAWSON J: This was a criminal case in which there was not

an affidavit of documents.

MR GRAHAM: That is right, Your Honour, yes. But the point

that we will be making in a moment is that the
citations which the members of the Court relied
upon as authorities to support the test which four
members of the Court adopted were civil cases
arising in the discovery context.

BRENNAN J: There was reference made to them, but it does

not appear from what you have cited thus far that
there is an adoption of them for the purposes of
Alister's case.

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26/5/92

MR GRAHAM:

Your Honour, we would say that the reference in

Chief Justice Gibbs' judgment does involve an acceptance by His Honour of a requirement that the
applicant for disclosure must have some concrete
ground for belief - I am sorry, that the judge who
is asked to inspect or order disclosure must have
some concrete ground for belief which takes the
case beyond a mere fishing expedition.

TOOHEY J: What could you have more concrete than the other

party's assertion on affidavit that the documents
are relevant to the issues in the action, either by
advancing the case of the other party or by
diminishing the case of the party giving discovery?

MR GRAHAM:

Or, Your Honour, leading to a train of inquiry

which might produce such a result; the lower test
for discovery.

TOOHEY J:	I wonder, too, whether some of the early learning on this, Mr Graham, may not be affected by practice
in the sense that at one time it was commonplace
for discovery to be given at an early stage, given
on notice and perhaps before the issues had fully
crystallized, but there is a reluctance on the part
of courts these days to order discovery unless it is necessary for disposing of the issues in the
action, and by and large at least not until issues
have crystallized by particulars and other steps
that have been taken between the parties, so that
when discovery is given, it truly does reflect documents which are material to the issues in the
action.

I am not suggesting that anything significant
arises from that, but it does perhaps throw some light on the idea of what is meant by a "fishing
expedition".

MR GRAHAM: Yes. None the less, Your Honour, I think

perhaps I must answer Your Honour this way: the

rule is expressed in a particular way, the rule as
to what is the obligation of a party giving
discovery, and that obligation, in our submission,
is not going to be varied except by the pleadings
as they are formulated and perhaps amended and by
particulars as they are given. That will set the
parameters of the discovery task.

TOOHEY J: Except that a court might say it is premature to

order discovery, and that is one way of meeting the
case of a plaintiff who really is engaged in a
fishing expedition and who has just launched an
action in the hope that something might be dredged
up from the interlocutory processes.

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26/5/92

MR GRAHAM: There is perhaps a problem in that proposition,

with respect, Your Honour, given that under the
rules of court, in some States at least, discovery
can be obtained as a right in the sense that a
notice for discovery is just given after the
pleadings have been closed and the obligation
arises.

TOOHEY J: That is a diminishing situation, as I would

understand it.

MR GRAHAM:

The problem, Your Honour, is whether those sort

of changes in procedural rules and the procedures
adopted by the courts really impinge upon what, in
our submission, is a matter of substance, namely,
"What is it that an applicant for disclosure of
documents entitled to immunity must show?" If that
is a matter of substance, then it will be our
submission a little later on that rules of court
cannot alter it, and changes in practice and
procedure cannot alter it either.

TOOHEY J: Except to the extent they may throw light upon

whether the exercise is a fishing expedition or is
not given the stage that the action has reached and
the steps that have been taken on each side at the
point where inspection is sought.

MR GRAHAM: Certainly, but except this, Your Honour, also,

that inspection of documents which have been
discovered and have not been the subject of a claim
might also shed light upon what the matters in
issue were. Indeed, that is what happened in this
case, because the applicant was allowed by the
Commonwealth inspection on a confidential basis, as
the material indicates, of some Cabinet attendance
records and Cabinet minutes, and the claim for
immunity of those documents was not pressed. It

was that that precipitated the requirement for production of the notebooks recording what had happened at the meetings where those decisions

recorded in those minutes had been made. So that
sort of procedure, Your Honour, would assist an
applicant in demonstrating in appropriate cases
that it was not a fishing expedition.
I am reminded that one must always approach

this matter with an eye to what is in the statement
of claim, and what it is that the plaintiff has set
out to prove. The plaintiff has confined himself
by the statement of claim in a fashion which would
also inhibit a fishing expedition.

TOOHEY J: Well, that merely goes to determine relevance,

does it not?

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26/5/92

MR GRAHAM:

It certainly goes to determine relevance in one

sense, Your Honour.
Could I take the Court to the passage in the

joint judgment in Alister v Reg. Your Honours at
about point 4 on page 438 said:
But perhaps the critical consideration, the consideration which must go far to
determine whether the applicants have
succeeded in mounting a strong claim to
discovery of the information is what they
expect to gain from such discovery. It is
here that their case completely breaks down.
Even if it be assumed that ASIO is in
possession of reports from Seary, they have no
idea what they would contain. They may or may
not contain admissible evidence in support of their defence. The highest credible point to which they can pitch their case for discovery is that it might provide them with material
suggesting that Seary had given to ASIO an
account of the events of the night.of 15 June
which varied from that which he had given in
his examination in chief or that in some other
respect the material may have had a
significant bearing on his credit. As was
said by their counsel, Seary's credit was "a
burning issue" at the trial. So it may have
been. But there was a great deal of evidence
in the Crown case tending to confirm Seary's
evidence. That evidence would remain even if

his credit were completely demolished. In our
opinion, the applicants cannot show any basis
for a rational inference of any likelihood
that the documents which ASIO might produce
would go substantially to proof of their
innocence of the charges against them. This

much at least would, we think, be essential
before any balancing exercise against a danger
to the national security would become more
than a formality. In Burmah Oil
Lord Edmund-Davies postulated the test of the
likelihood that the class of documents
contained material substantially useful to the
party seeking discovery, regarding that
qualification as necessary in order that "what
is no more than a 'fishing expedition' ought
not to be advanced by the judge's having a
peep to see whether they contain an attractive
catch". His Lordship's observation was made
in the context of a consideration whether in
the case before them their Lordships should
inspect the disputed documents in order to
complete the balancing exercise.

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26/5/92

It was suggested in argument that if the court was in any doubt as to whether a
miscarriage of justice had occurred by reason
of the trial judge's refusal to compel an
answer to the subpoena then the court should itself inspect any documents that may exist. That may often seem an attractive proposition
in order not only that justice may be done,
but that it should also appear to be done, but
we do not think there is any warrant in the
present case for adopting that course. A bare
unsupported assertion that on inspection
something may be found that is helpful to the
defence is not enough. Mere speculation is

.not enough. In Air Canada, Lord Fraser of
Tullybelton, in a speech in which
Lord Edmund-Davies concurred, expressed the
opinion that a court "should inspect the
documents only where it has definite grounds
for expecting to find material of real
importance to the party seeking disclosure".
Lord Wilberforce accepted the tests of
"likelihood" and "reasonable probability"
enunciated in Burmah Oil as identifying some
concrete ground for belief which takes the
case beyond a mere fishing expedition. The
question arose in a civil case. The public
interest .immunity relied upon to resist
discovery was based on necessity for the
proper functioning of the public service. It
may be contended that in a serious criminal
case a court should apply a lower standard
where an accused person seeks the production
of documents for which .immunity is claimed, at
least in deciding whether to inspect the
documents for itself. However, we doubt
whether a satisfactory criterion can be found
which falls between the requirement that a
likelihood be shown and mere hopeful

anticipation. We do not think that fishing
expeditions ought to be encouraged.
We would say that Your Honour and
Mr Justice Wilson, speaking there generally and relying upon what was said in Burmah Oil and
Air Canada, was - - -

DAWSON J: But it was not a context where it was not known

whether there were any discoverable documents. It
is a very differemt case where you have got
discoverable documents.

MR GRAHAM: But, with respect, Your Honour - - -

DAWSON J: But it is true that you can make the observation

that the statements are more general than that.

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26/5/92

MR GRAHAM:

They are more general than that, with respect

Your Honour, and, indeed, the reliance on two cases which were discovery cases would have that
tendency.
Finally, Your Honour, there is a passage in

Your Honour Justice Brennan's judgment, at
pages 455 to 456. At the bottom of page 455,
Your Honour said this:
That circumstance shows the subpoena to

have been merely the hook cast in a fishing

expedition in the hope of catching something
worthwhile to the defence case. When the
defence undertakes a fishing expedition, should the court abstain from inspecting
documents in the possession of the Crown for
which public interest immunity has been

claimed" In Air Canada ..... a case in which an
objection to production was taken in proper
form, it was accepted that the court would
inspect documents with a view to ordering
their production if, to cite
Lord Wilberforce's criterion there were "some
concrete ground for belief which takes the
case beyond a mere 'fishing' expedition";
some concrete ground for believing that the
documents contained material substantially
useful to the party seeking discovery.

Your Honour then said:
Air Canada •••.. was concerned with discovery in
a civil action. This is a criminal case.

But none the less, Your Honour does appear to have
placed reliance upon the statements in Air Canada,
a civil case which was a discovery case, and we
would submit that each of those judgments does
indicate that a test, going beyond merely
discoverability in the Peruvian Guano's sense, is

applicable when the court is asked to either order
production or to inspect documents with a view to
performing the balancing exercise.

BRENNAN J:

But Alister can scarcely be a case in support of

your argument. There, though it was concededly a
fishing expedition, the court inspected the
documents, because it was a criminal case, of

course. I mean, in terms of the result of Alister
it does not support your argument,does it?

MR GRAHAM:

Your Honour, no, but if I can answer Your Honour

this way: the passages which I quoted from the
judgment of Justices Wilson and Dawson were, of

course, from a dissenting judgment. Your Honours, in the majority, appear to take the view that

NLC(2)

26/5/92

sufficient had been shown by what was advanced
before Mr Justice Lee and before this Court to
warrant inspection, particularly having regard to
the fact it was a criminal case.

BRENNAN J: If you look at the order that was made, it is to

call upon ASIO to file an affidavit to say even
whether they had got any documents.

MR GRAHAM: Whether they did not have any documents, because

it is at that point they - - -

BRENNAN J: It was a concededly fishing expedition.

MR GRAHAM:

Fishing, to the extent that it was not known

whether there were any fish in the pond, yes. But
none the less the court felt, in itself, able to
infer, and in the circumstances there may well have
been a report as I read the judgment, I may be
wrong about that.
But what we are saying, Your Honours, is that

there are indications in that case that suggest
that there is a more stringent threshold test to be
passed by an applicant than, simply, relevance for
the purposes of discovery. And we make these
points in paragraph 4 of our outline on this part

of the case. We just seek to emphasize that the
statements which we have just quoted, first, were
not expressed as being based upon the existence or
non-existence of a particular rule of court, or
upon the terms of a rule of court, there being no
rule of court applicable. Second, those statements
were not expressed as being applicable only in
criminal cases and, Your Honours cited civil cases
decided in England in support of the statements.
And, thirdly, the statements were not expressed as
being inapplicable in cases where the documents in
question had been discovered by the opposite party,
and Your Honours relied upon cases in England

concerning the process of discovery of documents.
Now, the Full Court of the Federal Court felt
able to distinguish Burmah Oil and Air Canada on
the grounds that the decisions in those two cases
turned, primarily, upon the terms of the English
Order 24 rule 13. Their Honours set that out at page 257 of the appeal book, and I will come back
to it a little later on, and they pointed out that
it differs from the comparable Federal Court rule,
Order 15 rule 15, and they set that out at page 240.
The process by which Their Honours

distinguished Burmah Oil and Air Canada is to be
found commencing at page 256 of the appeal book and

concluding at page 260. I do not propose, of

NLC!(2)

Ml\ GRAHAM,

OC!

28/5/92

course, to read all of that, but I do desire to refer to the first passage under the heading on
page 256, Threshold Criteria for the Balancing
Process. Their Honours said:
When a claim for public interest immunity

is raised, there may be a threshold question
to be resolved by the Court. That is whether
the documents in question are or may be of
sufficient importance to the case that the
Court should undertake the exercise, which may
involve their inspection, of balancing the
public interest in withholding production
against the public interest in the
administration of justice. The Commonwealth
submitted that before the "balancing process"
described in Sankey v Whitlam was undertaken
this Court had to be satisfied, as a matter of
likelihood rather than mere speculation, that
the materials in question would contain
evidence for tender at trial. The Council
denied there was any such requirement imposed

upon it. We agree there is no such
requirement in the terms contended for by the
Commonwealth.

Their Honours then went on on the ensuing pages to
review the two English cases, but they said in the
very last sentence on page 260:
But even on the more liberal approach adopted

by Lords Scarman and Templeman - who had dissented in Air Canada -
the language of RSC 9.24 r.13(1) was of
central importance.

The Court then went on over the page to consider
the decision of the New Zealand Court of Appeal in
the case of Fletcher Timber Limited v
Attorney-General, which is No 6 on our list of

authorities, (1984) 1 NZLR 290. I need not go to

that case in any detail. It was a case not
concerned with Cabinet documents - certainly not
with documents recording Cabinet deliberations -
but it was concerned with communications at a high
level of government between a minister and the
Director-General of Forestry.
The relevant rule of the court of New Zealand, which the Court of Appeal in that case placed much
reliance on, is set out on page 261.
Their Honours, in deciding the case of Fletcher
Timber, placed much reliance upon that rule and
traced its history as part of the English rules of
court and showed that in 1893 that rule had been

NLC(2)

26/5/92

modified so as to have added to it the additional
words which are now to be found in Order 24
rule 13, as I have said, which is set out at

page 257. No such modification had taken place in
New Zealand and Their Honours felt free to depart from what had been said in Burmah Oil and Air

Canada. Then Their Honours in the Full Federal
Court turned to authority in Canada and referred to the case of Carey v The Queen in Right of Ontario.
This is a case with which the Court may not be

familiar. I may just take a minute or two on it.
If I can begin by referring to the report of the
Court of Appeal of Ontario, No 34 on our list of
authorities which we have ensured has been
reproduced in full for the use of the Court,

43 OR (2d) 161. Does Your Honours have the Ontario
Reports version of that?

MASON CJ: Yes.

