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Commonwealth v Construction, Forestry, Mining and Energy Union

Commonwealth v Construction, Forestry, Mining and Energy Union

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FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Construction, Forestry, Mining & Energy Union [2000] FCA 453
EVIDENCE – public interest immunity – letter from Minister to Prime Minister seeking to raise a matter in Cabinet – whether letter reveals the deliberations of Cabinet – whether letter a Cabinet submission – whether letter a Cabinet document
APPEAL – standing to appeal from an interlocutory order requiring production of a document in respect of which public interest immunity privilege is claimed by a non-party to the substantive proceeding – Federal Court Act s 24
Federal Court Act 1977 (Cth) s 24(1)
Workplace Relations Act 1996 (Cth) s 170NC
Brouwer v Titan Corporation Ltd (1997) 73 FCR considered
Re Markham; Markham v Markham (1880) 16 Ch D 1 applied
Re Securities Insurance Co [1894] 2 Ch 410 applied
Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23 applied
Witness v Marsden [2000] NSWCA 52 distinguished
Sen v The Queen (1991) 30 FCR 173 distinguished
Shields v Official Receiver in Bankruptcy (1996) 66 FCR 171 distinguished
Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 applied
Sankey v Whitlam (1978) 142 CLR 1 applied
Alister v The Queen (1984) 154 CLR 404 applied
New South Wales v Ryan (1998) 101 LGERA 246 applied
Attorney-General v Hamilton [1993] 2 IR 250 applied
Egan v Chadwick (1999) 46 NSWLR 563 applied
New South Wales v Ryan (1998) 101 LGERA 246 applied
Commonwealth v Northern Land Council (1993) 176 CLR 604 applied
Hooker Corporation Ltd v Darling Harbour Authority (New South Wales Supreme Court, 7 May 1997, unreported) referred to
Hearne The Government of England 2^nd ed. 1986 at p.218
Cabinet Handbook 4^th ed. 1994
THE COMMONWEALTH OF AUSTRALIA v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND JONATHAN HAMBERGER (IN HIS CAPACITY AS THE EMPLOYMENT ADVOCATE)
V 605 of 1999
BLACK CJ, TAMBERLIN & SUNDBERG JJ
MELBOURNE
12 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 605 OF 1999

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE COMMONWEALTH OF AUSTRALIA
APPELLANT

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
FIRST RESPONDENT

JONATHAN HAMBERGER
(IN HIS CAPACITY AS EMPLOYMENT ADVOCATE)
SECOND RESPONDENT

JUDGE:

BLACK CJ, TAMBERLIN & SUNDBERG JJ

DATE OF ORDER:

12 APRIL 2000

WHERE MADE:

MELBOURNE

THE COURT:
1.Orders that leave be granted to the Commonwealth of Australia to appeal from the judgment of Marshall J delivered on 8 October 1999.
2.Orders that the appeal be allowed.
3.Orders that the orders made by Marshall J on 8 October 1999 be set aside.
4.Declares that the document listed in part 2 of schedule 1 of the second respondent’s list of discoverable documents dated 23 July 1999 is privileged on the basis of public interest immunity privilege and is not required to be produced.
5.Orders that the first respondent pay the costs of the appellant’s application before Marshall J and of this appeal.

Note: Settlement and entry of orders is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 453
Decision Date: 12 APRIL 2000

CaseChat Overview and Summary

The case involves the Commonwealth of Australia and the Construction, Forestry, Mining and Energy Union. The dispute centers on the confidentiality of Cabinet documents and their potential disclosure in legal proceedings. The High Court of Australia was tasked with determining whether certain Cabinet documents could be disclosed in the context of a legal case.

The primary legal issues before the court were whether the confidentiality of Cabinet documents could be breached in civil proceedings and, if so, under what circumstances. The court had to balance the strong public interest in maintaining the confidentiality of Cabinet deliberations against the public interest in the proper administration of justice, which includes access to relevant evidence.

The court held that while there are strong considerations of public policy against disclosing documents that record Cabinet deliberations, this immunity is not absolute. The court acknowledged that there are exceptional circumstances where disclosure might be warranted, but it is highly unlikely that such circumstances would apply to documents recording current or controversial Cabinet deliberations. The court emphasised that the highest degree of protection against disclosure is warranted for such documents, and only exceptionally strong considerations would justify breaching this confidentiality.

The final orders of the court were that the documents in question, which recorded Cabinet deliberations on current or controversial matters, should not be disclosed in the proceedings. The court's decision reinforces the principle that the confidentiality of Cabinet documents is of paramount importance, and any deviation from this principle must be justified by compelling reasons.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After considering earlier case law their Honours said, in relation to Cabinet confidentiality, at 615-616:“Whilst there is increasing public insistence upon the concept of open government, we do not think that it has yet been suggested that members of Cabinet would not be severely hampered in the performance of the function expected of them if they had constantly to look over their shoulders at those who would seek to criticise and publicise their participation in discussions in the Cabinet room. It is not so much a matter of encouraging candour or frankness as of ensuring that decision-making and policy development by Cabinet is uninhibited. The latter may involve the exploration of more than one controversial path even though only one may, despite differing views, prove to be sufficiently acceptable in the end to lead to a decision which all members must then accept and support.” At 616 their Honours, after referring to the distinction sometimes drawn between “class claims” and “content claims” said:“It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents. Both upon principle and authority, it is hardly contestable that documents recording the deliberations of Cabinet fall within a class of documents in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents. … [T]he immunity from disclosure of documents falling within such a class is not absolute. The claim of public interest immunity must nevertheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence.” (Emphasis added) At 617-618 their Honours said in relation to disclosure of documents which came within the class given the highest degree of privilege: “Documents recording Cabinet deliberations upon current or controversial matters, such as the records in question in this case, are an example. Obviously, there are extremely strong considerations of public policy weighing against their production regardless of how significant disclosure of their contents might be to the case of one side or the other in the proceedings in which the claim for immunity is raised. … However … the immunity which membership of the class confers is not absolute and that is so even if, as in the case of records of Cabinet deliberations, the highest degree of protection against disclosure is warranted. … In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. …Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings.” (Emphasis added)The present case

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 605 OF 1999

BETWEEN:	THE COMMONWEALTH OF AUSTRALIA APPELLANT
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION FIRST RESPONDENT JONATHAN HAMBERGER (IN HIS CAPACITY AS EMPLOYMENT ADVOCATE) SECOND RESPONDENT
JUDGE:	BLACK CJ, TAMBERLIN & SUNDBERG JJ
DATE OF ORDER:	12 APRIL 2000
WHERE MADE:	MELBOURNE