Commonwealth v Northern Land Council

Re: COMMONWEALTH OF AUSTRALIA
And: NORTHERN LAND COUNCIL and ENERGY RESOURCES OF AUSTRALIA LIMITED
No. V G285 of 1990
FED No. 537
Aborigines - Constitutional Law - Discovery
30 FCR 1/103 ALR 267

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Gummow(1) and French(1) JJ.

CATCHWORDS

Aborigines - land rights - Aboriginal Land Rights (Northern Territory) Act - Land Councils - agreement between Land Council and Commonwealth - Ranger Uranium Agreement - allegations of unconscionable conduct and breach of fiduciary duty by Commonwealth in formation of agreement - discovery of Cabinet notebooks - reference to discussions concerning negotiation of agreement - criteria for inspection and production - restricted disclosure.

Constitutional Law - responsible government - Cabinet Government - secrecy - origins and rationale - relationship to Executive Council - secrecy of advice to representatives of Crown - conventions - nature of - collective responsibility - history and practice - associated convention of confidentiality of Cabinet proceedings.

Discovery - public interest immunity - Cabinet notebooks - records of Cabinet discussions - whether absolutely protected from disclosure - class based immunity claims generally - balancing of public interests against disclosure and in administration of justice - criteria for entering upon balancing exercise - judicial inspection - disclosure restricted to legal advisers - Federal Court Rules - effect on approach to discovery, inspection and production.

Aboriginal Land Rights (Northern Territory Act) 1976

Atomic Energy Act 1953 s.41

Atomic Energy Amendment Act (No. 2) 1980 s.5

Archives Act 1983

Judiciary Act 1903 s.64

Common Law Procedure Act 1899 (NSW)

Federal Court of Australia Act 1976 s.23, s.59

Federal Court Rules O.15

O. Hood Phillips - Constitutional and Administrative Law 7th Edition (1987)

W.A. Matheson - The Prime Minister and the Cabinet (1977)

Bagehot - The English Constitution

P.G. Walker - The Cabinet (1970)

Mackintosh - The British Cabinet (1968)

Munro - Laws and Conventions Distinguished (1975) 1 LQR 218

Re: Resolution to Amend the Constitution (1981) 1 SCR 753

M. Codd - Cabinet Operations of the Australian Government in Galligan Nethercote and Walsh eds - Decision Making in Australian Government: The Cabinet and Budget Processes ANU (1990)

L.S. Amery - The Nature of British Parliamentary Government in Parliament - A Survey

E. Campbell - Ministerial Privileges (1959) 1 Tas Univ Law Rev 263

Quick and Garran - Annotated Constitution of the Australian Commonwealth

L.J.M. Cooray - Conventions, The Australian Constitution and the Future (1979)

Hogg - Judicial Review of Action by the Crown Representative 43 ALJ 215

Hogg - Liability of the Crown (1989)

Pearce - Of Ministers, Referees and Informers - Evidence Inadmissible in the Public Interest (1980) 54 ALJ 127

Northern Land Council v Commonwealth (1986) 64 ALR 222

Northern Land Council v Commonwealth (1987) 75 ALR 210

Northern Land Council v Commonwealth (1986) 161 CLR 1

Whitlam v Australian Consolidated Press Limited (1985) 73 FLR 414

Sankey v Whitlam (1978) 142 CLR 1

Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60

Robinson v South Australia (No. 2) (1931) AC 704

Blomley v Ryan (1956) 99 CLR 362

Attorney-General v Jonathan Cape Ltd (1976) 1 QB 752

R. v Davenport (1874) 4 SCR (Qld) 99

R. v Tooth (1874) SCR (Qld) 96

Davenport v R. (1877) 3 App Cas 115

New South Wales v Bardolph (1934) 52 CLR 455

Toy v Musgrove (1888) 14 VLR 349

Attorney-General v Williams (1913) 13 SR(NSW) 295

FAI Insurances Ltd v Winneke (1982) 151 CLR 342

Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414

Australian Communist Party v The Commonwealth (1951) 83 CLR 1

Minister for Arts Heritage and Environment v Peko Wallsend Ltd (1987) 75 ALR 218

R. v Turnbull (1958) Tas SR 80

Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39

Attorney General v Newcastle-Upon-Tyne Corporation (1897) 2 QB 384

Thomas v R. (1874) LR 10 QB 44

In Re La Societe Affreteurs Reunis and The Shipping Controller (1921) 3 KB 1

Deare v Attorney General (1835) 1 Y. and C. 197

Duncan v Cammell Laird and Co. Ltd (1942) AC 624

Crombie v R (1923) 2 DLR 542

The Commonwealth v Miller (1910) 10 CLR 742

Marconi's Wireless Telegraph Co. Ltd v The Commonwealth (1913) 16 CLR 178

The Commonwealth v Baume (1905) 2 CLR 405

Heimann v The Commonwealth (1935) 54 CLR 126

The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55

Burmah Oil Co. Ltd v Bank of England (1980) AC 1090

Mulley v Manifold (1959) 103 CLR 341

Temmler v Knoll Laboratories (Australia) Pty Ltd (1969) 43 ALJR 363

Beecham Group Ltd v Bristol Myers Co. (1979) VR 273

Wellcome Foundation Ltd v V.R. Laboratories (Australia) Pty Ltd (1980) 42 FLR 266

Garden City Traders Association Ltd v Brisbane City Council (1972) Qd R 82

Beatson v Skene (1860) 5 H and N 838

O'Flaherty v McBride (1920) 28 CLR 283

Griffin v State of South Australia (1925) 36 CLR 378

Corbett v Social Security Commission (1962) NZLR 878

Bruce v Waldron (1963) VR 1

Conway v Rimmer (1968) AC 910

Glasgow Corporation v Central Land Board (1956) SC (HL) 1

Krew v Commissioner of Taxation (1971) 45 ALJR 249

Lanyon Pty Ltd v The Commonwealth (1974) 129 CLR 650

R. v Lewes Justices; Ex parte Home Secretary (1973) AC 388

Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582

Prineas v Forestry Commission of NSW (1984) 53 LGRA 160

Alister v R. (1984) 154 CLR 404

Air Canada v Secretary of State for Trade (1983) AC 394

Haj-Ismail v Madigan (1982) 45 ALR 379

Kanthal Australia Pty Ltd v Minister for Industry Technology and Commerce (1987) 71 ALR 109

Hooker Corporation Ltd v Darling Harbour Authority (unrep. Sup.Ct. NSW 7/5/87)

Koowarta v Bjelke-Petersen (1988) 92 FLR 104

Fletcher Timber Limited v Attorney General (1984) 1 NZLR 290

Carey v The Queen in Right of Ontario (1985) 35 DLR (4th) 161

Re Carey and the Queen (1983) 43 OR (2d) 161

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

HEARING

MELBOURNE

#DATE 3:9:1991

Counsel for the Applicant: Mr R.W. Blowes

Solicitors for the Applicant: Borchers and Fitzgerald

Counsel for the First Respondent: Mr D. Graham QC and Mr A. Robertson

Solicitors for the First Respondent: Australian Government Solicitor

Second Respondent not represented at hearing.