MR GRAHAM:

I know it is in the Dominion Law Reports as well

and I thought it might not have reached
Your Honours. In the headnote, on page 161, the
facts appear in conveniently short form:
The plaintiff, who was suing the Crown in

the right of Ontario and two statutory
corporations, sought production of various
documents in the possession of the Executive
and to this end subpoenaed the Secretary of
the Cabinet for Ontario. The plaintiff
alleged that certain agreements had been made
with officials of the government and the two
corporations which had been breached by the
defendants and that existence of such
agreements would be evidenced in the Cabinet

documents. An application was then brought to
quash the subpoena, and in support of the
application an affidavit was sworn by the

Secretary of the Cabinet acknowledging that he
had in his possession or under his control
documents which related to the matters in
dispute -

so that the existence of documents which related to
matters in dispute was indicated by the affidavit
seeking to have the subpoena quashed.
If I could take the Court to a short passage
in which the nature of the documents appears very

clearly. This is at pages 169 to 170. I will not

read the passage. It starts at Eon page 169 and

it goes on to about Bon the following page. It is
largely a quotation from the affidavit of the
Secretary to the Executive Council of Cabinet, describing what the notebooks were that were the

NLC(2)

26/5/92

subject of part of the claim for immunity. I think
it is sufficient to say that these notebooks seem
to bear a considerable degree of resemblance to the
notebooks with which this case is concerned, notes
prepared to record decisions reached, not being a
verbatim transcript but which included notes as to
what had occurred in discussion in Cabinet.
The Court of Appeal of Ontario favoured the

view that the Crown's claim to immunity should be
upheld and their reasons are very conveniently
summarized in a lengthy passage which commences at
page 195, and in that passage in a series of
numbered propositions Their Lordships set out their
view as to what the court's task was and what the
onus was which rested upon an applicant who sought
disclosure in such circumstances. It is
significant that - and in the interest of time I
will not read the whole passage - it is sufficient
to say that Their Lordships took the view that the
fact that the documents had been conceded to be
relevant in the affidavit of the Cabinet's
secretary, was not, of itself, sufficient to bring
about the result that the applicant should have the
documents produced for inspection by the court or
that the court was thereby able to embark upon the

balancing process without more. The court relied
upon the passages in Burmah Oil and Air Canada, to
which I have made reference.
The gravamen of what the court decided ends at

page 202 and I will just read about half the page

starting at page 201 at letter G. His Lordship
Mr Justice Thorson, speaking for a unanimous court
was here setting out to draw together the key
points of their conclusions and at letter G he
said:

When, with respect to any documents which are
in the possession of the Crown as a party
involved in any litigation and which are
admitted to be relevant to an issue in dispute
in the litigation, a prima facie case for a
departure from the norm of full disclosure of
those documents in the course of the
litigation is made, properly supported by a
claim for protection from their disclosure on
the ground of a specified public interest on
which the Crown relies in support of its
claim, the public interest in the
non-disclosure of the documents will be held
to prevail unless the party seeking their
production can persuade the court that:
(a) there are cogent and concrete grounds

to believe that the documents are likely to
provide evidence of the existence of facts or

NLC(2)

26/5/92

a state of affairs which, if the documents are
produced, will substantially assist the
position of the party seeking their
production;
(b) the issue to which the documents are

relevant is one of real substance in the
litigation, and is not merely one which is
raised by the party seeking production in
order to gain access to the documents but
without any other bona fide purpose, and
(c) without the production of the

documents, there is reason to believe that the
existence of the facts or state of affairs
sought to be established is unlikely to be
capable of being proved by other means. The decision of the Ontario Court of Appeal was
reversed by the Supreme Court of Canada and the
decision of the supreme court is No 7 in our list
of authorities, Carey v Reg, 35 DLR (4th) 161.
Again, if I may take a moment of time over this
case, as being a decision by the highest court in
another major common law jurisdiction.
The judgment of the court was given by

His Lordship Mr Justice La Forest. If I could just
take the Court, firstly, to page 175 of
35 DLR (4th), to see what it is that was put as the
issue in that case by the Crown. At about point 2,
His Lordship said:
So viewed, the question is not so much

whether the affidavit is insufficient as
whether the substance of the claim is one to
which the courts should give effect. Counsel
for the government put it that the issue

raised was a simple question of principle. In
short, may the documents be withheld from
production simply because they are Cabinet
documents as above-described, at least where
those documents are concerned with the
formulation of government policy by the
Cabinet? If one replies to this broad
question in the negative, it may be necessary
to ask whether the documents should be
withheld because of the particular policy to

which they refer. In that case it would be
the duty of whoever makes the affidavit to
give the court all the help he reasonably can.
But if the question is answered in the
affirmative, that would be an end to the
matter. I shall, therefore, attempt to reply
to the "single question of principle" counsel
for the government asked us to address.

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26/5/92

Then over on page 176, His Lordship indicated:
The principal argument for withholding the documents described in the affidavit is
that their disclosure would lead to a decrease
in completeness, in candour and in frankness
of such documents if it were known that they
could be produced in litigation and this in
turn would detrimentally affect government
policy and the public interest. The familiar
"candour argument" is combined with the need
of completeness and the fear that the freedom
of Cabinet members to discuss matters of
significant public concern and policy might be
diminished. This may simply mean that the
setting in which confidential statements are
made may make them different in kind from
others.
At all events, the government's counsel

in his factum put it on the following basis.

Now, we think that the factum is the outline of
argument, Your Honours, but we are not sure.
The principles of joint responsibility of the
members of Cabinet, and of Cabinet solidarity,
are basic to Canadian constitutional law and
must be maintained and preserved in the public
interest. These principles, he added, would
be prejudiced by disclosure of the documents
and information sought to be produced in these
proceedings. In Canada, the United Kingdom
and elsewhere in the Connnonwealth, he
maintained, Cabinet documents have
consistently been accorded a high degree of
protection against disclosure and courts will
order them inspected or produced only in the
most exceptional and unusual circumstances.

the candour argument but it is very easy to I am prepared to attach some weight to
exaggerate its importance •.... certainly the
notion has received heavy battering in the
courts.

Certainly Lord Keith's remark would bear that out.
He then in the next few pages undertook a

review of the authorities in the United States,
England, Australia and New Zealand.

MASON CJ: What are you seeking to get out of this judgment?

MR GRAHAM:

What we seek to do, Your Honour, is to indicate

that Your Honours should be not persuaded that the
court was correct in the view that they took or the

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26/5/92

approach which they adopted, because upon analysis
we say that it does not contain a full set of steps
of reasoning which would lead to the conclusion
that you should reject the Commonwealth's
submissions in this case relating to the threshold

test. When one goes through this case one finds,
in our submission, an absence of real analysis,
with great respect, of the question of what is the
test to be met by an applicant for disclosure, as
was considered by this Court in Alister, and we
seek to persuade Your Honours that this case should

not be followed in this Court in that respect. It
is undoubtedly a persuasive authority against the
Commonwealth's position in this case.

MASON CJ: Yes.

MR GRAHAM:	Starting at page 178 His Lordship discussed the decline of absolute protection and he - - -
MASON CJ:	Is it going to assist you to read passages regarding this case?
MR GRAHAM:	No, it is not, and I am happy not to,

Your Honour, if I can just abbreviate this as far
as possible, because again I am concerned about

time. We say that the real problem that arises in
this case of Carey v The Queen, and its
applicability here, can be discerned most ~learly
at page 191. If I may take the Court to that
passage. At point 3 in the judgment at 191, His
Lordship said:
It should also be underlined that it was

not solely for these reasons that the law
Lords refused to inspect the documents -

and that was a discussion on the threshold test to
be met of concrete grounds for believing that the

documents contained material of assistance - It should also be underlined that it was
not solely for these reasons that the law
Lords refused to inspect the documents, let
alone have them disclosed. They were all of
the view that any relevant information that
might be gleaned from them had already been
publicly revealed in the White Paper and the
Secretary's statement mentioned earlier.
Accordingly, their production was not, in the
words of o. 24, r. 13(1) "necessary either for disposing fairly of the cause or matter or for saving costs". Lord Scarman made it clear
that it was "for this reason, but for no
other" that he would hold that the trial judge
was wrong to decide to inspect the documents.

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26/5/92

What was involved in the Burmah Oil and
Air Canada cases, therefore, was the question
of how, in the particular circumstances of
those cases, the court should exercise its
discretion under an English Rule of Court in
the context of the general practice in English
courts, a rule the appellant maintains has no
equivalent in this country.

It is our submission that the principles that are
applicable in this area are not mere matters of
rules of procedure, but matters of substance. One
cannot, with respect, put to one side Burmah Oil
and Air Canada by saying that they turned upon
particular terms of an English rule of court. We would say, with great respect to Their Lordships, that they fell into error in so regarding Burmah
Oil and Air Canada.

TOOHEY J:

Mr Graham, it may be right to say that the

outcome of this sort of case does not depend
entirely upon the particular rule in force, but
there is another aspect which is perhaps what the
Full Court is suggesting in its judgment in the
present case when it refers to judicial case
management, as it does from time to time. If you
reach the stage that there is no absolute immunity
but you recognize the importance of Cabinet
documents, it may be that in the end these matters
simply have to be left to the trial judge. I do

not mean without guidance, but left on the basis
that some situations will call for greater
clarification in the affidavit of documents, which
might itself answer the question of the importance
~f the document to the outcome of the litigation.
Some cases might be met by the judge

inspecting at any rate a sample of some of the
documents. Others might be met by allowing
inspection in the way that has been allowed in the

present case. I just wonder whether it is possible
to do more than enunciate some sort of guidance in
that way.

MR GRAHAM:	Your Honour, there is a difficulty in the choice of the expression "judicial case management"
because it is a small step from there to say, "Well, these are just matters of procedure and not
matters of substance".
TOOHEY J:	I was at pains to suggest that that was not

involved in the suggestion I was putting to you.

MR GRAHAM:	What Your Honour says may well be right so long as it is steadily borne in mind that at some stage
prior to disclosure to the parties, in our
submission, the judge must undertake the balancing

NLC(2)

26/5/92

process and how he goes about it and when he goes
about it may vary considerably from case to case.

TOOHEY J: But as you, I think, acknowledged in answer to a

question I asked of you at the outset of the case,
the balancing process has not begun here.

MR GRAHAM:

And for reasons which - - -

TOOHEY J: But there is nothing to suggest that it will not

be undertaken.

MR GRAHAM:

Your Honour, that is right, but what we say has

happened is that something has been ordered to
happen which we say cannot be ordered to happen in
the way in which His Honour said it would happen,
namely that you have a partial disclosure in
advance of the balancing exercise. But, perhaps,
if I can come back to that in a brief submission
towards the end of our argument.

McHUGH J:

Mr Graham, you are contending that there must be

a concrete ground or some similar expression before
discovery can be ordered but what do you say of the
notion that the documents should be disclosed
unless they relate solely to the defendants' case?
Until 1970, in New South Wales, you were not
obliged to discover documents if they related
solely to your case.

MR GRAHAM:

There is a similar rule to the one in New South

Wales which abrogated that rule in the Federal

Court Rules. So that the ambit is as wide in the
Federal Court as it now is in New South Wales.

McHUGH J:

I can understand you not being required to disclose Cabinet documents if they relate solely to

your case, but if they do not relate solely to your
case but they advance the other party's case, or

perhaps damage your case, for example, why, as a

matter of principle, should they not be disclosed?

MR GRAHAM:

Your Honour, I hope it does not sound like a mere quibble, but it is -

McHUGH J: Sorry, I am not talking about - I mean produced

as opposed to disclosed.

MR GRAHAM:

Yes, I had taken Your Honour to mean that.

is not a mere quibble. If they are shown to be
capable of damaging the case or to have advanced
the applicant's case, that means that the balancing

process would be undertaken. Our position is that
if it is shown that no more is shown than that they
may lead to a train of inquiry which may produce
evidence which may advance the applicant's case,
then that is too remote to justify an applicant

NLC(2)

26/5/92

asking the Court to undertake the balancing
exercise. An inclusion in the affidavit of
documents does not tell you whether they are
directly in point, that they do damage, that they
may damage or that they may lead to a train of
inquiry; one does not know. That is the

difficulty. I only had a few more words to say in
relation to our second head of argument, if the
Court pleases. Would it be convenient if I
finished that in the next two or three minutes?

MASON CJ: Yes, Mr Graham, it would.

MR GRAHAM:

The point that we make in paragraph 8,

Your Honours, is in a sense a slightly separate

point. We say that the Full Court on page 269,
with respect, fell into further error. What they
said in the last sentence on that page was this:
the court does not need to advert to the
possibility of purely speculative inspection
or fishing expeditions for it is not in
dispute that the documents in question relate
to matter in issue between the parties, at
least to the extent that they may lead to a
train of inquiry which will -

I think should have read "may" -
either advance the applicant's case or damage
that of its adversary.

And then they say:
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.

And we would say, with respect to Their Honours,
that that is a non sequitur. The fact that the
documents may advance or may damage or may lead to
a train of inquiry does not, as a matter of logic,
demonstrate a likelihood or a finite non-trivial
probability that the documents will advance the
Council's case or damage that of the Commonwealth. So what we say in relation to this part of the
case is that the court below fell into error in
concluding in substance that the threshold test had
been met by the applicant simply by pointing to the
contents of the affidavit of discovery. Those are
our submissions on that part of the case.

MASON CJ:

Mr Graham, can I ask you how long the balance of

your argument will take?

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26/5/92

MR GRAHAM:

Your Honour, there is not very much further to

go. Your Honours will see from the outline that it
is fairly brief and there is very little we desire
to add to what appears in the outline.

MASON CJ:

We will adjourn now and resume at 2 o'clock.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

MASON CJ: Yes, Mr Graham?

MR GRAHAM:

If the Court pleases, if I may just deal with a

matter raised by Your Honour Justice McHugh this

morning. We are in the process of trying to
recover from our materials the ruling by
Mr Justice Hope in the ASIO Royal Commission where
this matter was dealt with, and my recollection is
that there was argument about the matter, and - - -

MCHUGH J: That there?

MR GRAHAM:

- - - that there was argument.

McHUGH J: Yes, there was - - -

MR GRAHAM:

I think Your Honour would have been in a

position to recall is better than me. But I have
certainly read the transcript and will provide it
to the Court unless we are directed otherwise, but
that will have to be after the hearing is
concluded, and we will do that, and provide it to
our learned friends as well. If I dare say so
perhaps that might produce some written submission

permit that to happen contrary to normal procedure. about it, if the Court would be good enough to I am sorry that I cannot produce the document this
afternoon.
If I can turn then to the third of our topics

under-the heading "Relevance of Rules of Court".
The proposition which we advance is this: the
application and operation of the principles
concerning public interest immunity should not vary
from one forum in Australia to another, depending
upon variations in the terminology of the
procedural rules governing discovery which apply in
a particular forum. Our contention is that there
is a general body of principles to be observed by
courts in Australia concerning public interest

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26/5/92

immunity, and those principles are not dependent
upon nice distinctions between the rules of one

court or another. The principles, in our
submission, recognize the immunities of the Crown
as a matter of substance.
Now, that proposition gains strong support

from the decision of the Court of Appeal in

Re Grosvenor Hotel, London, (1965) Ch 1210. The
issue in that case arose in very routine
circumstances of the renewal of a Crown lease, and
I need not trouble the Court with the details.
In the judgment of the Master of the Rolls,

Lord Denning, at page 1242, there appears the terms
of a new rule of court which came into force on
1 Janu·ary 1964. His Lordship sets out the text at
letter G:
That rule says that the court "shall not order
the inspection or production of a document if
a statement is duly made on behalf of the
Crown that the production of the document to
the court, or, as the case may be, for
inspection, would be injurious to the public
interest."

His Lordship and Lord Justice Salmon were both of
the view that that rule was ultra vires the rules
committee, and the third member of the Court of
Appeal, Lord Justice Harman, said that it had to be
read down, otherwise it would be ultra vires.
Lord Denning said on page 1243, between letters C and D:
The law as to Crown privilege is not mere
procedure or practice. It may perhaps be said
to be a rule of evidence, but I would rank it
higher. It is a principle of our
constitutional law which is to be observed in
the administration of justice, not only when a

witness is called to give oral evidence, but
also when a party is called upon to give
discovery.

At page 1249, there is a sentence in the judgment
of Lord Justice Harman, just after letter F.
His Lordship says:
Now in my judgment this question of Crown
privilege is more than a mere question of
practice and is a matter of substantive law
with which the rule-making body is not
empowered to interfere.

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26/5/92

Finally, at page 1262, in the judgment of
Lord Justice Salmon, just under letter C,
His Lordship said:
I agree with my Lords that the power of the
executive to intervene in litigation for the
purpose of vetoing the production of documents
and the power of the courts in the last resort
to override this veto are matters of
substantive law and not mere practice and
procedure. It follows, therefore, that RSC,
Ord 24, r 15, if and in so far as it purports
to alter the law, is ultra vires.

BRENNAN J: In this action, what is the provision which

exposes the Crown to liability to discovery?

MR GRAHAM:	It would be the combined effect of section 64 of the Judiciary Act and the provisions of Order 15
rule 2 of the Federal Court rules applicable to a
remitted action.
BRENNAN J:	Does any question of ultra vires then arise?
MR GRAHAM:	It does not, Your Honour, because the terms of the Federal Court Rules are not like the rule
considered in re Grosvenor Hotel, and indeed there
is an express provision in the Federal Court Rules,
Order 15 rule 17, which provides that the discovery
rules are not to be taken as overriding any rule of
law concerning the non-disclosure of documents. If
I can just read the text of Order 15 rule 17:

This Order does not affect any rule of law which authorizes or requires the withholding of any document on the ground that its
disclosure would be injurious to the public
interest.
For the sake of completeness, Your Honour, the rule

that was held ultra vires in re Grosvenor Hotel was repealed in England and replaced by Order 24
rule 15 in its present term, which I think we have
handed to the Court but I will read:
The foregoing provisions of this Order shall
be without prejudice to any rule of law which authorizes or requires the withholding of any document on the ground that the disclosure of
it would be injurious to the public interest.

So that there is no collusion in either the English
rules as they now stand or in the Federal Court
rules.

MR GRAHAM:

I will have handed to Your Honours, without

interrupting the argument, a copy of the terms of

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the English Rules of Court which are mentioned in
our list of authorities. Perhaps it is also worth
mentioning that the two leading cases in this
country, Sankey and Alister, neither of them were cases arising under rules of court and that bears out our contention that the matter we are debating
in this case is not a matter of mere procedure, but a matter of substance. As we say in point 2 of the
outline, the relevant immunity in this case is a
matter of substance, not just a concession allowed
or recognized by·the court as an implicit
qualification to the procedural rules concerning
discovery and we give references there to the

Federal Court and English Rules. We also say that
the immunity is not to be regarded as something
which is a creature of the court's discretion and
which yields to the court's discretion.
Now, there is one further point that we make

on this topic and that is that the Full Federal
Court, in departing from Alister and not following
Burmah Oil and Air Canada, was strongly influenced
by the terms of the Federal Court Rule and
differences in terminology between that rule and

the English Rules of Court. We would simply
observe that both the English Rule and the Federal
Court Rule talk in terms of inspection or
production being ordered when it is necessary, and
we would submit that there is no relevant
distinction for the purposes of this case between
the wording of the two rules. That is what we wish
to say on the third of our topics.
If I can move then to the portion of the

outline which is headed "The Appeal to the Full
Court" was not an appeal against the exercise of a
judicial discretion. Here we simply say that the
ultimate position of the Full Court in deciding
upon its appellate role in this case, seems to have
been that it was hearing and deciding an appeal
from an order involving the exercise of the broad

judicial discretion. That appears in the appeal

book pages 274 to 275. We say that:
A decision on the question whether an applicant for an order for production of documents which are entitled to public
interest immunity has made out a case for
production, so as to require the Court to
engage in the balancing exercise, clearly does
not involve any exercise of -

judicial -
discretion.

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26/5/92

It is simply a finding whether on the facts a
criterion or threshold test has been satisfied.
And we also say that when the court carries out the balancing exercise it undertakes a process of
judgment in which it evaluates the weight to be
attributed to a number of competing factors and we
submit it is not exercising a discretion in the

usual sense of the word. It has been said in
numerous cases, and I will not take up the Court's
time with the references, that where the court
orders production of documents entitled to public
interest immunity, the court will take steps to
ensure that the Crown is able to appeal against
that order, and in making those statements it has
never been suggested in any case that we have found
that the Crown's right of appeal is to be regarded
as an appeal simply by way of a review of a

judicial discretion. The sense to be found in the
judgments is that it is an appeal in the fullest
sense of the word.
I am sorry, there is an error in what I gave

to Your Honours in the outline of argument. In
paragraph D.1, the references should be not to
pages 274 to 275 but 273 to 274.
The last matter with which we desire to deal

points made in the outline, if I may just summarize
is the order made by His Honour the primary judge
for disclosure of documents to the Northern Land
what His Honour said. At page 171,
Mr Justice Jenkinson reached a conclusion that the
probability was strong that entries in the Cabinet
notebooks would afford information in relation to
one aspect of the proceedings by means of which the
case of the Northern Land Council may be advanced
,or that of the appellant may be damaged.
Our contention in front of the Full Court was

that that conclusion was not supported. His Honour

then, having found that there were, in this case,
competing aspects of the public interest, stated
that the balance was clearly in favour of granting
inspection to the legal representatives of the

Northern Land Council. He said that at pages 171
to 172.
Although His Honour spoke in terms of the

balance being in favour of granting inspections for
the legal representatives, we would not understand

His Honour to have engaged in the balancing
process, in the understood sense of that phrase, at
that point. What he did was to order a limited
form of inspection and he explained his reasons for
adopting that course by saying that he considered
that the entries will afford information to those

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inspecting them by virtue of what they do not
contain, as well as by virtue of what they do and
he indicated that neither the contents of the court
file nor the evidence before him equipped him to
weigh the value of the entries to the Northern Land
Council.
We would say that the first of those reasons does not seem to be a matter of some speculation,
given the incomplete and somewhat idiosyncratic
nature of the record contained in the Cabinet
notebooks as described in the affidavit material.
The second reason does seem to contradict what
His Honour had said earlier as to his view that the
notebooks would contain material that was of
assistance.
So, going to paragraph 1 of the outline,

Mr Justice Jenkinson, with the approval of the Full
Court, decided to postpone his decision upon the
question whether the public interest immunity
attaching to the documents was outweighed by the
competing aspect of the public interest - that is
to say, the administration of justice - and upon
the question whether disclosure should be ordered
generally until the documents had been disclosed to
the Northern Land Council's legal advisers and
inspected by them.
We say the adoption of this device involves a

serious error. The question for the court was
whether the immunity of the Crown attaching to the

documents should be breached. The effect of the
order for limited inspection was to breach the
immunity and we say it is not possible to justify a
decision to breach the immunity in order that one
can decide whether that immunity should be
breached. The task of the Court is to decide the
claim for public interest immunity and it does so,
in our submission, on the basis of the evidence
before it. And we say that that task cannot be

performed in the manner contemplated by His Honour.

McHUGH J: But His Honour is making use of the legal

representatives of the park, not as legal
representatives so much as officers of the court to
assist him, just in the same way he might ask his
associate to go through the document.

MR GRAHAM:

Your Honour, what His Honour seemed to be

contemplating is that following inspection, counsel
would be much better equipped to argue a case for

disclosure and for the performance of the balancing

process.

So that it was not merely, as it were, a

type of delegation to them of a task, but it was to

equip them to present a case, which is somewhat a

different thing from the judge looking, or indeed

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the associate, sorting them out so the judge could
look.

McHUGH J:

It is still anterior to the determination of the question as to whether disclosure should be

ordered, is it not?

MR GRAHAM:

Yes, Your Honour, but we say it really is to put the cart before the horse.

You cannot do it that

way, however attractive as a practical solution it

might seem superficially.

TOOHEY J: If the judge inspects the documents for himself

or herself and deals with the question of immunity,
not on the basis of the class of documents, but on
the basis of the documents seriatim, I suppose, how
does the judge express the result in a way that
allows an unhappy party to appeal, but at the same
time does not cause the very damage which is sought
to be avoided?

MR GRAHAM:

Your Honour, I do not believe that I can answer

that question other than by referring to the forms
of words adopted in the final part of the report in
Burmah Oil and in the final part of the judgments
in Alister.

TOOHEY J: Yes, but it is a bit easier if you are at the end

of the judicial line. There is no appeal from that
decision, and so the result can be stated in an

encapsulated form. But if you are somewhere down
the line that solution may not be so readily
available.

MR GRAHAM:

The somewhat perturbing answer that I believe I

must then give is that if there is an appeal here
judges of the Appeal Court would have to do it
themselves because they would not be able to
undertake - assuming that the argument reached that
point, that an Appeal Court considered, "Yes, the

judge was right in inspecting", and that the
decision could only be made upon an inspection,
then the Appeal Court judges would have to inspect.
That seems to be unavoidable.
There is a sentence in the final part of the

judgment in Alister which, in our submission,
supports our contention that what His Honour
contemplates should happen in this case is not an
appropriate course. If I may just read the
sentence to the Court and then put the submission.
At page 469, in the joint judgment of
Sir Harry Gibbs, Sir Ronald Wilson, Your Honour
Justice Brennan and Your Honour Justice Dawson, the
following appeared, 469 at point 5, Your Honours
said:

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Prior to today's sittings the court had
carefully examined the material furnished by

ASIO in response to the court's direction. We
have formed the clear view that none of the
documents is relevant to the issues at the
trial or could have been used for the purpose
of cross-examining the Crown witnesses. When
we say that, we do not discount the
significance of the argument that the parties
may be more able than the members of the court
to discern the possible relevance of material
in a trial of this kind, but we remain
satisfied that the material would not assist
the appellants.

Now, it is implicit in our submission in that, that
the court took the view that the task was for the
court itself to inspect, unassisted by the
submissions of counsel who had themselves seen the
documents prior to putting argument to the court.
There is a passage in a judgment which appears in
Part B of our list of authorities, Jackson v Wells,
5 FCR 296 by His Honour Justice Wilcox, at
page 307, where he was concerned in a public
interest immunity case to inspect the documents,
but he accepted, at page 307, that it was going to
be a task which he had to undertake alone, and that
is apparent in the passage at the bottom of
page 307, that it was a task which he would have to undertake unaided by counsel. And it has been said
that procedures whereby counsel, but not their
clients, are permitted access to documents on terms
which may mean that they will not be able to
disclose those contents to their clients, is a
dangerous practice and puts counsel in an invidious
position. And for those descriptions we refer to
judgments in another case in Part B of our list of
authorities, News Corporation Limited
v National Companies and Securities Commission,

5 FCR 89. Mr Justice Fox at page 9, who described
it as a dangerous practice, and Mr Justice Woodward

at page 103 who described it as putting counsel in
an invidious position.
If I can just put that together in the context of this case. If counsel, upon inspection,
considered that an entry in a Cabinet notebook was
useful and applied for disclosure of it in a
general basis, that the judge upon inspection
disagreed, the client would remain in ignorance of
the contents of the entry and perhaps feel
dissatisfied, but further, counsel would then have
to conduct the case keeping secret the disclosed
entry and endeavouring to keep it out of his mind,
and that is perhaps the sort of invidious position
to which Mr Justice Woodward was referring.

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McHUGH J:

The real problem is, having undergone the

experience, is that you just do not always
recollect where you got that piece of information

from in a very large case.

MR GRAHAM:

Yes, and a very long case.

We would accept

that, Your Honour.
I am reminded that Justice Jenkinson in the present case, in talking about the topic of
disclosure to counsel, referred to another case,
which is also in part B of the list, of Kenthal
Australia Pty Limited v Minister for Industry,
Technology and Commerce, (1987) 14 FCR 901, and he
did this at page 173, but that was a case of
information which was commercially confidential, to
use an abbreviated phrase, and not information

involving public interest immunity. I simply add
that for completeness.
If the Court pleases, that completes our

submissions, but there is one matter which we must
deal with and that is to indicate to the Court the
orders which we would seek if this appeal is
successful. If I could invite the Court's
attention to minute 3 and minute 4 - minute 4 being
a distinct alternative to minute 3 - the order
contemplated by minute 3 would, as we see the
matter at the moment, only be appropriate if our
first submission was successful. If our other
submissions or any of them were successful, then it
is our submission that the matter would have to be
remitted to the Full Federal Court to deal with our
submission concerning meeting the threshold test,
our submissions concerning the relevance of the
rules of court and our submissions concerning the
non-discretionary nature of the order under appeal.
In granting special leave this Court indicated -
and we obviously accept this - that this Court
would not be seeking to undertake any such
evaluative process as would be involved in dealing

with those arguments in detail, and the only
available course appears to be a remitter to the
Full Federal Court. If the Court pleases, those are our submissions.