ORDER

The appeal is dismissed.

The appellant to pay the first respondent's costs of the appeal.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 9 November 1978 the Northern Land Council and the Commonwealth executed an agreement under s.44(2) of the Aboriginal Land Rights (Northern Territory) Act in relation to mining for uranium on the Ranger Project Area in the Northern Territory. In these proceedings the Council seeks, among other things, an order for the rescission of the agreement claiming that it was made under duress and as the result of breaches of fiduciary duties owed to it by the Commonwealth. On 18 September 1990, Jenkinson J. made an order for the confidential inspection by counsel and solicitors for the parties, of 126 notebooks recording discussions at Cabinet meetings held during the period of pre-contractual negotiations. This appeal by the Commonwealth against that order raises important questions of public interest immunity and the conventions of collective responsibility and confidentiality attaching to Cabinet proceedings.

The Background to the Dispute

In 1976 the Aboriginal Land Rights (Northern Territory) Act was passed for the purpose, stated in its preamble of, "providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of aborigines and for other purposes". It set up a mechanism for the vesting, in bodies corporate called "Aboriginal Land Trusts", of title to land traditionally used or occupied by aboriginal groups (s.4). Each of the Trusts was created by ministerial notice and subjected to the control of one of a number of Aboriginal Land Councils brought into existence by a similar process. The Act required the Minister to divide the Northern Territory into at least two areas and to establish an Aboriginal Land Council for each (s.21). Each Council is a body corporate with the usual incidents of legal personality and the membership of which is drawn from aboriginals living in its area (s.22). The enumerated functions of the Councils include:

1. To negotiate on behalf of the traditional Aboriginal owners of land in the area held by a Land Trust and any other Aboriginals interested in the land, with persons desiring to use, occupy or obtain an interest in that land.

2. To supervise, and provide administrative assistance for, Land Trusts holding, or established to hold, Aboriginal land in its area.

The grant of mining interests and the authorisation of mining operations in respect of land vested in Land Trusts is regulated by ss.40 and 41 of the Act. Sub-section 40(1) provides:

"40(1) A mining interest in respect of Aboriginal Land shall not be granted unless -

(a) both the Minister and the Land Council for the area in which the land is situated have consented, in writing, to the making of the grant; or

(b) the Governor-General has, by Proclamation, declared that the national interest requires that the grant be made."

That protection is not applicable to the uranium bearing land described in the Second Schedule to the Act and known as the Ranger Project Area (s.40(6)). Sub-section 41(1) excludes the application to aboriginal land of the Atomic Energy Act 1953 or any Act which could otherwise authorise the entry of persons onto such land. But that exclusion is subject to Land Council consent or a national interest proclamation and, like sub-s.40(1), is inapplicable to the Ranger Project Area (sub- (sub-s.41(2)). That is not to say that the Atomic Energy Act or other legislation applies without qualification to aboriginal land within the Ranger Project Area. Sub-section 44(2) sets up a mechanism under which an agreement must be made between the relevant Land Council and the Commonwealth where it is proposed to authorise entry upon the land under any such statute. The sub-section provides:

"Where, by virtue of sub-section 41(2) or a

Proclamation under paragraph 41(1)(b), the Atomic Energy Act 1953 or any other Act authorizing mining for minerals applies, in the manner referred to in section 41, in respect of any Aboriginal land without the consent of the Land Council for the area in which the land is situated, that Act shall not be taken to authorize the entry or remaining of a person on that land or the doing of any act by a person on that land unless the Commonwealth has entered into an agreement under seal with the Land Council for the payment to the Land Council by the Commonwealth of an amount or amounts specified in, or calculated in accordance with, the agreement and the acceptance by the Commonwealth of such other terms and conditions as are provided for in the agreement."

In the absence of an agreement under sub-s.44(2) the Minister may refer the matter under sub-s.45(1) to an arbitrator who is empowered to fix terms and conditions for an agreement that will bind the Land Council (sub-ss.46(2) and (3)).

The Northern Land Council is an Aboriginal Land Council. On 6 September 1978 certain land falling within its area and also within the Ranger Project Area was vested in the Kakadu Land Trust created under the Act on 21 July 1978 ("the Ranger Land"). On 3 November 1978 the Council and the Commonwealth executed an agreement in relation to the Ranger Land under sub-s.44(2) of the Act. By that agreement the Commonwealth was bound to make certain payments to the Council and accepted various other terms and conditions some of which related to environmental control and rehabilitation of mine pits. On 9 January 1979 the Commonwealth, Peko-Wallsend Operations Ltd ("Peko-Wallsend"), Electrolytic Zinc Company of Australia ("Electrolytic Zinc") and the Australian Atomic Energy Commission entered into a written agreement for the mining of uranium on the Ranger Land. On the same day, the Hon. Douglas Anthony, then Minister of State for Trade and Resources, granted Peko-Wallsend and Electrolytic Zinc an authority to mine the Ranger uranium deposits on behalf of the Commonwealth pursuant to s.41 of the Atomic Energy Act 1953. On 12 September 1980, Peko-Wallsend, Electrolytic Zinc and the Australian Atomic Energy Commission assigned their interests in the agreement and the s.41 authority to Energy Resources of Australia Limited. That company has mined the Ranger uranium deposits since that date.
By this action, commenced by writ in the High Court on 7 November 1985, the Council sues the Commonwealth and Energy Resources Australia Limited, seeking orders rescinding the agreement, declaring it to be void or to have been avoided, and declarations that s.5 of the Atomic Energy Amendment Act (No.2) 1980 is beyond the legislative power of the Commonwealth, that Energy Resources Australia Limited is not authorised to enter upon the land and that it is not carrying on the Ranger Project on behalf of the Commonwealth under s.41 of the Atomic Energy Act. Associated injunctive relief is claimed and orders sought for the Commonwealth to account to the Council for profits derived from the Ranger Project, for payment of such sums as are found to be due to the Council on the taking of such accounts and for damages. The amended statement of claim is not a model of clarity and displays a confusion between the identity of "the Commonwealth" as Crown in right of the Commonwealth and that of the legislature designated by s.1 of the Constitution as the "Parliament of the Commonwealth" of which the Crown is but one constituent. In substance it alleges that the Commonwealth was "in a fiduciary relationship" with the Council and thereby under various duties which were breached, in connection with the negotiation and formation of the s.44 agreement. In particular, it is alleged that the Commonwealth failed to supply to the Council information in its possession relating to the project, allowed the Council to enter into an agreement which was "inadequate, unreasonable and unfair", engaged in "self dealing whilst acting in a fiduciary capacity", agreed to assign its interest and the interest of the Australian Atomic Energy Commission to Energy Resources Australia Limited on 12 September 1980 and otherwise derived profits and benefits from the project. Various statements, including threats allegedly made by the then Prime Minister, the Minister for Aboriginal Affairs and Commonwealth officers prior to the execution of the agreement, were also said to have been in breach of the fiduciary duties pleaded (para.37). On the basis of the alleged breaches it is contended that the agreement is void and alternatively that it has been avoided by the Northern Land Council and that the Council and the aborigines entitled to the benefit of mining operations carried on on the Ranger Land have suffered loss and damage in the order of $200 million.
It is said that the agreement was executed as the result of duress by the Commonwealth (para.40). This plea is based upon the allegations pleaded in paras. 21 to 37 of various threats made by representatives of the Commonwealth to repeal the land rights legislation or to overcome the need for agreement either by proclaiming that mining on the land was in the national interest under s.41(1) or by invoking the arbitration provisions of the Act. And in the latter case there was allegedly a threat to withhold funding from the Council to finance its representation in such arbitration. A special relationship of influence is said to have existed between the Commonwealth and the Council by reason of the Commonwealth's "power to legislate in respect of aborigines", the repeated exercise of that power evidenced by the passage of a number of statutes, the authority vested in the Minister by those statutes and the establishment of a Department of Aboriginal Affairs. It is at this point that the pleader's confusion between the executive and the legislature is most acute. Also invoked in support of the special relationship of influence is "the assumption by the Commonwealth of responsibility for the Australian Aborigines" and public statements by responsible Ministers and officers of the Crown to the effect that the Commonwealth regards itself as having, and discharges, special obligations in respect of the general welfare, housing, health, education, advancement and future of Australian aborigines. On these facts and those relied upon in support of the duress claim, it is said that the agreement was entered into as a result of undue influence.
The Council also says it was at a disadvantage in negotiating with the Commonwealth by reason of the inexperience of its members in commercial matters and in the negotiation of the terms and conditions of an agreement relating to uranium mining, its dependence upon the Commonwealth for finance and the Commonwealth's possession of information not available to it. The bargaining position of the Commonwealth by reason of its resources, experience, knowledge and position as a government and joint venturer was said to be greatly superior to that of the Council. And the members of the Council by reason of linguistic, cultural, social, racial and educational differences from the general community were allegedly, to the knowledge of the Commonwealth, its servants or agents, likely to be influenced by what those servants or agents said or did (para.27). The existence of this disadvantage was known by the Commonwealth which is alleged to have acted unconscionably in causing or permitting the Council to enter into the s.44 agreement and in connection with the negotiation and formation of that agreement (para.42).
The History of the Proceedings
The history of this action since its inception has been long and complicated. Only the salient features are referred to here by way of background to the present appeal.
Upon the filing of the original statement of claim, the Commonwealth filed a motion to strike it out in whole or in respect of specified paragraphs and demurred to those parts alleging or depending upon the allegation that s.5 of the Atomic Energy Amendment Act (No.2) 1980 is invalid. For reasons reported in Northern Land Council v Commonwealth (1986) 64 ALR 222, Gibbs C.J. decided on 25 March 1986 to refer to a Full Court of the High Court as a case stated the question of the validity of s.5 and whether it authorised Energy Resources Australia to carry on operations on the Ranger Land even if there were no relevant valid and enforceable agreement under s.44(2) of the Aboriginal Land Rights (Northern Territory) Act 1976. The strike out motion was adjourned to a date to be fixed. On 30 April 1986, the High Court held on the stated case that s.5 was a valid law, that s.5 would not authorise Energy Resources Australia to carry on operations in the Ranger Project Area if the s.44 agreement were found to be void, but it would authorise such operations if the agreement were voidable - Northern Land Council v Commonwealth (1986) 161 CLR 1. On 12 May 1986 Gibbs C.J. directed that another case be stated to the Full Court of the High Court. Following amendments to the pleadings and to the stated case and a hearing on 6-8 October 1987, the High Court decided on 21 October 1987 that it was not possible to resolve finally in advance of a trial the questions of law presented by the amended stated case. It was ordered that the matter be remitted to such other court and upon such terms as might be determined by a Justice - Northern Land Council v Commonwealth (1987) 75 ALR 210. A consent signed by all parties to an order remitting the proceedings to the Federal Court in the Melbourne Registry was filed in the High Court and an order made accordingly on 9 November 1987. The proceedings were thereby remitted and a directions hearing fixed for 11 December in Melbourne.

On 11 December 1987, Woodward J. gave various directions including an order that the parties give discovery limited to certain issues on or before 29 April 1988. On 12 July 1988, the Commonwealth filed its list of discovered documents. The list itself was extensive comprising some 17 bundles. The Council gave discovery on 20 July and Energy Resources Australia on 23 August. Following orders and adjournments, which are not material for present purposes, an order was made on 29 March 1989 which included directions for inspection of discovered documents by 31 May and the filing of an affidavit in support of public interest immunity claims advanced by the Commonwealth in relation to certain of the discovered documents. On 19 July orders were made by consent providing, inter alia, for inspection on a restricted basis of documents discovered by the Commonwealth for which public interest immunity had been claimed. The right of inspection was limited to counsel and solicitors for the Council and Energy Resources Australia. On 10 January and 14 February the Council filed motions seeking orders for production of certain other documents. It is the second of these which has led to this appeal.
On 19 February 1990, orders were made relating to inspection and further discovery and leave given to the Council to again amend its statement of claim. And on the following day further orders were made including an order for the hearing of the applicant's motion for production on 19 April 1990. On 20 April various consent orders were made for limited inspection of further documents for which public interest immunity had been claimed. A variation to that order was made on 7 May. The hearing of the Council's motion in relation to the inspection of documents for which restricted inspection was not conceded proceeded on 19 and 20 April and 7 and 18 May 1990. A more detailed account of the orders made, the material before his Honour and the way in which he approached the decision that led to this appeal follows.
Discovery of Cabinet Notebooks - The Motion for Production
On 1 November 1989 the solicitor for the Northern Land Council had sent to the Australian Government Solicitor notices seeking further discovery by the Commonwealth of documents relating to the Department of Prime Minister and the Cabinet and the Department of Primary Industry and Energy. Each notice contained, inter alia, a request in the following terms:

"3. It is noted that generally speaking there are no documents which relate to or record proceedings in cabinet other than departmental minutes to the minister, cabinet submissions and minutes of cabinet decisions. No documents have been discovered which record even the dates of meetings, the names of Ministers and officials present at Cabinet or Cabinet Committee meetings, or the names of the members of Cabinet or of the Cabinet Committees in respect of which documents have been discovered. No agenda, transcripts or other minutes have been discovered. It is understood that regularly, or at least commonly, shorthand or other notes are made of cabinet meetings by a cabinet official and/or departmental officers.

A search for and discovery of any such documents in the possession of this department and a statement as to whether any other documents not so discovered were ever in the possession of this department (and if so, listing them and giving particulars of the

circumstances in which they left such possession and of their present whereabouts), is requested."

Further lists of documents were provided in answer to the notices. By a letter dated 19 January 1990, the Australian Government Solicitor gave the solicitor for the Land Council what it described as "the balance of Commonwealth answers to your requests of 1 November 1989". Among the documents so discovered were some for which public interest immunity was claimed, but which immunity the Commonwealth was prepared to waive to the extent of permitting inspection restricted to the Council's solicitors on the same terms as those set out in the order of 19 July 1989. There were other documents in the list however, which were designated "PII*" and for which a public interest immunity from inspection was claimed and no waiver offered. In this category there were some 113 books identified as Cabinet notebooks and 13 other books in which notes had been made of discussions in Cabinet and committees of Cabinet by two officers of the Department of Trade and Resources. The Commonwealth's claim for immunity from inspection in respect of these documents was based on the need to maintain confidentiality of Cabinet discussions and to support the principle of the collective responsibility of Cabinet ministers.