MASON CJ:

Yes, thank you Mr Graham.

Mr Solicitor for

New South Wales.

MR MASON:

We hand up an outline of our submissions.

MASON CJ: Thank you. Yes.

MR MASON:

Your Honours, it will be apparent from

paragraph 1 of our outline that we accept that
Cabinet documents, including the sort in question here, are not per se immune but we would

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nevertheless submit that they are clearly within a
class that, as it were, starts very far ahead in
the balancing process, with the onus being upon the
person who would seek production of them.
We would submit and would agree with the

submission of my learned friend that it does not
turn upon questions of the means whereby the
documents are sought, be it subpoena or discovery
or the particular rules of court. One is dealing
with an interest which applies to real evidence, to
oral evidence and to documentary evidence and which
the court, in our submission, has a duty to uphold. the realm of procedure or discretion.
In paragraph 2, we advance the submission that

the balancing exercise which is attracted by
documents which by their nature attract public
interest immunity - the court is not required, nor
should the court go straight into the balancing
exercise unless it is satisfied that the documents
or the evidence in question is likely to have
forensic use; and by forensic use we mean likely
to support the case of the parties seeking

discovery. I do not intend, in putting it that
way, to revive the pre-1970 rules that Your Honour
Justice McHugh spoke about but we do submit that
the broader category of documents that are
discoverable only because of the Peruvian Guano
principle, namely documents that may lead to a
train of inquiry, do not satisfy in themselves the
threshold test that we are proposing.

McHUGH J:

Mr Solicitor, paragraph 1 of your submissions

seems to assume that there is a presumptive rule
that public interest immunity will prevail unless
the public interest in the administration of
justice overcomes it.

MR MASON: With respect, the Cabinet discussion documents.

McHUGH J: In relation to Cabinet discussion documents?
MR MASON:	Yes.

McHUGH J: Well then, it is rather incongruous, is it not,

to talk about a balancing exercise in that context?
The question is not whether you balance it but
whether you overcome it?

MR MASON: True, but, as it were, one is dealing with a

class of documents that, by their nature, weigh the
scale down, and we say heavily, and one puts
against that the public interest in access to those
particular documents in that particular forensic
context. But, certainly, the ultimate question is

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whether the immunity is overcome by the litigation
need of the party seeking production. But there
still is a balance albeit of imponderables.

McHUGH J: Unless you knew what the contents of the class of

documents were, how could you ever get into a
situation where you were able to say that it may
weigh it down?

MR MASON: In some cases you might. With an informer

category of documents you would know the class
attracted the immunity very strongly and unless it
was within that exceptional case where the liberty
of the subject depended upon them, the court would
say, "Well, acknowledging the interest of the
litigant in getting access to relevant material,
the scales are weighed down against access." In other categories of case, the court will only be able to resolve the matter in favour of production
by looking at the documents.
So, we would submit - and this is where we

address in paragraph 2 - that the English cases
have got off on a wrong tangent in erecting hard
and fast rules about when the judge would inspect
the document. Inspection is not an essential
prerequisite to production. It is a means whereby
the court exercises its power and duty to determine
the claim for public interest immunity.
The strength of the criticism in the New

Zealand and Canadian cases to which the Court has
been referred of the English position is that how
can the Court ever properly weigh the balance if it
does not know anything about the documents? And,
we, with respect, accept that and seek, in effect,
to blend the two positions in paragraph 2 to say
that the Court has a discretion whether to call for

the documents, if that will assist. If in doubt,
the Court should exercise that discretion in favour

of looking before handing over but ultimately,
whether or not the court looks is not the critical
factor, it is whether or not the court produces the
documents or orders production of the documents
that is critical.
If, in the balancing process, the court is

required to have regard to the usefulness of the
particular documents, well then, it is appropriate,
where the court needs to, to look at those
documents.

TOOHEY J:

Or it may be that the party giving discovery

should, in the affidavit of documents, perhaps,
state with some specificity the contents of
particular documents without necessarily disclosing
their contents verbatim in such a way as to enable

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the court to make that decision without necessarily
going to the documents themselves.

MR MASON:

Yes.

If in the present case what the respondent

is fishing for is some statement by a particular

minister, we will meet them and do this. The rules
of discovery would allow for the party seeking
production to say, "That is the particular category
of document which I am seeking to have discovered",
and there could be an order for discovery limited
to that category. But what Your Honour says, with
respect, is certainly open, although where the
Crown is itself a party to the litigation, one
assumes that it will tend to err in favour of
generality rather than specificity, although the
court -

TOOHEY J: Well, it might pay the price, of course, if it

does that by leaving the court no alternative but
to inspect the documents for itself.

MR MASON:

Yes, or to say, "Well, I require further help in

the form of a more detailed affidavit of discovery
or description on affidavit of the content, or
identification of a couple of samples so that the
issue can be tested with reference to a couple of
sample documents."
We would submit that because the balancing exercise involves difficult imponderables and would
have to be applied to every conceivable document,
the court should not move into that until it is
past the threshold of deciding that the documents
have any real forensic use.

BRENNAN J:

What does that mean?

MR MASON: Well, we adopt particularly the speech of

Lord Wilberforce, but they are the passages in Air

Canada. But we are seeking, in effect, to
distinguish two situations: the case where the

document - or question, it may be - but the
document itself relates to a matter in issue, and
the case where the document would lead just to a
train of inquiry such that one would have to
discover it. But it would (a) never be admissible;
and (b) it would probably never see the light of
day again.
In the present case, the trial judge committed, in our submission, the logical fallacy
of saying that because they are discoverable, one
can infer that they are of use in the narrower

sense. There may be cases where that inference
can be drawn because of the description of the
documents and the issues that have arisen, but to
draw them necessarily from the mere fact of

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discovery is to overlook the breadth of the
discovery rule in the Peruvian Guano case.

BRENNAN J: But if, for example, you had a Cabinet document

which indicated that the members of the Cabinet
intended the Secretary of the Prime Minister's
Department to pursue the matter, that might give
the plaintiff a very clear indication that he
should then go and look at whatever the Secretary
of the Prime Minister's Department had in his safe.

MR MASON:

But presumably those documents would themselves

have been discovered, certainly in the present
case, and they presumably would have been
discovered without the claim of public interest
immunity that has brought the parties to this

Court. In one sense that points up the difficulty.
Because one is trespassing into this area where
candour is a critical factor, an acknowledged
critical factor, the court, with respect, should be
prepared to apply the more rigid test of
likelihood - and we do not put it higher than
that - of support of the case of the party seeking
discovery rather than the more general test.

BRENNAN J:

I confess for myself I do not understand this

half-way test, as it were. I can understand the
notion that a court has to form some sort of a
value judgment as to whether the interests of the
party to the litigation should be subordinated to
the public interest in confidentiality or vise
versa as a broad general question. But some notion
that a court forms the view as to the likelihood of
the use to which a party might put information is a
very difficult judgment for a court to form, is it
not?

MR MASON:

It is, and we are only seeking to have this

threshold test apply where the documents clearly
raise a category of immunity.

BRENNAN J: Yes.
MR MASON:	Difficult though it is, it is no more difficult

than many judicial tasks and it has the advantage
of saving the Court the time involved in proceeding
to the next stage, which is the true balancing

stage. The documents can just be put aside. The
confidentiality is recognized because of, as it
were, a trade-off between the confidentiality and
the marginal utility of the documents.

BRENNAN J:

You would still have to go through them all,

would you not? You would still have to look at
each document.

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MR MASON:

In one sense the Court or someone has got to do

that anyway. It may be that that would not be in
issue or it may be that one would separate the
documents and say, "Well, by admission these are
the documents which are within the outer margin of
the Peruvian Guano test and these are the ones
which are not". But in our submission, the net
result would be a saving in judicial time because
of the need not to be involved in the balancing
test and all that it involves if the documents are
at first blush not at the heart of the litigation.
Your Honours, we submit that there are two

errors of principle in the Full Court's approach to

the matter, referred to in paragraph 3. It is not
entirely clear how much the first coloured their
entire approach, but in describing public interest
immunity twice as a matter flowing from a
self-imposed judicial restraint and at another
stage a concession, it is easy to see, in our
submission, how the court flowed from that into
discussion about case management, the effect of the
rules and the like, whereas, in our submission, it
is a matter of substantive law, even if these rules
had not had rule 17 that said, "Nothing herein
shall touch matters of public interest immunity" -
and many rules of court do not have any equivalent
to rule 17 - there would, nevertheless, be - and I
will not put it as a right - a duty in the court,
in our submission, when apprised of a matter, to
uphold the amenity.
The second error, we submit, was to regard the

appellate role of the court as if it were an appeal
from a discretionary judgment. Your Honours, there

is some authority in support of that. In Cain v
Glass, the two judgments referred to are those of
Mr Justice Kirby and Mr Justice Priestley.
Your Honour Justice McHugh was the third member
and, as we read your judgment, there is no express

discussion of whether or not one is dealing with an

appeal from a discretionary judgment. I will not,
unless the Court wishes, read the passages.
The reference to D v National Society for the

Prevention of Cruelty to Children is a statement by
Lord Wilberforce, where His Lordship clearly saw
the appellate court role as being an appeal from
discretionary judgment. The passages in Crompton's
case and Burmah Oil which we refer to are really in
the same category as Sankey v Whitlam in that
whilst the Court does not expressly say, "This is a
true appeal", the Court by its approach to the case
clearly treated it as such in that the appellate
court went straight into the balancing exercise,
applied the matter afresh for itself, looked at the
documents in some cases, and in Alister's case gave

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liberty to the Crown - I think it was the
Attorney-General for the Commonwealth - to adduce
fresh evidence in support of the claim for immunity
once, as it were, the documents had been flushed
out of ASIO in that case. In our submission, all
of those matters, while they do not involve any
express discussion of the matter, are inconsistent
with regarding the appeal as being one within the
principles of House v R.

At the top of page 3 we have endeavoured to

state some reasons in principle why the Court
should favour that approach. If, ultimately, one
is looking at a duty imposed upon a judicial
officer, then - one cannot take this too far -there
is no reason why that duty should not apply to an
appellate court, particularly when the appellate
court might be apprised for the first time of the
true nature of the documents. That may occur
either because the matter was not addressed
properly below or because the Crown was not even

party to the revelation of the information. We
would submit that the public interest requires the
greater level of appellate review with the right to
adduce fresh evidence and that the Full Court
erred.
The two cases that are referred to in the very

end of paragraph 3 are both cases dealing with the
Bread Manufacturers' defence in contempt and the
first, at 152 CLR 25, at page 60 is in the judgment
of Chief Justice Gibbs in Victoria v BLF, where
His Honour said that:
If their Honours considered that they had a
discretion to weigh one consideration against
another, and to make a discretionary judgment
as to whether a contempt had been committed or
was likely to be committed, they were

mistaken. The balancing of interests which is
mentioned in Attorney-General v Times

Newspapers Ltd is done by the law in
formulating the principle to be applied, and
not by the court in deciding a particular

case. The resulting principle requires that
the court be satisfied that there is a real
risk that the material alleged to be a
contempt will interfere with the
administration of justice in pending
proceedings before it can hold that a contempt
has been committed -

Your Honours, in Hinch's case, that passage - and
the references are given in our outline - was

approved by Mr Justice Wilson at page 39; Hinch v
Attorney-General for Victoria, (1987) 164 CLR 15.

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Your Honour Justice Gaudron, at page 85 said, near
the bottom of the page to the same effect:
Thus the first step in the application of the
principle in Bread Manufacturers is to
identify the public interest which is raised
in competition with the public interest in
protecting the administration of justice from
risk of interference, and thereafter to
evaluate the competing public interests, not as a matter of discretion, but as a question of law, to determine which public interest
takes priority in the circumstances.

Your Honours, we would submit that that reasoning,
by analogy, applies here.
If we are correct and, therefore, one is

involved in a true appeal, then we would submit
that there was, in the judgment of
Mr Justice Jenkinson, a failure to give sufficient

weight to the candour notion. May I just give
Your Honours some references to discussion of
candour in cases: the Carey case, at 176 and 177,
which is a passage that has been read already;
United States v Nixon, 418 US 683, at 705 and 708;
The National Labour Relations Board v Sears Robuck,
421 US 132, at 150 to 154.
There has been a discussion of it in the context of FOI legislation in Australia where several categories of documents for which non-
disclosure can be claimed, the non-disclosure will
only be upheld if the public interest favours non-
disclosure and there has been a discussion of
candour in re Howard, (1985) 3 Administrative
Appeal Reports 169, Mr Justice Davies, what one
might call pro-candour; and Harris v ABC, (1983) 50 ALR 551, and on appeal 51 ALR 581, the Federal Court, anti-candour.

Your Honours, we submit that the approach of the Federal Court and of Mr Justice Jenkinson who
said, at page 172, that he had not looked at the
documents and, therefore, could not express any
view as to whether they did, in particular, weigh
down the scales, revealed an error of principle,
even if one has to establish an error of principle because, as we submit, at the top of page 4, there was, in effect, an abdication in favour of the
first respondent's counsel of a judicial task.
Your Honours, the authorities we have referred

to I will not read. They simply stress the context
that it is a judicial function not the executives

function, and the New Zealand and Canadian case
depart from the English cases in saying that one

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reason why you do not erect a high test for a

end, to be satisfied. judicial peak is that it is the court's job, in the
Now, can the court, in effect, delegate that

function to counsel for the applicant party. There
could be no difficulty, in principle, with
delegating it to a referee or a master, subject to
chapter III considerations, but we would submit
that to empower counsel for the party seeking the
document amounts to an abdication, although the
counsel are obviously officers of the court,
particularly with respect to documents of the
present category. If what attracts the immunity is
the chill factor, as it were, then, in our
submission, that would apply and if it is a matter,
therefore, of reasonable perception, it would apply
with equal force in the mind of a Cabinet minister
in relation to disclosure to a hostile party's
counsel as it would to the whole world.
For the court to call in an opposing party's

counsel is, in our submission, to betray the secret
which the court has the duty to protect, unless the
public interest requires to be overridden. At the
end of the day it is not the court's secret that
can be given away, it is the public's secret and
the court is the guardian of that and, in our
submission, it must find, within its own processes
of judicial management, the means whereby the
balance can be struck. Your Honours, paragraph (b)
I think repeats some submissions that my learned
friend has. If the Court pleases.