On 14 February 1990 the Council's motion was filed. It sought orders that the Commonwealth produce for inspection various documents discovered in response to the notices of 1 November 1989 and in respect of which the Commonwealth had asserted, and not offered to waive, public interest. Among these documents were the 126 Cabinet notebooks. A solicitor acting for the applicant, Brett Ian Midena, swore an affidavit in support of the motion. The principal affidavit in opposition was that of Anthea Tinney, Acting Director of the Cabinet Office in the Department of the Prime Minister and Cabinet. She explained the procedures established for the taking of notes of discussions held during meetings of Cabinet and Cabinet committees and expressed certain opinions in relation to the public interest connected with the preservation of the principle of collective responsibility and the confidentiality of Cabinet discussions. Her evidence was supported by a further short affidavit sworn by Michael Henry Codd, Secretary to the Cabinet and Secretary of the Department of the Prime Minister and Cabinet.
On 6 August 1990 Jenkinson J., who heard the motion, published reasons for judgment in which he foreshadowed that he would make an order in terms of the motion. On 18 September 1990 his Honour made an order which, in the parts relevant to the present appeal, was as follows:

1. The firstnamed respondent produce for inspection on behalf of the applicant all entries in the 113 Cabinet notebooks and 13 other notebooks referred to in the affidavit of Anthea Tinney sworn 12 April 1990 concerning events which occurred before the agreement made between the firstnamed respondent and the applicant on 3 November 1978 and which relate to the said agreement or to negotiation for it (to which said entries references hereinafter made as "the documents").

2. Until further order and subject to paragraph 3 of this order, inspection on behalf of the applicant of the documents be had only by a person who is named in the First Schedule to this order.

3. A person (hereinafter referred to as a "person to whom paragraph 3 applies") named in the First Schedule to this order have no access to the documents until he has first executed an undertaking in the form set out in the Second Schedule to this order and that undertaking has been filed in the Registry of this Court and a copy has been served on the firstnamed respondent's solicitor.

4. Until further order no person to whom paragraph 3 applies disclose to any person other than a person to whom paragraph 3 applies any part of the content of the documents or any information which he has derived from any part of the documents or make a copy or record of the documents or any part thereof.

5. Each person to whom paragraph 3 applies not use any part of the content of the documents or any information which he has derived from the contents for a purpose other than the conduct of the proceeding.

6. Each person to whom paragraph 3 applies use reasonable care to keep safe and inaccessible to persons other than another person to whom paragraph 3 applies the documents and any copy or part thereof in his possession or custody.

7. The firstnamed respondent make and deliver upon payment of the reasonable cost of copying a single copy of any of the documents or any part thereof to a person to whom paragraph 3 applies who, in writing signed by that person or by another person to whom paragraph 3 applies on his behalf, has requested the firstnamed respondent's solicitor to furnish him with a copy of that document or that part thereof and who has not been furnished by the firstnamed respondent's solicitor with a copy of that document or that part respectively.

8. No person to whom a copy of a document or part thereof is furnished pursuant to paragraph 7 of this order make a copy of any such document or part thereof.

9. Each copy delivered in compliance with a request in writing made in pursuance of paragraph 7 of this order be returned by the person who made the request to the firstnamed respondent's solicitor within ten days after the date which may hereafter be specified by further order.

10. Upon the filing in the proceeding of a document signed by the solicitors for the applicant and the firstnamed respondent stating their agreement that this order shall operate from the day following the day on which that document is filed as if there were included in the First Schedule to this order the name of a person specified in that document this order operate on and after the day following the day on which that document is filed as if the name of that specified person were included in the First Schedule.

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12(a) The applicant's costs of the motion of which notice is contained in paragraph (1) of the applicant's notice of motion dated 14 February 1990 be paid by the first respondent. .

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13. Each party be at liberty to apply.

14. The execution of the orders contained in paragraphs 1 to 10 inclusive and paragraph 12(a) hereof be stayed until further order.