MASON.CJ:

Thank you, Mr Solicitor.

Mr Selway?

MR SELWAY:· If the Court pleases, does the Court have our

outline of submissions?

MASON CJ: Yes.

MR SELWAY:

Our submissions differ from those of the

Commonwealth and New South Wales. In respect of
procedure our submissions take the following
points. Firstly, we put that there is no
obligation to produce documents to the court or to
anyone else except pursuance to the law or a rule.
On that basis we say that the starting point for
any determination of the issue of production is not
the claim for privilege but rather the obligation
to produce, and we say that commences, in this
case, by looking at the relevant rules.
Our submission is that the court only

considers the claim for privilege if there is a
relevant likelihood that the document would be

produced even if it were not privileged. We say

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that when that relevant likelihood exists, then the
court proceeds to balance the public interest, and
if the court is uncertain where that balance lies
it can proceed to inspect the documents.
In respect of those propositions we give as an

example, perhaps an absurd example, that if the
rules provided that documents should be discovered
but not produced, or that they should only be
produced if, for example, they had emanated from
the party seeking production, then, in our
submission, there would be no need to balance the

process, that is to say the question of production.
public interest at all at that stage of the the court does not need to proceed to balance.

BRENNAN J: But if you have got an affidavit of documents which set out these documents as relevant in the

Peruvian Guano sense, they would be produced, would
they not?

MR SELWAY: Well, with respect Your Honour, that is what we

say that Air Canada is about. Air Canada, in our
submission, at least at one level of that decision,
stands for the proposition that the relevant rule
in England did not have that effect; that is, that
documents which were admittedly relevant did not
need to be produced.
If I could refer the Court, without taking the

Court to the relevant references, to paragraph (2)

of our outline of submissions. The English Rules
provide that:
No order for the production of any documents for inspection or to the Court shall be made
under any of the foregoing rules unless the
Court is of an opinion that the order is necessary either for disposing fairly of the
cause or matter or for saving costs.

And that is to be distinguished, with respect, from
the order in respect of discovery of documents,
which applied the ordinary principle of relevance.
In our submission, what the House of Lords

did in Air Canada was say that the effect of that
rule was that otherwise relevant documents did not
need to be produced. They went further and a
majority held, Lords Fraser, Wilberforce and
Edmund-Davies, that documents which were necessary
to dispose fairly of the case in terms of the rules
were those documents that would assist the case of
the party seeking production, and the majority
distinguished that situation from the situation
where the documents were relevant to the cause in

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issue; that is to say, it may assist the other
party, the one not seeking production.
We say that is what Air Canada is about, at

base; that is what the Court of Appeal in
New Zealand has said that Air Canada was about; it
is what the Supreme Court of Canada has said that
Air Canada was about, and we submit quite rightly.
We submit that the English Rules that were applied
in the Air Canada case are the same as those rules
applicable in this Court in its original
jurisdiction, as well as in Western Australia,
Tasmania and South Australia.
I hope the Court has some extracts from the

rules of the High Court of Australia, the
Federal Court of Australia and the supreme courts of the several states.

MASON CJ: Yes, we have that.

MR SELWAY:

Yes, I will not take the Court to that in any

detail; it merely contains the relevant rules so
far as we could find them in respect of production
of documents and discovery. Of course the English
Rules are not applicable in all jurisdictions. The rules in New Zealand provide that:
The court or a judge may at any time order
either party to the action to produce, for the
inspection of the opposite party, such of the
documents in his possession or power relating
to any matter in question in the action, as
the court or judge thinks right and the court
may do with such documents when produced in
such manner as appears just.

The New Zealand Court of Appeal held that the
effect of that rule was different from the English Rule and that the effect of that rule was that all

party. In respect of that rule the only issue is relevant documents had to be produced to the other
whether the relevant document has been discovered

or should have been discovered. Once that has
occurred the court then proceeds to balance the
public interest if a proper claim for immunity has
been made.
We contrast the New Zealand Rule with that in

England and make the submission that the rules in
Victoria and in Queensland are in similar terms to
the New Zealand Rule. This case concerns the
Federal Court Rules which, in our submission, are
the same as the New South Wales Rules. Without
taking the Court to them, under those rules the
document shall not be ordered to be produced unless

necessary at the time when the order is made. The

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Full Federal Court in this case held that the rules

were less confined than the English Rules. Can I
just give the Court the references to the appeal
book at page 240, line 20; 264, line 52 to 265,

line 55 and 269, line 19. We note that there is
authority in New South Wales to the contrary, that
is that the relevant Federal Court Rule is the same
as the English Rule.
We refer the Court, without reading from it,

to Justice Cross in the case of Boyle v Downs
(1979) 1 NSWLR 192 at 205C. Apart from that, we do
not make submissions as to what the relevant effect
of the Federal Court Rule is, apart from drawing
the attention of the Court to what we say is the
relevant issue in that regard.
It is our submission that when considering

production of discovered documents for which
privilege is claimed, the court must first form the

view that there is a likelihood that the documents
would be produced, even if they were not
privileged, before the court considers the claim
for privilege. We say under the New Zealand rules,
this will be established if the documents have been
discovered, so that the court can then immediately
proceed to balance the public interest.
Under the English rules which are applicable

in some jurisdictions, including South Australia,
the court only proceeds to consider the claim for
privilege after determining that there is a
likelihood that the production of the documents
will advance the case of the party seeking

discovery. We accept that that may be a difficult
task on occasion, but what we submit is that that
is not a test restricted to a claim for public
interest immunity.
That is a test which, in our submission,

applies to all applications for production. In the

ordinary course, it may be that the court will, as
a matter of course, order the production of every
document which is discovered. It may be, as a
matter of course, that the party from whom
production is sought will produce those documents
for inspection without order, but what we submit is
that the rule itself requires something more. If a
properly argued case is put, the court must
consider it.
We do accept that there are cases where

procedural issues such as rules may be largely
irrelevant in determining whether and how the court
should consider a claim of public interest

immunity. An example may be the case of Alister v
Reg where the objection was not taken to production

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but to disclosing whether the documents exist.
Such an objection is quite understandable in the
context of security documents, defence documents
and suchlike.
We say that even in this situation, there is a

possibility of applying the same approach. A party
specified in the subpoena when the party issuing the subpoena has reasonable
receiving a subpoena, as the Director-General of court the material

grounds to believe that that material exists. We
would refer to Your Honour Justice Brennan in
Alister, 154 CLR 404 at page 451 point 7.
On that analysis, we say that the party

seeking production only needed to show that there

was a likelihood that the document existed. The
Court found that there were reasonable grounds for
that likelihood and consequently proceeded to balance. We say that on that analysis, it is consistent with the approach we put forward.
Once the court has proceeded to the balancing

exercise, our submission is that there is no
absolute exemption in respect of any matter
touching what used to be called Crown privilege.
That includes the internal documents of Cabinet.
Our submission is that where the claim is a class
claim in respect of Cabinet documents, the claim
rests upon the convention of the secrecy of Cabinet
deliberations.
Other bases for the immunity such as candour

or the prevention of ill-informed or captious
political or public criticism are only relevant, in
our submission, to the extent that they form the
connection between the convention of secrecy of
Cabinet deliberations and the convention of Cabinet
solidarity. In our submission, the convention of
Cabinet solidarity could not survive without the

continued maintenance of Cabinet secrecy.
The convention of Cabinet solidarity is, in

our submission, important and essential to the
continued operation of responsible government as we
understand it. We refer to three further practices
and conventions within the Constitution, in
particular that the government must have majority

support in the lower House of Parliament. If a
vote of no confidence is made in the government or
in the chief minister, then the government must
resign or advise an election. Under this
convention, the government stands or falls
together. For a government to operate to remain in
office within the Parliament, it must operate as a
block.

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Furthermore, we say that the government must

stand together in the party room. If either the
Parliament or the party room could inquire into the individual views of ministers within Cabinet, it
could not be expected that Cabinet solidarity would

long survive. We refer the Court to the
references within the judgment of the Full Federal
Court in this case, to the development of Cabinet secrecy and Cabinet solidarity at the same time as the development of a party system in England.
In our submission, Cabinet is the forum where

the views of the Parliament, including the
political party, interact with those of the
executive to ultimately result in government

policy.. By its nature it must be secret.
Secondly, we draw attention to the office of

chief minister, be it prime minister or premier.
That is a position that only exists pursuant to
convention, though it is mentioned in the Australia
Act in respect of the States. The power and
control of the chief minister is directly related
to the proper operation of the Cabinet process
which the chief minister controls by virtue of the
control of the Cabinet office.
It is in that context that the comments of

Prime Minister Callaghan quoted in the Full Federal
Court in the appeal book at page 224 line 45, to
the effect - and I am paraphrasing - that Cabinet
secrecy means what he, Prime Minister Callaghan,

said it meant, can be understood. The enforcement
of the convention of secrecy is ultimately within
the control of the chief minister.
Thirdly, and within the executive most

importantly, the relationship of the Cabinet to the
Governor in Executive Council is governed by the convention of Cabinet solidarity. At law the

Governor in Executive Council is the supreme
executive body. In practice the Cabinet is. This
rests upon the fact that all ministers in Executive
Council are bound to support the decision of
Cabinet so that the Governor receives uniform

advice. And, of course, apart from the reserve
powers the Governor must act upon that advice. Our
submission is that that context serves to highlight
that the convention of Cabinet solidarity is an
essential aspect of the organization of the
political process.
We say that the importance of the convention

of secrecy does not depend upon the inherent
confidentiality of what is discussed. It depends
upon the fact that it is discussed in Cabinet, and
that Cabinet deliberations must be secret to

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maintain Cabinet solidarity. It does not depend
upon some duty or obligation existing between
Cabinet members, but rather to the public interest
in ensuring that present Cabinet ministers can
approach their deliberations in the certainty that
what they recommend and discuss in Cabinet today
will not be revealed publicly tomorrow.
In our submission, once it is accepted that

the reason for the confidentiality of Cabinet
deliberations is the maintenance of that
confidentiality in the future, then several things
flow from this, some of which, in our respectful
submission, have not been appreciated in some of

the cases.
First, there is no reason to preserve

confidentiality of Cabinet deliberations in
judicial proceedings if the information has already
been made public, and this may meet to some degree
at least Your Honour Justice Brennan's comment this
morning about ministers proudly announcing to the

world what they were taking to Cabinet. With
respect, if they proudly announce what they have
taken to Cabinet they cannot then ask this Court or
any other court to protect them from what they have
already announced. There is then no reason to
maintain the secrecy in respect of that minister
and what he has taken to Cabinet.
We say that the distinction between what is

public and what is secret serves to distinguish the
result of Cabinet decisions from the process by
which they are arrived at, and, in particular, what
a particular minister said or did in Cabinet.
The final decision of Cabinet is usually not

confidential. In fact, by its nature, most of them
are generally made public in the short term, most
of them in the very short term. It is essentially

the deliberation and determination of government
policy in action, and these, by and large, are
things that the government wants to be public.
Whilst we say that the final decision is not
usually confidential the process by which it is
arrived at is.
The distinction between the result of

deliberations and the process is not strange or
peculiar in this area of confidentiality and

secrecy. The same applies in respect of jury

deliberations. The decision of a jury is public
but its deliberations are secret, subject to a
limited number of exceptions related to misconduct,

partiality, bias and so forth. We would simply
refer the Court to the cases of

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Re Matthews and Ford and Reg v Gallagher, at
paragraph 8 of our outline.
If I might, perhaps, quote one sentence from

Reg v Gallagher, at page 249, where the Victorian
Full Court made the comment:
Indeed nothing is more likely to bring about
the abandonment of the system of trial by jury
than intrusion into the

jury room. And that, of course, is self-evidently

true. We also say that nothing is more likely to
bring about the abandonment of the system of
Cabinet government than intrusion into the Cabinet
room.
We also submit that given the reason for the

convention and the public interest in respect of
it, that public interest and confidentiality is not
limited to matters that are current or topical or
to matters that are political contrasted with
commercial, though we do accept that those are
issues to be borne in mind in the balancing
process.
Our submission is that we would ask this Court

to confirm the heavy and usually compelling weight, to be accorded to the need to maintain the secrecy
of Cabinet deliberations, when balancing the public

interest. We submit that there are cases,
particularly of single justices of supreme courts,

where that has not always been applied. In our
submission, there are cases where the judges have
effectively adopted the test that the material
should be released if the contents are not
controversial and if they may have some relevance
to the hearing.

MR SELWAY:

If it please the Court, we have handed up an

affidavit by Graham Foreman dated 15 May 1992. I

will not ask the Court to read it now. The purpose
of doing - - -

BRENNAN J:	Or at all?
MR SELWAY:	I would ask the Court to peruse it in due

course. I will quickly summarize the reason we

hand it up. The affidavits in this matter disclose
the procedure in respect of Federal Cabinet, and
that procedure is a somewhat more formalized
procedure than certainly applies in South

Australia. The Cabinet procedure in South
Australia, which is outlined in that affidavit,
involves the submission by a minister to Cabinet of
a Cabinet submission, which normally contains a
recommendation by that minister to the Cabinet.

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At the end of the Cabinet process that Cabinet submission is stamped by the premier and signed by
him as either approved, disproved or approved with

variations. To a greater or lesser extent, that is
the extent of the record of Cabinet deliberations
in South Australia.
The Cabinet office also maintains a register

of Cabinet decisions which it takes off the Cabinet
submissions as they leave Cabinet and go back to
the relevant minister. There are no notes, no
public servants attend, no other records are kept.
The reason for bringing that to the Court's attention is so that the Court would be aware that
the procedure adopted by the Commonwealth is not
necessarily applied throughout.

MASON CJ: That is all we need to know.

MR SELWAY:

I think so, Your Honour, and that is the only point we wish to make.

As to inspection: I have already made the
submission that the court can inspect the documents
if it is uncertain where the balance of the public

interest lies. I refer the Court to the cases at

paragraph 12 of the outline. I would ask the Court
that we acknowledge that there are at least dicta in the Air Canada case which are contrary to that
proposition.
I would refer the Court to paragraph 13 of our

outline which I think repeats the submissions
already made by the Solicitor for New South Wales.
Those are the submissions for South Australia.

MASON CJ~

Thank you, Mr Selway.

Mr Castan.

MR CASTAN:

I hand up an outline, if the Court pleases, and I should say, in advance, as the Court is receiving

it, that it includes a heading Bon page 3, the

bulk of which was inserted by way of an abundance

of caution, one might say, we being in some

uncertainty, having carefully reread what happened

at the application for special leave hearing, as to

whether or not this Court might not find itself,

shall we say, embroiled in an evaluative process.

MASON CJ:

I thought we made it very plain that we had no

desire to be involved in such a process and that we
were concerned only with matters of principle.

MR CASTAN:

Yes, that is exactly what as said, Your Honour,

but what preceded that had about it, at least on
that day, the air of some evaluation of the process
that had actually been undertaken by His Honour

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Mr Justice Jenkinson. We had some concerns, to be
quite frank, that coming here we would find
ourselves with the Court having engaged in that

process. As it has turned out that is not so and I
simply mentioned that - - -

MASON CJ:

We can dismiss then from our consideration all

that follows under B.

MR CASTAN:

Yes.

The first proposition is a straight

forward one, as you will see. In going back to the
start of the submissions, as summarized,
Your Honours, it is, of course, our broad
proposition that there is no class of documents
which fall into the category that our learned
friends for the Commonwealth have put that have

some absolute immunity. We put that and it is
perhaps not necessary to go into depths in
responding to that because most of what we wanted
to say emerged in the course of debate this morning
with our learned friend, Mr Graham, as to the kinds
of considerations both in dealing with the
frankness and candour argument, the captious
criticism argument and the other collective
responsibility concept.
Perhaps the only matters that we would add to

the general matters that have been put by way of
debate concerning the diminution of what might be
termed the "holy principle of Cabinet
responsibility", as it was put at its very highest,
is to point out that there is, from time to time,
publicity, not only of the kind that
Justice Brennan pointed out about a minister who
says what he is going to do and then says, "I got
rolled", but from time to time, as the Court - - -

MASON CJ:

He generally does not say that.

It is generally

somebody else who says that.

MR CASTAN:

Or somebody else says it.

I cannot remember how

His Honour put it this morning but, in any event, one knows that from time to time there is what is
occasionally referred to as a feeding frenzy by the
media over some particular event and one occurred
two years ago in relation to the actual numbers of
who had voted which way for and which way against
in relation to a decision in relation to Coronation
Hill and whether it was done for the purpose of
keeping the Prime Minister happy or whether it was
this or that political consideration. Those kinds
of matters are common knowledge and even at the
level of determination of high policy and even at
the level of matters highly political and perhaps
potentially highly embarrassing for a government in
a particular situation it is not the case that

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there is some great principle out there that says
that one never gets to know what happens.
If it be the case that this is a mere

convention, if it be the case that this is really a
principle but one that is from time to time
observed in the breach, then we would say all the
more it can hardly be appropriate for this Court to
be laying it down or moving forward from it to lay
down some rigid principle of law.

BRENNAN J:	It may not be a rigid principle of law but the question really is if the notion of Cabinet
confidentiality is in the public interest, so that
a government, well disciplined, can run the affairs
of the State, the question is not perhaps whether
governments, ill disciplined, do not observe it but whether the courts should do anything to undermine
it?
MR CASTAN:	Yes.

BRENNAN J: That is a different question, is it not?

MR CASTAN:

Yes, and we accept the question in the terms as

Your Honour has put it to me and our response to
that is that the court is not doing anything to
undermine it if it sets up the appropriate
processes that involve the balancing that has been
referred to. In other words, that principle, as
expounded or put to me by way of question by
Your Honour, should find its appropriate reflection
in the evaluative process, the balancing process.
But it is our respectful submission that to erect
it beyond it, to erect it into an absolute bar, and
as appeared from our learned friend's submissions
this morning, it became apparent it meant that
almost regardless of time, regardless of
circumstance, regardless if it related to whether
the government of the time, well disciplined though
it might be, was merely acting in some commercial

capacity in relation to the matter that comes up in
litigation, regardless of subject-matter,
regardless of all the other factors, that this is

to be some absolute bar. Now it is that
proposition that we would respectfully submit
should not be adopted by the court, and the
underlying proposition that we put, the basis that
we put forward the proposition, is that there is a
substantial interest, obviously enough, in
preserving well-disciplined and effective
government, but it should not be elevated over and
above all other factors in all other cases, and in
effect this Court is being invited to lay down a
rule that will operate, so to speak, universally,
and if it so holds in this case, will have that
effect across the board.

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Can I add to the references that appear under paragraph (1) two other references, one of which
appears in our list and one which does not: one is
an article, Cabinet Secrets as Evidence by
I.G. Eagles in 1980 Public Law, page 263, and that
is an article in which the learned author takes a
fairly vigorous, shall we say, view of the reality of both the political process and the significance of Cabinet secrecy in commenting largely on the
decision of this honourable Court in Sankey v
Whitlam, and we would respectfully commend that to
the Court.
The other is a useful collection of

interesting cases of, shall we say, lapses in
collective responsibility, which appears actually
in what is a Law School text, but is very usefully
collected in Fajgenbaum & Hanks, Australian
Constitutional Law, first edition - I do not think the material is in the later edition - 1972 edition
at page 108 to 120, and there are interesting
references there to some of the difficulties of
some of the State governments in the 1930s and the
difficulties that a Mr Berry ran into with
Sir Robert Menzies in commenting on the
Common Market and other examples that give one a
broader view of the way in which these principles
really work in practice.

In our respectful submission, we have set out the balancing process referred to.

We would
respectfully commend to this honourable Court the
way in which the Full Court of the Federal Court
dealt with the issue of Cabinet and Crown discovery
and the whole public interest immunity. The
passages are from pages 221 to 234 in the appeal
book. It is, in our respectful submission, perhaps
better than any of the texts or other analyses that
one finds in terms of both a collection of the
authorities and a detailed analysis of the concept
of Cabinet, the history and the way in which it

evolved and, in our respectful submission, is
appropriate to be adopted by this Court.
We pass from the concept of the general

barrier, as it is put, or the general immunity of
Cabinet to the concept of the balancing process.
It is our submission, as appears at the foot of
page 1 of our summary, that there in truth is no
threshold to be overcome before engaging in a
balancing process. We would respectfully submit
that the concept of the threshold and the way in
which it has been spoken of is itself a misnomer
and it leads to what we have perhaps criticized in
our paragraph 4 on page 2 of this summary, that by
in effect engaging or positing this two-stage
process, a threshold and then a balancing process,

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one is distorting the process and eventually what
happens is that as occurs when one looks at the
English cases and then the more recent Canadian and
New Zealand cases, one finds the courts getting,
with respect, bogged down in terminology.
The phrase "on the cards" is used in a number

of instances; "concrete grounds" are spoken of, as
distinct from "mere likelihood". The use of this
kind of terminology, the terminology of "concrete" and the terminology of "cards" and the terminology
of "substantial support" as distinct from that
which is "likely to assist", all of this, in our
respectful submission, is largely unproductive
because the evaluation of the significance of the
documents, the materiality, is one of a large
number of factors.
What we have done is set out there in

paragraph 4 twelve factors, and there may be more.
We do not suggest for a moment that that is
exhaustive. Could I take Your Honours to page 6,
the last sheet, of the summary that we have handed
to you, because we have attached a form of chart,
if you can call it that, in which we have
endeavoured to illustrate that there is not one
single hurdle and then an abstract balancing
process.
There are numerous factors and they will tend

one way or the other in given cases, either in
favour of production or in favour of overcoming
immunity or in favour, on the other side, of the
immunity. That may range across the continuum.
Some cases of course are either civil or criminal,
but in other instances there will be gradations of
importance of a given factor ranging from the
significance to the litigation of the particular
material, the relevant usefulness leading to a
chain of inquiry, to pick up Peruvian Guano in the
third item, as distinct from where one knows and

has on hand clear evidence, actual admissible
evidence that directly bears on it. Subpoenas is
the next one, where one subpoenas on the blind, as
distinct from clear oral evidence as to something.
Then one looks at the degree of involvement of the Crown, the subject-matter. The reference in
that sixth item to buying paint and tourism are
references, in the case of tourism, to the Canadian
case of Carey, where the Cabinet discussion was
over an investment by the government in a tourist
lodge in Ontario. That might be very different to
issues of national security and foreign affairs,
and that is referred to of course in the cases.

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Age and currency are obviously relevant and must be taken into account; the character of the
subject-matter, the policy level, the structural
level, and obviously Cabinet and the Executive
Council, the matters under discussion here, weigh
significantly in favour of immunity as against
lower level officials which are the subject of
claims from time to time; the nature of the
statements.
We have also included there the rules of

court. What we would seek to put to the Court is
that the whole debate that has gone on about the rules of court is another misnomer or element of confusion in this area. What has happened in
relation to the rules of court is that in the
English cases, the reality is there has been in
those cases, when one analyses the decisions, a
great deal of emphasis on the rules of court. For
on the rules of court and took that as giving the guideline to the way in which they should deal with
reasons, no doubt good reasons to some of
those instances, particularly in Burmah and Air
Canada.
In our respectful submission, of course,

criticisms such as occurred here in the Full
Federal Court of the fact that the English cases had turned on the rule of court analysis or.an
unwillingness to follow that analysis, which is
perhaps a more accurate way of describing what
occurred in the Full Federal Court, is not an instance of the Federal Court determining the matter by virtue of picking up differences in rules
of court; it is precisely the opposite of that.
What in fact happened was that the Federal

Court itself avoided the trap, if I can call it
that, of focusing on rules of court because they pointed out that in the English cases, the test,

the threshold that was laid down, the somewhat
higher threshold, was determined by reference to
the rules of court.
So that it is, in our respectful submission,

not appropriate to direct the criticism at the Full
Federal Court for picking up rules of court, and much of the debate that has gone on here, in our
respectful submission, is misplaced in relation to
rules of court. They may be a factor, the words of
the rules may play a part, we have included them as
one of the balancing elements, and they may give
guidelines in some instances. In our respectful
submission, as the Full Federal Court observed,
they played a very considerable weight in the
determination in Air Canada and the Burmah case.

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26/5/92

Now, our basic proposition then is that there
is no category of documents which has an absolute
immunity; secondly, there is no threshold that one
must find. There is a balancing process, and in
every case there will be different sorts of factors
that one must pick up in order to see what those

balancing factors are. We say that the Full Court
was correct in speaking of a large number of

factors which is what they did at page 271; we
would respectfully refer to the passage of the
judgment of Your Honour Justice Brennan, at

page 455 to 6 in the Alister case where Your Honour
specifically talked about the evaluative process
without setting any thresholds or adopting any of
the tests that had been canvassed, but simply
saying there are a number of factors which must be
evaluated, and then proceeded to list some of them
without, as we would understand it, seeking,
necessarily, to be exhaustive. To use the -

MASON CJ: What is the difference between factor (ix) and

factor (x) in your paragraph 4?

MR CASTAN:

It may be that in some instances there is no

difference, or it may be that in some instances
there is a difference. Characterization may speak
in terms of - I have got my numbers confused, would
Your Honour excuse me a moment, I am just trying to
pick up off the chart which are the ones. Yes, I
am sorry, Your Honours, items 2 and 3 on the chart
are the equivalents.
The way in which we would put it is that one

might - we call "significance" a situation in which one may be able to speak of the particular material
with some certainty about what effect it will have,
or in some other instances total uncertainty.
While "usefulness", we have picked up the words of
Peruvian Guano, on the one hand, and the other
extreme of actual admissible evidence. So, the

word "significance" may, perhaps, be inappropriate; perhaps what is more appropriate there is "degree of knowledge of what is contained in the material
that is sought" might be a better way of
characterizing that.