Evidence Before the Primary Judge

In his affidavit, the Northern Land Council solicitor, Midena, referred to a number of matters which, from an inspection of documents already produced on a restricted basis, were said to be the subject of decisions at Cabinet meetings held on dates that corresponded to the dates of the Cabinet notebooks. These matters concerned dealings between the Commonwealth and the Northern Land Council and related to negotiations and their co-ordination, the appointment and briefing of a negotiator for the Commonwealth, options for the early conclusion of an agreement and the stability of any such agreement, royalties and payments, aboriginal equity in the Ranger Project, environmental requirements and access. There was also reference to a visit by the Minister for Aboriginal Affairs to Darwin in September 1978. Although not expressly stated in the affidavit, it was clear that these matters were identified to support the proposition that there was or could be material in the notebooks relevant to the issues in the litigation.
In her affidavit of 12 April 1990, in opposition to the motion, Anthea Tinney, who was the Acting Director of the Cabinet Office in the Department of the Prime Minister and Cabinet, explained the functions of the Cabinet Office, the system for taking notes of Cabinet and Cabinet committee meetings and what she regarded as the undesirable effects of disclosure of such notes. She exhibited a document issued by her office and entitled "Guide for Cabinet Notetakers" and a document entitled "Cabinet Handbook" which, it was said, described "the principle of collective responsibility and cabinet confidentiality". The procedure for taking notes of Cabinet and Cabinet committee meetings, as explained by Ms Tinney, involves the attendance at the meetings of three notetakers. They are usually senior public servants, the No.1 notetaker being the Secretary of the Department of the Prime Minister and Cabinet and Secretary to the Cabinet. The Director of the Cabinet Office often attends the meetings in the No. 2 or No. 3 position. At committee meetings, the senior notetaker is usually either a Deputy Secretary of the Department or the Director of the Cabinet Office. The No.3 notetaker makes concurrent notes of the meeting in his or her notebook which, the Court was informed from the bar table, comprises 100 leaves of A4 paper. The sole purpose of the notes, according to Ms Tinney, is to enable subsequent preparation of Cabinet Minutes to "record the outcome of matters considered at the meeting". The notes are intended to be an aide memoire for use by the notetakers who may record the discussions "in any way they wish". They are not necessarily a source of information on ministerial attendances or the names of notetakers or other officials present. They are not intended to be an authoritative record of Cabinet decisions. The only official records are the Cabinet records. The notebooks, whether taken together or singly, do not contain a verbatim transcript. What one Minister said may be noted, but the remarks of another may not.
Ms Tinney's evidence in this regard should be seen in the context of the Guide to Cabinet Notetakers. According to the Guide, the No.1 notetaker oversees the recording process and may leave the Cabinet room from time to time to pursue information related to the discussions. The No.2 notetaker is responsible for the smooth running of the meeting, ensuring that co-opted Ministers are available as their items come up, that notetakers are alternated as required and that necessary documents are circulated. Given these other functions, the No. 2 notetaker "should take as reasonably detailed a record of the meeting as he or she can". The No. 3 notetaker is to take "the fullest possible record of the meeting, although this does not require a verbatim record". But the notetaker, it is said, cannot always be sure that a particular point will not become significant when writing a minute. Consistently with the object of taking "the fullest, possible record", the No. 3 notetaker is not to be disturbed while note-taking and should not leave the room unless relieved by a fresh notetaker. There is special provision in the Guide for a full record to be taken in the notes of any conflict of interest declared by any Minister, and any request by a Minister for his or her dissent from any decision to be recorded. It is the No.3 notetaker's function to prepare a first draft of any Cabinet Minute to which his or her notes relate. The draft is passed to the No. 1 and 2 notetakers and is settled between all three. Completed notebooks are retained by the Cabinet Office and treated as confidential. None of this procedural evidence was in dispute and it appears to have been accepted by his Honour. Also before his Honour, although not evidently tendered as an exhibit, was a file of Cabinet and Cabinet committee Minutes which had been discovered and inspected under the restrictions imposed by the order of 19 July 1989. On the hearing of the appeal the Court received this bundle as a confidential exhibit so that it might have formally before it all the material before the Court below.
Ms Tinney in her affidavit expressed certain opinions about the existence and advantages of conventions of confidentiality and collective responsibility attached to the deliberative and decision-making processes of the Cabinet. The convention of confidentiality, in her opinion, "recognises that it is necessary that there be a forum in which full and frank discussion by Ministers can take place, uninhibited by the need to temper debate to meet sectional interests or media pressures, and in which individual opinions can be expressed freely among colleagues and without public comment or exposure". If this were not so, the efficiency of the policy-making process would be significantly impaired. She described the principle of collective responsibility as a complementary convention of Cabinet government by which decisions, once arrived at in the Cabinet, are supported by all Ministers whatever their personal views. This is a long standing and integral part of the Australian system of government. To ensure effective and efficient government it is necessary that there be finality of decision-making and that decisions once arrived at and announced, should be clear and supported by all Ministers. The convention also ensures "that government is properly accountable and responsible as a whole to the Parliament and through it to the people". She adopted the views of the Radcliffe Committee that a system of collective responsibility could not survive in practical terms unless the members of a government are "prepared to observe the confidentiality of all that has gone on in the course of their deliberations". And by way of further support for the practice of confidentiality she referred to the findings of the Franks Committee, that governmental representatives in France, Sweden, Canada and the United States of America, share the view 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. As a measure of the importance that Australian federal governments have attached to the confidentiality of Cabinet discussions she referred to the practice that the Cabinet documents of one government are not made available to members of previous or later governments of a different political persuasion. And access to the notebooks is even more limited. She concluded by pointing out that the notebook entries in issue are concerned with questions of the mining of uranium in Australia generally, the mining of uranium at Ranger, and on aboriginal land in particular, and in proximity to national parks. "These questions" she said, "are still matters of current political debate".
Also exhibited to Ms Tinney's affidavit was an extract from the Cabinet Handbook described in a Foreword signed by the present Prime Minister, as laying down "the procedure by which the Cabinet system works". Under the heading "Collective Responsibility" the Guide says, at para.2.1:

"The convention of the collective responsibility of Ministers for Government decisions is central to the Cabinet system of government. Cabinet Minutes reflect collective conclusions and are binding on Cabinet Ministers as Government policy both outside the Party and within."

And at 2.3:

"All Ministers are expected to give their support in public debate to decisions of the Government; non-Cabinet Ministers, however, are not prevented from debating in Caucus decisions in areas apart from their portfolios."

On the topic of confidentiality at 2.11:

"Collective responsibility is supported by the strict confidentiality attaching to Cabinet documents and to discussions in the Cabinet Room. Ministry, Cabinet and Cabinet committees are forums in which Ministers, while working towards a collective position, are able to discuss proposals and a variety of options and views with complete freedom. The openness and frankness of discussions in the Cabinet Room are protected by the strict observance of this confidentiality."

At para.12 of her affidavit, which was objected to during the hearing, Ms Tinney spoke of the likely consequences of disclosure of the notebook entries:

"In my view disclosure of those entries in this proceeding would harm the public interest in that disclosure would undermine the principle of collective responsibility referred to in paragraph 14 below. Disclosure would also harm the public interest for the reason that disclosure could create or contribute to ill-formed or captious public or political criticism on the basis of incomplete information on a matter of current political debate referred to in paragraph 17 below."

Mr M.H. Codd has been Secretary to the Cabinet since 1986. In his affidavit he shortly agreed with Ms Tinney's description of the procedures under which Cabinet notes are taken, the role of the notetakers and the use to which Cabinet notebooks are put. He also said he held the same views as expressed by Ms Tinney in relation to Cabinet confidentiality and collective responsibility, and specifically agreed with what was stated in para.12 and her views about the currency of the political debate on topics covered by the entries.

The Primary Judge's Reasons for Decision

The judgment of Jenkinson J. is reported at (1990) 24 FCR 576. His Honour began his reasons for judgment by reviewing the salient features of the amended statement of claim and noting that minutes of proceedings in the Cabinet which relate to matters in issue in the proceedings had been discovered and produced for inspection under orders restricting the copying and disclosure of their contents. He referred then to the 126 Cabinet notebooks observing that there would be no question of granting inspection of any entries in them except those relating to the subject matter of the proceedings. He expressly accepted the procedural evidence, that Cabinet and Cabinet committees are attended by three senior officers of the Australian Public Service who take notes of the proceedings for the sole purpose of enabling them to record "the outcomes reached" at the meeting. He also accepted Ms Tinney's description of the purpose and nature of the notes and the restrictions on access to them. He observed that the notebooks are excluded from the definition of "Commonwealth record" in the Archives Act 1983 and were therefore not subject to the provisions of that Act regulating dealings with, and access to, Commonwealth records.
In dealing with para.12 of Ms. Tinney's affidavit, his Honour proceeded on the assumption that it was not based on the content of any of the notebook entries. He considered Ms Tinney's seniority insufficient to justify him in taking account of that opinion as expressed by her, but was prepared to take it into account as adopted by Mr Codd in his affidavit. After referring to a number of decided cases on the question of public interest immunity, he identified as emerging from them the proposition that if the proceedings of the Executive Government or a topic to which those proceedings relate are no longer current when inspection is sought, the risk of injury to the government process by the disclosure of deliberations is diminished. The relative importance of the topic and the extent to which it relates to traditionally governmental or merely commercial activities were also relevant. His Honour referred to Whitlam v Australian Consolidated Press Limited (1985) 73 FLR 414; Sankey v Whitlam (1978) 142 CLR 1; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 and Robinson v South Australia (No. 2) (1931) AC 704. Turning from principle to the facts of this case, his Honour observed that at least four members of the Cabinet during the period covered by the notebooks were still members of the Parliament, and that a number of the relevant topics dealt with by the notebooks are still topics of public controversy greatly exercising the principal political parties in this country. Although commercial considerations might have played a part in the formation of the impugned agreement, he did not take those considerations to be predominant. International and domestic political considerations must have been of at least equal weight.
Reference was then made to considerations on the other side of the balance, springing from the general concern that justice should not be impeded by denial of access to relevant material as well as factors peculiar to the particular proceedings. And given that the proceedings related to the allegedly wrong and unconscionable conduct of high officers of State, the considerations against impeding the course of justice by denying access to relevant material were regarded by his Honour as "strong". He did not accept that there was no likelihood that the notebook entries were of any relevance to any issue in the proceedings. He referred to the pleaded allegations of inadequacy, unreasonableness and unfairness in relation to the s.44 agreement and of unconscionable conduct on the part of the Commonwealth. Blomley v Ryan (1956) 99 CLR 362 and other authorities indicated that if it were shown prima facie that unfair advantage were taken of one party by another in a position of advantage, the burden of proving that the transaction was fair was cast upon the party in the superior position. Judgments of the fairness of the s.44 agreement would depend upon a critical examination of many complex questions. It would be open to the Commonwealth, even if the agreement were found to be unfair, to show that the views of its Ministers at the relevant times were so honestly and reasonably held that it was consistent with equity and good conscience that the agreement should stand. Records of Cabinet deliberations relating to the negotiation of the agreement were, in his Honour's opinion, "likely to disclose" information relevant to the fairness and honesty of the consideration undertaken by the persons who controlled the actions of the Commonwealth. He accepted nevertheless that the information in the notebooks and inferences to be drawn therefrom might be insubstantial. On the other hand, in conjunction with other material available to the Council, they might afford much more substantial assistance than if considered alone. The following passage lies at the heart of his Honour's decision:

"The probability is in my opinion strong that the entries in the notebooks relating to deliberations about the negotiation and the making of the impugned agreement will afford information by means of which the case of the applicant for rescission of the agreement as unconscientious may be advanced or the case of the Commonwealth against the grant of that remedy may be damaged. There is accordingly a public interest in favour of granting inspection of those entries as well as a public interest in favour of denying inspection. In my opinion the balance is clearly in favour of granting inspection to the legal representatives of the applicant, upon their undertaking not without the leave of the Court to disclose to others what they learn by inspection. It will, I hope, be apparent from what I have written that the entries will in my opinion afford information of the required kind by what they do not contain as well as by what they do contain. 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 the Court has had the opportunity to inspect the entries, if he should think fit." (589-560)

His Honour decided then to allow inspection by the parties' legal advisers only, on the basis that if wider disclosure were to be debated later on, the Court would have the benefit of informed submissions to assist it in determining the importance to the case of the documents and information derived from them. If limited inspection by legal advisers identified further grounds for disclosure, it would be in the public interest that they be placed before the Court. His Honour added the comment that if his conclusions were wrong, he would, in any event, have ordered inspection of those entries which recorded any assertion as to what had passed orally or in written form between representatives of the parties to the impugned agreement before it was made and in the course of negotiation for the agreement or otherwise with respect to that negotiation or that agreement. There could be, in his opinion, little injury to the public interest in giving inspection of what the notebooks record of statements of historical facts concerning which facts the parties' representatives and others able to give evidence of them would be giving in evidence at trial.

The matter came before the Full Court as a motion for leave to appeal and leave to appeal was granted at the outset, having regard to the importance of the issues in this case and the questions of principle to which it gives rise. There was some debate about whether leave was in fact necessary, but the Court was satisfied that the decision in question had the formal character of an interlocutory rather than a final decision. It nevertheless accepted that there was a critical element of substantive finality in the decision in that once the documents were disclosed, the disclosure could not be recalled. The Court proceeded to hear argument on the substantive appeal on grounds set out in a draft notice of appeal filed with the motion. The grounds were shortly put in the following terms:

"His Honour erred as follows:

3. In ordering the appellant to produce for inspection by the legal representatives of the first respondent entries in the 113 Cabinet notebooks and 13 other notebooks ("the entries").

4. In finding that the entries would be likely to be relevant to any issue in the proceeding.

5. In concluding that there were strong considerations against the denial of access to the entries.

6. In finding that the balance was clearly in favour of granting inspection of the entries to the legal representatives of the first respondent."

The grounds of appeal as formulated were somewhat uninformative and the nature of the argument advanced for the Commonwealth is better appreciated by brief reference to the submissions in support of the appeal. Energy Resources Australia, the second respondent, did not seek to be heard.

The Commonwealth's Contentions

At the threshold of the argument advanced for the Commonwealth was the submission that Cabinet notebooks as a class are immune from compulsory disclosure in judicial proceedings. Underpinning this proposition were arguments about the importance of Cabinet secrecy and collective responsibility as integral parts of the Australian system of government. Decided cases which have resolved claims for access to Cabinet submissions and minutes of decisions by weighing competing interests have not involved disclosure of the fact or contents of discussions between Ministers in Cabinet or of notes which might contain reference to such discussions. There is no authority, it was said, which has held that the content of Cabinet discussions can be disclosed.
Alternatively it was submitted that if it were open to the Court to entertain an assessment of competing interests in relation to this class of documents, the necessary pre-requisite for it to embark upon the balancing exercise did not exist. That is to say, there was nothing beyond mere speculation that the notebooks would contain material evidence. In this regard reference was made to Alister v R (1984) 154 CLR 404 at 412. If the occasion for a balancing exercise had arisen, it was said not to have been carried out properly by the learned trial judge who, it was said, failed to give adequate weight to the status of the documents, the evidence that the efficiency of the Cabinet system would be impaired by their disclosure, and the evidence of the continuing currency of the matters there recorded. It was submitted that his Honour also failed to adequately consider the limited purpose and form of the notebooks which are not a complete record. And in the pleadings the state of mind of individual Ministers was not an issue.
Foundations of Confidentiality and Collective
Responsibility in Cabinet Government
The conventional wisdom of contemporary constitutional practice presents secrecy as a necessary incident of collective responsibility. But historically it seems to have derived from the 17th century origins of the Cabinet as an inner circle of Privy Councillors, sometimes called the Cabinet Council, who acted as advisers to the Monarch. "Cabinet", the French word for a private room set apart for interviews, reflected the concept of an inner sanctum accessible only by those advisers. The relationship of Cabinet decision-making to the tendering of advice to the monarch or, in the Australian context, to the Governor-General in Council, may support a rationale for Cabinet secrecy. However, that basis for confidentiality has to be assessed in the light of the political imperatives of collective responsibility.
Because of the secrecy that surrounded its operations, the early development of the Cabinet system is obscure - O.Hood Phillips - Constitutional and Administrative Law - 7th Edition (1987) p 298; Matheson - The Prime Minister and the Cabinet (1977) at p 1-2. By 1867, when Walter Bagehot published The English Constitution, and the Cabinet was established as an element of the British parliamentary system, the obscurity remained:

"The most curious point about the Cabinet is that so very little is known about it. The meetings are not only secret in theory, but secret in reality. By the present practice, no official minute in all ordinary cases is kept of them. Even a private note is discouraged and disliked. The House of Commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a Cabinet meeting to be read. No Minister who respected the fundamental usages of political practice would attempt to read such a note. The committee which unites the law-making power to the law-executing power - which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the State - is a committee wholly secret." Bagehot (supra) p 68.