So, having put those two broad propositions,
there is no absolute immunity and no real threshold
but a balancing process, we then put, at the foot
of page 2, as our proposition 6, that if there be
some threshold, if our general propositions and
this table as a guideline, so to speak, of the
process is not accepted, then, in our respectful
submission, the proper test is no more than the
Peruvian Guano test, the way in which it was
expressed at page 269 as we quote it at the top of
page 3 of our summary, that is to say that there is

NLC(2)

26/5/92

a likelihood, in a sense of some probability, that
the documents will advance the plaintiff's case or

damage that of the Commonwealth. And that is
really all that was being done there, in our
respectful submission, was to pick up what is, in
effect, the Peruvian Guano test, and
Lord Edmund-Davies is, we think, the only one of
Their Lordships in Burmah Oil who adopted that
criterion and we have referred to that.
We turn then to confront what we understand to

have been put by our learned friends for the
Commonwealth, which is to the effect that Alister,
in some way, has laid down some higher test; the
concrete ground for belief that it is likely that
the materials in question would contain evidence
for tender at trial which would substantially
assist the plaintiff's case.
In our respectful submission, a careful

reading of Alister simply does not lead to the
conclusion that Alister laid down any such test as
my learned friend has contended for. In fact, one
finds again a variety of expressions which
His Honour Sir Harry Gibbs at page 414 point 9 as
we there set out, used words such as -
it may be enough that it appears to be "on the
cards" -

though it is not clear at all what he meant by "on
the cards", whether he meant by that "on the
balance of probabilities", or merely that it meant
a prima facie view that it fell within the notion
of the discovery test. And Sir Ronald Wilson and
Your Honour Justice Dawson stressed that mere
speculation was not enough, and that a fishing expedition would not do, while Justice Brennan
specifically made the point that it was a hook cast
in a fishing expedition, but then went on to say

nevertheless that would do since the result in that
case was that that threshold apparently was
sufficient for Your Honour.
Now, perhaps all that does is illustrate that

the use of these terms perhaps confuse more than
they clarify and setting these kinds of criteria or

tests do not assist. But if there is to be some
test, then we point out that these references
demonstrate that on a proper analysis the fact that
there are some of the judges of this Court who in
Alister have referred at some considerable length
to Air Canada and Burmah Oil, and have repeated the
passages from those cases does not mean that the
test laid down is somehow authoritatively now
proclaimed in Alister as a threshold that must be

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met. In our respectful submission, that would be a
misreading of Alister as well as a misreading of
those two English cases.
We point out in paragraph 8 that statements which appear to set out this concrete ground for
belief that it is likely that the materials in
question would contain evidence for tender at trial
as a test, actually have stemmed from the peculiar
focus that occurred in those two major English
cases on the wording of the English rule in
Order 24 rule 13. There is an excellent analysis
in the Carey case at pages 189 to 194 in
(1985) 35 DLR (4th), in which His Lordship
Justice La Forest has analysed that very matter,
and pointed out that it has stemmed from this
particular concentration by Their Lordships on the
rule.
Similarly in Fletcher Timber,

(1984) 1 NZLR 290 at pages 294 to 295, and at
page 303, there are some fairly vigorous comments,
shall we say, by Their Honours in the New Zealand
Court of Appeal analysing the Air Canada case and
the Burmah Oil case and expressing the view that
whatever the position might be in the courts of
England that that will not prevail in New Zealand.
The Carey case is, as my learned friend has

already pointed out in the extracts he read from
it, interestingly similar to the present in terms

of its facts; a case involving 12 year-old Cabinet
documents dealing with a commercial agreement, in
that case dealing with a hunting lodge and the
investment by the government as a partner in the
development of a tourism facility and an action
brought by a partner who said that the agreement
had been entered into unconscionably.
So that there are some unique similarities

and, in our respectful submission, the approach
taken by the Supreme Court of Canada and the
approach taken by the Court of Appeal in New
Zealand in dealing with these questions are much to
be commended and are appropriate and provide the
answer to the puzzle, in our respectful submission,
concerning the rules.
We pass over from item B to page 5 and the

issues of what we have termed, for want of a better
term, practice and procedure. There has been some
criticism of the Full Court's handling of what it
termed the discretion. Could I take Your Honours
to page 273 to 274, because it is important that
Your Honours see precisely what was happening here.
Since Your Honours have the book, could I start
just a little earlier, to take Your Honours to

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page 270, where Your Honours will see that having
analysed a great deal of material, the court
provides a heading "The Balancing Process", and
then speaks at the foot of page 270 and the top of
271 of a number of factors and then sets out,
"factors relevant will include the following".
Then there are some six factors set out. We have
provided to Your Honours some 12 or 13, but there
are six there set out, not purporting to be an
exhaustive list. Then it is put this way:
Inspection by the judge can be undertaken as an aide to the Court in assessing whether
or not documents for which public interest
immunity is claimed should be produced. It
may enable the judge to identify and weigh
with greater confidence than might be possible in the absence of such inspection, the factors
to which reference has already been made. The
decision whether or not to inspect itself involves a kind of anticipatory balancing

exercise. It is certainly in the nature of a
screening process but one well within the
province of the courts. It is
multi-factorial -

we draw attention to that expression; we say it is
appropriate and we would respectfully submit that
this Court should adopt it -
and does not require the application of some
rule of thumb which may distract the judicial
mind from the demands of the particular case.

We then get to the procedural issues that we are
now corning to:
From that approach it is but a short step

when, as in this case, the number of documents
is large, comprising many thousands of pages,

and the evidentiary issues are complex, for a judge to assess that the most appropriate
course is to allow confidential inspection by
the legal advisers to the parties who may,
then properly informed, assist the Court upon
the question whether a general disclosure is
necessary. That is a matter of evaluation and
discretion which is peculiarly the role of the
judge entrusted with the management of the
case.

We here come to this question of, as it is called,
discretion or evaluation:
The decision of the judge is not to be interfered with on appeal unless some error of
principle can be demonstrated either

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explicitly or by implication from the way in
which the discretion has been exercised in the
case in question.
Their Honours then set out the obligations on
counsel in line 22:
an obligation that overrides their duty to
their clients and if breached can be visited
not only with the punishments attaching to
contempt of court, but also serious
disciplinary sanctions for professional
misconduct. Limited disclosure in this way
can, in appropriate cases, protect both the
public interest underlying the claimed
immunity and the public interest in the
administration of justice. More than that,
public confidence in the justice system can be
maintained when it is known that the documents
are subject to inspection by representatives
of the parties who are then in a position to
assist the court in coming to a view -

Then at line 54:
Reference has been made earlier in these reasons to the matters canvassed by the
learned primary judge before making the order
that he did. Although each of us might have
approached the exercise of the discretion
somewhat differently and given greater or
lesser weight than did His Honour to the various factors under consideration, his approach does not, in the light of what has
already been said about class claims and the
approach to inspection and production
generally, disclose any error of principle.
In particular, it cannot be said that
His Honour has sanctioned a first step in a
speculative or fishing expedition. For, ex
concessis, by virtue of their having been

given in discovery, it can be assumed that the
documents may fairly lead to a train of
inquiry that may uncover information which
would directly or indirectly enable the
Northern Land Council to advance its own case

or damage that of the Commonwealth. By the
order under appeal His Honour did no more than
to procure the assistance of the legal
advisers to the parties on a confidential
basis to enable him to make a fully informed
decision on the question of any wider
disclosure of the documents in issue. For
these reasons it must be concluded that the
learned primary judge did not err in
exercising his discretion -

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Now, it is in that sense that Their Honours in the
Full Federal Court have reviewed discretion and, in
our respectful submission, that demonstrates no
error; it is an application of correct principle in
a case of this kind. Their Honours have referred
to the necessary process of evaluation; they have
referred to the particular step taken, which is the
perhaps unusual step of obtaining assistance in
order to decide whether there will be disclosure
and have said that correct principles have been
applied. In our respectful submission, no valid
criticism can be directed at them for having
undertaken the process in that way.
And, in relation to the role of counsel, it is

very important, in our respectful submission, that
it should be understood clearly what was happening
here. The criticisms that have been directed from
the bar table to the course that was taken by
His Honour Mr Justice Jenkinson in the Full Court in bringing counsel into the process have, in our respectful submission, failed to deal with the fact
that when the ultimate balancing process is
undertaken and, if on that process it is determined
that material is of the kind that can be produced
and used and perhaps ultimately going to evidence,
there is disclosure generally, the ultimate
decision will have to be that the material either
can go into evidence or does not go into evidence, can be used or not; there will not be any half-way house. What we are looking at is the on-going
process and one of the difficulties, of course, in
dealing with a case like this in this Court, at the
stage it is, is that of course this is very much an
interlocutory matter and very much an interlocutory
stage of the interlocutory matter. That is to say,
it has come up to this Court at a stage when it is
not even the review of the decision about whether
to release the documents or to perform the
balancing process by waiving immunity.

The criticism has been made that the immunity

is waived but, of course, that is not a waiver of
immunity, anymore than it is to waive immunity by
letting those involved in the relevant departments
see the documents or the judge himself seeing the
documents. Waiver ultimately, overriding of the
immunity or a waiving of the immunity, will result
in true disclosure of the documents and that is the
real evaluative process that still has to take
place. The decision of whether or not it is appropriate to override the immunity that is
claimed in relation to these matters which
avowedly, and as is put on behalf of the plaintiffs
in the litigation, it is the conversations; they
make no secret of the fact that it is the
conversations that are the relevant material and

NLC(2)

26/5/92

that is then said to be the evil that is sought to
be prevented, revealing the conversations. But,
the case is one which is, as we have said, closely
analogous to cases in which wrongdoing, in one
level or another, is alleged and, in our respectful
submission, properly alleged, and in those sorts of
cases that evaluative process has to be undertaken
and, where it is of the magnitude of a case as occurs here, in our respectful submission, the
suggested course of management of the matter was an
appropriate one and a proper one.

BRENNAN J: But this means that - as you say, it is an

interlocutory matter. Counsel who are in it today
may not be in it tomorrow and the dissemination
that takes place by this kind of procedure can be

quite broad indeed. You might have one counsel one
day, one another. Certainly, you might say that
they are bound by obligations of confidentiality
but the question here is whether or not the public
interest in maintaining confidentiality of Cabinet
proceedings should be entrusted into the hands of
counsel in private litigation. Counsel is not, as
it were - even if under an obligation, they are not
security cleared, for example.

MR CASTAN:

No, and if it was - the view might be taken that

in a security matter one might come to a very

different conclusion. Of course, the individual
case - it is relevant to consider the kind of case
that it is and all these other factors that we have
mentioned. And, of course, if this was a matter
that involved security considerations, one might
say, "Well, that's got different aspects." If
there were defence aspects, it might be different.
If it is to do with a commercial arrangement, as it
was, and an alleged oppressive or unconscionable
conduct in the federal government of the day some
14 years ago achieving the aims that it wanted to
achieve, it may be very different. That is part of
the evaluative process even at that stage. There

has to be some evaluation, that is conceded,
Your Honour.

BRENNAN J: What about the advice on evidence? Let us

assume that the material that is looked at, the
judge ultimately decides, should be preserved
confidential; counsel then goes and writes his
advice on evidence, shutting out of his mind what
he has read?

MR CASTAN:

When he gives his advice on evidence, he cannot

reveal anything of what - - -

BRENNAN J:

He does not have to.

He says, "Go and make an

inquiry of this, that and something else", a line

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of inquiry that he has been given as the result of
his inspection.

MR CASTAN:	In our respectful submission, Your Honour, what he is obliged to do is to maintain the
confidentiality in respect of the documents and if
the ultimate decision is that they are not to be
revealed at all, then he is under that obligation.
What Your Honour is really putting to me is that it
is difficult.
BRENNAN J:	It is putting counsel in a position of a

conflict between his duty to the obligation to
confidentiality and his duty to the client, and it
is an obligation which is difficult to maintain in
this area because of the obligation that counsel
has to ensure that the material that is produced in
evidence is directed to the client's interests.
And yet the information he might read might put him
along the train of inquiry that can lead through
the advice on evidence to the use of the material
that has been confidential.

MR CASTAN:

Yes, but perhaps it is important, Your Honour,

to appreciate that we are not here dealing with
some question of tactical advantage to be gained by

the Commonwealth by reason of the immunity. If it
leads into a train of inquiry and he can follow
that inquiry or give advice in relation to that
trail of inquiry but not advert to the material
itself and not disclose it, the fact that he makes
use in the sense that it leads to a trail of
inquiry is not anything that should give rise to
any concern. The concern here is not to protect
the interests of the Commonwealth as litigant from

having access. On the contrary, the interests of
justice for the purpose of the assumptions we make
for this discussion, for the purposes of the
'interests of justice are served by production, and
ordinarily one might have assumed had it not been
subject to the immunity, it would have been

produced and he would have been on that line of
inquiry.
To take an example, if there is a Cabinet discussion in relation to, say, a hunting lodge as
was the Canadian case, and ultimately it is
determined that the document should not be revealed because of whatever reason that a judge determines,
the fact that the counsel has seen the discussions
concerning the view that the particular ministers
had - let it be assumed for the purpose that he has
seen material which suggest that one or other of
the ministers said, "We will act improperly", or
"We can defraud him by doing thus and so", - the
fact that he then, without disclosing that material
gives advice seeking to obtain evidence relating to

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that matter or directed to it, in our respectful
submission, is not a reason contrary to the
disclosure.

McHUGH J: Well, surely it is, Mr Castan, because might I

suggest this to you, that if the trial judge in a

case like this refused to make an order, then all
the counsel would have to disqualify themselves for
this reason: so far as advice on evidence is
concerned, counsel hesitates to suggest a line of
inquiry which may have occurred to him
independently because it is something he has
discovered in the notebooks. But worse still,
counsel is on his feet in the middle of a
cross-examination and suddenly something becomes

relevant. Now, he must stop then, otherwise he is
going to make use of information he has obtained,
and if he does he has deprived his client of the
right to pursue a particular line which may have
occurred to an independent cross-examiner on his
feet. This is the real problem wherever conflicts
of interest arise in this area; not only in this
area, but just generally.

MR CASTAN:

Yes.

There may be a number of - obviously,

there can be a variety of situations. I mean,
there may be circumstances where what a judge
ordered could not be disclosed at a certain point -
say, the current stage of development in this
litigation before His Honour Mr Justice Jenkinson,
may at the stage perhaps of trial or when evidence
comes forward in the course of trial, result in a
very different result. Perhaps I am not mak~ng
myself clear. What I mean by that is that the
question of a refusal by a judge to disclose, to
override the immunity, may be subject to further

review. It may be because of a number of these
factors may militate against that removal of the
immunity at a certain stage in the proceedings, but
as the proceedings go on different factors may come
to bear and counsel may be in a position where he

witness I now apply again, because you earlier says, "Well, given what has now been said by this
ruled that it should not be disclosed, but you have
now heard much more than you knew before, and you
should now look at the documents again in the light
of what you have now heard".

McHUGH J: That is the other side of the coin now.

MR CASTAN:

Yes, Your Honour, yes, and there is reference in

the course of the - ·r have now just forgotten
whether it is the Full Court or His Honour
Mr Justice Jenkinson, to the problem of dealing
with it at various points of time, and one does not
know what decision will be reached and it may be
that, ultimately, the significance of it or the

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overriding importance of a particular matter which
overrides the immunities that would otherwise be
granted, may only become apparent at the point that
might arise when Your Honour has put it. But that
is - - -

BRENNAN J: But that is just inconsistent with the notion of

what counsel is about, is it not, to require
counsel to take part in a confidential exercise? I
mean, counsel is there retained, retained by, first
of all, his professional client and by the lay
client, in accordance with instructions to do what
can be done.

MR CASTAN:	Yes, Your Honour.
BRENNAN J:	Once this embargo is put upon him in revelation

he is hobbled.

MR CASTAN:

He is not hobbled in respect of the material

because the material is material that cannot be
used on the assumption that - the hobbling arises
if he is told it cannot be used, if it is rejected,
if the immunity is maintained by the judge,
ultimately.

BRENNAN J: Yes.

MR CASTAN:

And then it is material that cannot be used, in

any event, or cannot be used until such time as
there is some change in the ruling.