Although not enunciated by Bagehot the principle of collective responsibility was foreshadowed in a frequently quoted anecdotal footnote to the passage just cited. At the end of a Cabinet meeting proposing a fixed duty on corn, Lord Melbourne put his back to the door and said "Now is it to lower the price of corn or isn't it? It is not much matter which we say, but mind we must all say the same".

The concept of collective responsibility did not really emerge as an element of Cabinet government until the mid-19th century. P.G. Walker in The Cabinet (1970) at p 30 observed that in the time of King George III ministers sometimes spoke and even voted against policies determined by the Cabinet. The trend to solidarity seems to have developed as an incident of the two party system in England:

"As the two-party system began to arise so the feeling grew that such behaviour was improper. With the full establishment of the mass two-party system the doctrine of collective responsibility passed into the unwritten conventions of the Constitution - something that everyone took for granted. The doctrine was indeed necessary to the Cabinet from the mid- nineteenth century onwards. Cabinet Ministers were party leaders: both their leadership and the party itself would be weakened if the leaders openly attacked one another or publicly attributed views to one another." - Walker (supra) pp 30-31.

The need for party unity and a broader public interest basis for collective responsibility was suggested by Mackintosh in The British Cabinet (1968) at p 520-521. There was, he said, a feeling that those working together to guide national affairs ought either to be in sufficient agreement to give genuine efficacy to collective decisions, despite differences at the formative stage, or should resign. The doctrine, of course, lies in the field of convention and conventions on one view are no more than generally accepted political practices with a record of successful application or precedent - Mackintosh (supra). They are:

"...extra-legal rules of structure or procedure or principle, established by precedent, consolidated by usage and generally observed by all concerned." L.F. Crisp - Australian National Government 4th Edition p 352 n.5.

By definition they are not rules of law. See Munro - "Laws and Conventions Distinguished" (1975) 1 LQR 218 at 231-4; Re: Resolution to Amend the Constitution (1981) 1 SCR 753 at 774-784. Depending upon circumstances and political exigency conventions are not always applied. And they may change over time. The convention of collective responsibility has attracted an extensive literature and there are many cases cited of its application, but also cases of its waiver. Its malleability is exemplified in a statement made by the then British Prime Minister Mr Callaghan in the House of Commons in June 1977 and quoted in O. Hood Phillips (supra) at 313:

"I certainly think that doctrine (collective responsibility) should apply except in cases where I announce that it does not."

The learned author of that textbook, writing in the context of British constitutional practice, suggests that the convention has been weakening in recent years (at 312). Lord Widgery C.J. in Attorney-General v Jonathan Cape Ltd (1976) 1 QB 752 at 770 found "overwhelming evidence that the doctrine of joint responsibility is generally understood and practised and equally strong evidence that it is on occasion ignored". In Australia it has been said that the "associated convention of confidentiality has been honoured more in the breach, but that contention has not gone unchallenged" of the Australian Government" - M. Codd, "Cabinet Operations of the Australian Government" in Galligan Nethercote and Walsh eds. Decision Making in Australian Government: The Cabinet and Budget Processes ANU, (1990) p 1 at p 4.

Confidentiality has been described as the natural correlative of collective responsibility. It is said to be difficult for ministers to make an effective defence in public of decisions with which it is known that they have disagreed in the course of Cabinet discussions - L.S. Amery - The Nature of British Parliamentary Government in Parliament - A Survey at p 60. To accept that proposition is not to deny the phenomenon of the "leak" familiar to the most casual observer of the political process in both the United Kingdom and Australia and of which Walker wrote:

"In every Cabinet the leak will be deplored and condemned; but it is paradoxically necessary to the preservation of the doctrine of collective responsibility. It is the mechanism by which the doctrine of collective responsibility is reconciled with political reality. The unattributable leak is itself a recognition and acceptance of the doctrine that members of a Cabinet do not disagree in public." (p 34)

And in Attorney-General v Jonathan Cape Ltd (supra) at 770 it was said that "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".

Turning to judicial treatment of these issues in Australia, the concept of the Queensland Cabinet as an extra-legal shadow of the Executive Council led to disallowance of evidence of its deliberations in R. v Davenport (1874) 4 SCR (Qld) 99. In proceedings to eject the tenant of an agricultural crown leasehold for failure to meet development conditions, it was sought to lead evidence from a former Minister for Lands on whether a discussion in Cabinet about a report relating to non-fulfilment of conditions on land selections had resulted in any decision. Lutwyche J. held that the Cabinet was not a body recognised by the Colonial Constitution. If a Minister were empowered to act so as to bind the Crown it would not matter that his colleagues happened to agree with him. If the action taken were the result of a decision by the Executive Council "that is another matter and we cannot inquire into it...". The secrecy of Executive Council proceedings was asserted in a related case before the same judge, R. v Tooth (1874) 4 SCR (Qld) 96, when he would not receive evidence that the Minister had laid a certain document before the Governor in Council. It would, he said, be "contrary to the interests of the public and ... against public policy that such evidence should be given" (97). The Davenport case went on appeal to the Privy Council, Davenport v R. (1877) 3 App Cas 115 and the judgment of the Supreme Court was reversed. The evidentiary point was not expressly addressed, but in reciting the facts their Lordships observed without hesitation that the former Minister "...who was examined at the trial, deposed that having made himself acquainted with the report he laid it before his colleagues in the ministry, and that the result of their deliberations was a determination not to proceed for the forfeiture of the allotments, but to allow the future rents to be paid" (125). This evidence was taken into account by the Privy Council in concluding that rent had been received from the tenant "not only with full knowledge of the breach...but in consequence of the decision of the ministers of the Crown...come to after mature deliberation" (130).
The approach taken by the Privy Council was inconsistent with a simplistic application of the proposition that Cabinet is not known to the law - E. Campbell - Ministerial Privileges (1959) 1 Tas. Univ Law Rev 263 at 272-273. Professor Sawer has cautioned that the proposition cannot be carried too far but has accepted that:

"...when a legal issue is substantially one of fact, in which acts of the government as a collective person with knowledge and intention become relevant, there seems no reason why Cabinet proceedings should not be proved in a relevant case;... Questions whether a Minister had authority to negotiate or vary a contract binding the Crown, and had in fact done so, might provide examples as well as the waiver or estoppel type of problem illustrated by Davenport's case." Sawer - Councils Ministers and Cabinets in Australia (1956) Public Law 110, 116

See also New South Wales v Bardolph (1934) 52 CLR 455 at 462 (Evatt J. at trial).