BRENNAN J:

Mr Castan, I am sure that often time has come

into your practice where you have been inspired in cross-examination to ask just that one penetrating question, but yet had you been informed that the
penetrating question would have got the right
answer, by reason of a document that you were not
allowed to reveal, you would not have asked it.

MR CASTAN:

Yes.

The only way I can put the matter in terms

of the use of counsel is that part of the role of
counsel is to put submissions to the judge and that
includes submissions at the interlocutory stage. It is possible that that sort of difficulty may
arise in some instances. But, equally well, there
may be any number of cases, and this may be one of
them, where this is by far the most appropriate
course because it does enable the judge to have the
assistance of counsel in dealing with the material.
The practical difficulty, and it is adverted

to by Their Honours is, of course, that there has
been this vast volume of material that has been
discovered and that will have to be the subject of
detailed argument and it may well, when the
evaluative process, the balancing process is

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undertaken, lead to the view that the only way to
determine it is for the judge to have a look and,
if he does, he may then be swamped by a very great

volume of material. So there are very practical
reasons why it is desirable that this should
happen.

McHUGH J: The solution might lie in requiring greater

specificity from those claiming the privilege to
identify the documents and the subject-matter with
more precision, not sufficient to disclose anything
but for example to say conversations between the
three ministers in relation to this or that on a
particular day.

MR CASTAN:

Yes, there may be some other practical solution,

but the way we put it is that, as has been outlined
by the Full Federal Court - and we are conscious of
the kind of matters that Your Honours have raised - but in our respectful submission, the management of
the case by His Honour Mr Justice Jenkinson and the
Full Federal Court in the way that they have suggested was appropriate.

MASON CJ:

Has this procedure been followed or adopted in

any other jurisdiction?

MR CASTAN:

We have been unable to find a reported case

where - - -

MASON CJ:	What about the United States?
MR CASTAN:	I would have to confess to not having

sufficiently researched the position in the United
States to properly answer Your Honour.

TOOHEY J:

I think it may have happened in an analogous

situation; that is, in relation to search
warrants. Where material has been seized and the
question of a claim of privilege has arisen, the
problem then is to test the claim of privilege and

how it is to be tested, whether it is by a judge
looking at the documents or by permitting
representatives of the parties to inspect the

documents. I do not suggest it has been reflected

in any reported decision. I think a practical
problem may nave arisen in that context.

MR CASTAN:

I regret I am unable to assist the Court.

I do

not have any references that I could give. There
is one authority that I think has been referred to
by our learned friends, the case of Kanthal
Australia Pty Limited v Minister for Industry,
(1987) 14 FCR 90, in which His Honour
Mr Justice Wilcox ordered that documents which had
been produced to the minister by other parties and
were held by him under an obligation of

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26/5/92

confidentiality to those other parties who were
commercial competitors of the party to the
litigation, were ordered to be inspected under a
restricted order by counsel for the party
litigating with the minister. But of course, there
was no element of immunity involved of the kind we
are here debating. There was a confidentiality
imposed on the minister by the persons from whom he
had obtained the documents.

BRENNAN J:

Mr Castan, in this case the order was limited to

counsel and solicitor or counsel and - - -

MR CASTAN:

They were identified as three named people,

Your Honour, that is to say, the two counsel and one solicitor, but they were identified by name as
indivtduals. The order was subsequently extended
to include myself, I not having been - that is in
relation - the orders that were made in relation to
earlier documents in respect of which there was a
waiver but on terms that there was a limited
disclosure only to legal advisers, was in terms of
three named people, and that category which related
to the minutes and the attendance records that are
not the subject of this debate. There are now four

identified people to whom that order relates. The
order that was made in relation to the Cabinet
notebooks that are subject of these proceedings
relates to three named people. It has not been
extended to any - - -

BRENNAN J: Those are the two counsel and the instructing

solicitor.

MR CASTAN:

Two counsel and one instructing solicitor,

identified by name. Those are the submissions, if
the Court has no other questions.

MASON CJ: Yes, Mr Castan. Mr Graham.

MR GRAHAM:

I have asked my learned junior to reply, if the

Court pleases.

MASON CJ: Yes, Mr Robertson.

MR ROBERTSON:

Your Honours, there are seven or eight short

points we would wish to put in reply. First of
all, in relation to the emphasis that my learned
friend Mr Selway put on the rules, we would submit
that it would be an inconvenient result, to say the
very least, if different principles emerge because
of particular different wordings in the rules in

different jurisdictions. We have already submitted
that the decision of the Court of Appeal in the Grosvenor Hotel case suggest that the matter of public interest immunity is a matter of substance
and not a matter of mere procedure, although of

NLC(2)

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course one can see that the question will arise in
the context of the particular rules. But, what
that submissions means is that, for example, the
absence in a particular series of rules of an
equivalent to Order 15 rule 17, that is preserving
the common law position, would not be of any
materiality, because the same law would apply in
the absence of such a specific preservation.
So, in other words, in our submission, the

position would be the same in the original
jurisdiction of this Court as it would be under

Order 15 rule 17 of the Federal Court Rules. So
that is the first one.
The second point is that there is one other

reference on this question of discretion. If
Your Honours would insert the reference in the paragraph numbered 6 in section D of the outline of
submissions and the reference, Your Honours, is to
the judgment of Mr Justice Isaacs in Marconi's
Wireless Telegraph Co Ltd v The Commonwealth (No 2)
(1913) 16 CLR 178 and the particular reference is
at page 206 where, on that page, the paragraph
numbered 6, His Honour said:
If either by proof or undisplaced presumption
confidence is required, then it is a rule of
law, not of discretion, that the documents
shall be excluded.

So that is just a further reference to that point.
So that is the second point, Your Honours.
The third point is this, that in relation to

the 12 factors that my learned friend, Mr Castan,
referred to, in our submission, however many

factors there may be, that does not tell you what the test or the standard is that is to be applied and in the particular context of this case, in our
submission, it is quite clear from page 171 of the

appeal book, and the considerations that
Mr Justice Jenkinson there refers to and his state
of satisfaction, that the relevant standard was not
reached. Further, the existence of 12 factors not
only does not say what the standard is but it
certainly does not have the result that there is
not a two-stage process, and we have given
Your Honours the authorities in relation to that.
The fourth point is that Mr Castan, I think,

submitted that it was part of our submissions that
this was a commercial matter. It was in the
context of saying that Carey was a similar case to
this case. All that we had submitted on the point
of similarity was that the documents in Carey's

case were of a similar class of document. We

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26/5/92

certainly did not submit either that Carey was a
purely commercial matter or that this case before
Your Honours is a purely commercial matter and,
indeed, Mr Justice Jenkinson, at 166 and 167 of the
appeal book, expressed the view that he did not

regard this as a commercial matter either. Of
course, in relation to Carey's case it was a
question of, as the court, I think, there described
it, a question involving the development of

Northern Ontario. So that is the fourth point.
The fifth point is that as we understood the

submissions of Mr Castan in relation to the
position of counsel in undertaking the task
designed for counsel by Mr Justice Jenkinson, as we
understood it what was envisaged was that counsel
would be permitted to make some derivative use of
the information that counsel had derived from an

inspection of the documents. And in our
respectful submission, that underlines the dangers
of the course proposed.
Then, Your Honours, sixthly, in relation to a

matter raised by Justice Toohey, in relation to
legal professional privilege in search warrant
cases, the nearest case that comes to mind is the
exercise of powers - one can call them merely the
search warrant powers - under section 263 of the
Income Tax Assessment Act and the discussion of
legal professional privilege by the Full Court of
the Federal Court in Citibank v Commissioner of
Taxation - we do not have the reference, but I think it is 20 FCR, and there, there was a
discussion as to what processes should be gone
through; and there was also reference to my
recollection in that case to guidelines that had
been derived by the Law Council of Australia in
relation to the approach that should be taken, and
guidelines both in relation to the execution of
search warrants and in relation to section 263.
But, of course, ultimately it is a question for the

court to decide whether the claim for legal
professional privilege is made out if the parties
do not agree.
Then, seventhly: Your Honour the Chief Justice

asked about whether the course of permitting
counsel, on a confidential basis, to inspect
documents for which public interest immunity being
claimed, had ever been adopted anywhere else, there
is a reference to some vaguely analogous procedure
in a decision of the United States Supreme Court, it is called Kerr, 426 US 394. The case seems to
be largely taken up with a consideration of the
peculiar nature of the writ of mandamus, but there
was some such order made that, because public
interest immunity had not been made out, the

NLC(2)

26/5/92

lawyers, plus I think two investigators, it was
said, should have access on the restricted basis to
certain information. But, of course, that was a
case where the immunity had not, as the court said,
been made out but mandamus was refused on the basis
that the matter of confidentiality could be further
pursued. So, it is only vaguely analogous to the
present matter.

MASON CJ: Is that all that your researchs for adoption of

such a procedure could turn up?

MR ROBERTSON:

That is the only instance that we found.

do not say that our researchs have been exhaustive,

but that is the only one we found thus far. Then,
Your Honours, finally, just on a point of
housekeeping; in relation to Mr Justice Hope's
reasons in the Ivanov matter, might I suggest this,
that if we were to make available to the other
parties a copy of those reasons, say by the end of the week, and then everybody might have liberty to
put whatever written submissions they might wish
within seven days thereafter, if that is a

convenient course. We do not suggest any
directions are necessary.

MASON CJ: Yes, that would be acceptable, Mr Robertson.

MR ROBERTSON: If the Court please.

MASON CJ: Thank you. Court will consider its decision in

this matter.

AT 4.17 PM THE MATTER WAS ADJOURNED SINE DIE.

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26/5/92

His Honour primarily relying on three grounds.	The
first was that the entries were entitled to an

copy of His Honour's reasons.	I have not seen it
referred to anywhere.

the course of, I hope, the day.	My copy is in
Melbourne, unfortunately.

ill-formed and captious criticism basis. Whilst we	I will call the frankness and candour basis and the
rely upon both those bases as further reasons why
the entries in the notebooks should not be
disclosed, the appellant puts the need to protect
and preserve the principle of collective responsibility and the concomitant requirement of
confidentiality as the primary basis for immunity,
and I take a moment to remind the Court what was
said by Your Honour the Chief Justice in Sankey v
Whitlam, 142 CLR 1, in the passage that starts on
page 97 and runs over to page 98. Six lines from
the bottom of page 97, Your Honour said this:

equally unpersuaded by the argument.	In the middle
of the page Your Honour said:

policy and expressed them.	The documents
indeed show that they did.	To remove

challenge to our submission difficult to meet.	It
is hard to formulate an example that is realistic
but I can certainly take Your Honours as being
realistic in earlier times.

Cabinet, that the same proposition would apply.	It
is not the fact that they are, as it were, the
official Cabinet notebooks that contain the record; it just happens to be those notebooks that are in	question in this case, and the Crossman Diaries in
the Jonathan Cape case would be an example of the
kind that Your Honour perhaps had in mind.

D:	It has always been assumed by lawyers and, I suspect, by politicians, and the Civil
Service, that Cabinet proceedings and Cabinet
papers are secret, and cannot be publicly
disclosed until they have passed into history.
It is quite clear that no court will compel
the production of Cabinet papers in the course of discovery in an action, and the
Attorney-General contends that not only will
the court refuse to compel the production of such matters, but it will go further and positively forbid the disclosure of such
papers and proceedings if publication will be
contrary to the public interest.

disclosure of the views of individual	doctrine might be prejudiced by premature
Ministers.

of individual ministers.	I have endeavoured to
develop that proposition earlier.	He said:

Minister saying, "I propose to take the following	is it not? I mean you have day by day a Cabinet
proposal to Cabinet." The day after the Cabinet
meeting, "X rolled in Cabinet." And here we have
the court solemnly intoning the notion that this is
all confidential, whilst in practice material is
not being treated that way at all. Now, is there a
question of leaving it to the good sense of Cabinet ministers to decide how much of the
confidentiality, which the courts will protect,
they will yield?

passage at pages 423 to 424.	He says in the middle
of page 421:

crystallized and questions of discovery can	arise,
but it may be that until discovery has been	given,
that the plaintiff has simply no foundation	for the
cause of action at all. Then the answer to	that
problem might lie in a different direction.	I
mean, assuming that the action is bona fide	and
discovery is given, then, as you accept by

a finite limit to the volume of the material.	As
it was in Burma Oil, for example, it turned out that only 10 documents, involving a matter of

would be likely to suffer, and the evidentiary	value and importance of the documents in the
particular litigation. But the anterior
question arises - should the court look at the
documents to assist it in answering these
questions?

joint judgment in Alister v Reg.	Your Honours at
about point 4 on page 438 said:

whether there were any discoverable documents.	It
is a very differemt case where you have got
discoverable documents.

authorities, (1984) 1 NZLR 290.	I need not go to
that case in any detail.	It was a case not

clearly. This is at pages 169 to 170.	I will not
read the passage.	It starts at Eon page 169 and
it goes on to about Bon the following page.	It is
largely a quotation from the affidavit of the

raised was a simple question of principle.	In
short, may the documents be withheld from
production simply because they are Cabinet
documents as above-described, at least where
those documents are concerned with the
formulation of government policy by the
Cabinet? If one replies to this broad

the candour argument but it is very easy to	I am prepared to attach some weight to
exaggerate its importance •.... certainly the notion has received heavy battering in the
courts.

not be followed in this Court in that respect.	It
is undoubtedly a persuasive authority against the
Commonwealth's position in this case.

permit that to happen contrary to normal procedure.	about it, if the Court would be good enough to	I am sorry that I cannot produce the document this
afternoon.

Re Grosvenor Hotel, London, (1965) Ch 1210.	The
issue in that case arose in very routine

that was held ultra vires in re Grosvenor Hotel was	repealed in England and replaced by Order 24
rule 15 in its present term, which I think we have
handed to the Court but I will read:

judicial discretion. That appears in the appeal
book pages 274 to 275.	We say that:

to Your Honours in the outline of argument.	In
paragraph D.1, the references should be not to
pages 274 to 275 but 273 to 274.

ASIO in response to the court's direction.	We
have formed the clear view that none of the
documents is relevant to the issues at the

involving public interest immunity.	I simply add
that for completeness.