The nature of the Cabinet and its responsibility to Parliament were characterised in Toy v Musgrove (1888) 14 VLR 349 as "unrecognised facts" of the English Constitution - per Higinbotham C.J. at 391. A Minister advising the Crown was seen as "privileged with respect to the advice given by him" and would not be compelled to disclose it in a court of law - Toy v Musgrove (supra) at 374 (Higinbotham C.J.) and 412 (Kerferd J.). The link between the political role of Cabinet and the substantive role of the Governor in Council was addressed by Street J. in Attorney-General v Williams (1913) 13 SR(NSW) 295 at 316 when he described the constitutional function of Cabinet as being to advise and not to act. If action were to be taken or orders given in accordance with advice, this must be done by the Governor in Council.
At federation, s.61 of the Constitution vested the executive power of the Commonwealth in the Queen and provided that it should be exercisable by the Governor-General. Section 62 established the Federal Executive Council "to advise the Governor-General in the Government of the Commonwealth" and so grafted into the Constitution the principle of responsible government. The section also requires members of the Federal Executive Council to be sworn, but does not specify any form of the oath; that used has reflected the spirit of the oaths used in Britain for Privy Councillors. Quick and Garran conclude in their Annotated Constitution of the Australian Commonwealth at 703, that the practical result of these provisions is that the executive power is placed in the hands of the Cabinet and the real head of the Executive is not the Queen but the Chairman of the Cabinet or, in other words, the Prime Minister. Whether or not contemporary commentaries would accept their characterisation of the Cabinet as a "Parliamentary Committee", their views of the conventions which regulate its operation indicated an acceptance in Australia at that time of the principles of collective responsibility and confidentiality. After referring to the secrecy of Cabinet proceedings and the process of formal submission of matters for decision by the Executive Council, they observed:

"The principle of the corporate unity and solidarity of the Cabinet requires that the Cabinet should have one harmonious policy both in administration and in legislation; that the advice tendered by the Cabinet to the Crown should be unanimous and consistent; that the Cabinet should stand or fall together."

The consequence of this principle of collective responsibility was expressed in the passage that immediately follows:

"The Cabinet as a whole is responsible for the advice and conduct of each of its members. If any member of the Cabinet seriously dissents from the opinion and policy approved by the majority of his colleagues it is his duty as a man of honour to resign."

It has been suggested that the practices of collective responsibility and confidentiality imported into Australia with responsible government are part of a "motley collection" of governmental conventions distinct from and of lesser significance than constitutional conventions which regulate the exercise of powers and discretions under specific provisions of the Constitution - Cooray - Conventions, The Australian Constitution and The Future (1979) pp 68-74. Given however the significance of the Cabinet as the repository of de facto decision-making power, it is hard to deny the constitutional significance of the conventions that regulate its operations. Its proximate relationship to the de jure powers of the Executive Council under s.61 of the Constitution enhances that significance - FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364 (Mason J.) and 373-374 (Murphy J.). In Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 at 421, Blackburn C.J. went so far as to say of the Executive Council and Cabinet:

"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 aspect of it."

On that basis it might be thought that there is room for the view that the secrecy of the "... counsels of the Crown" - Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 179 (Dixon J) might supply a rationale for Cabinet secrecy. Nevertheless Blackburn C.J. linked confidentiality firmly to the principle of collective responsibility and the associated objective of frank and open debate within the Cabinet and concluded:

"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."

His approach was referred to with apparent approval by Wilcox J. (Bowen C.J. and Sheppard J. agreeing) in Minister for Arts Heritage and Environment v Peko Wallsend Ltd (1987) 75 ALR 218 at 244-245. The case was concerned with the justiciability of Cabinet decision making rather than its confidentiality, but the connection between the two was adverted to by Wilcox J. who suggested at 245-246 that "the immunity from disclosure of the documents relating to such decisions has sometimes been regarded as a reason for denying reviewability of such decisions in courts of law: see Hogg, Judicial Review of Action by the Crown Representative 43 ALJ 215 at 219-20". In Ministerial Privileges (supra) Professor Campbell, discussing R. v Turnbull (1958) Tas SR 80, contended that it is unreal to base any rule of exclusion of Cabinet deliberations upon the oath or secrecy of Executive Councillors. Accepting that the oaths legally bind Ministers to secrecy in respect of Cabinet deliberations, she contended that the duty of secrecy is a convention and observance of secrecy is secured not so much by regard for the terms of the oath as by acceptance of the convention. Further, as she pointed out, it is erroneous to identify meetings of the Privy Council or Executive Council with meetings of the Cabinet. The secrecy attached to advice tendered to the Crown by its advisers from times predating the establishment in Britain of responsible government, provides historical support for the continued confidentiality in Australia of Cabinet meetings. But of greater importance in modern times is the precept or convention of collective responsibility.

Co-existing with the convention, but conceptually distinct from it, is the entitlement of the Crown to enforce the confidentiality of particular matters pertaining to the workings of government where disclosure would be "inimical to the public interest because national security, relations with foreign countries or the ordinary business of government (would) be prejudiced" - Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 52 (Mason J.). His Honour there approved what had been said by Lord Widgery C.J. in Attorney-General v Jonathan Cape Ltd (supra) at 770-771 in setting out the conditions under which the Court would restrain publication by a former Cabinet Minister of diaries containing accounts of meetings at which he had been present:

"The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need."

Mason J. spoke in similar vein, in the context of what was once called crown privilege, in Sankey v Whitlam (1978) 142 CLR 1 at 97-100. His Honour there cited discussion of the doctrine of collective responsibility in the 1976 report of the Committee of Privy Councillors on Ministerial Memoirs (The Radcliffe Committee) and its reference to the earlier finding of the Franks Committee that governmental representatives in France, Sweden, Canada and the United States 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 process especially at the highest level of policy making. Of that observation Mason J. 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." (98)

In this way, the law and political science meet.

It follows that the principal consideration in assessing the Commonwealth's claim for public interest immunity in this case is the impact of disclosure upon the interests protected by the convention of collective responsibility. In that assessment the Court must not lose sight of the realities to which the commentators have referred in the works already mentioned. See also Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 at 63.
The question of the disclosure of the Cabinet notebooks arises because they have been discovered by the Commonwealth. It is appropriate now to consider the implications of that discovery.
Discovery and the Crown
Discovery is only available against the Crown by reason of statutory provisions displacing its common law immunity once described as "a prerogative of the Crown" - Attorney General v Newcastle-Upon-Tyne Corporation (1897) 2 QB 384 at 395 (Rigby LJ). Although the Common Law Procedure Act 1854 (UK) provided for discovery in causes or civil proceedings generally, it did not extend to actions against the Crown by way of petition of right - Thomas v R. (1874) LR 10 QB 44; In Re La Societe Affreteurs Reunis and The Shipping Controller (1921) 3 KB 1 at 14 (Darling J.), 18 (Avory J.) and 21 (Greer J.). In equity a bill of discovery was not available against the Crown - Deare v Attorney General (1835) 1 Y. and C. 197 at 208; 160 ER 80; Duncan v Cammell Laird and Co. Ltd (1942) AC 624 at 632. And discovery, when provided by the Crown, was not regarded as eroding the basis for any claim to resist production of discovered documents in the public interest. In Attorney General v Newcastle-Upon-Tyne Corporation (supra) at 395, Rigby L.J. referred to the practice of law officers of the Crown giving voluntary discovery "unless there be some plain overruling principle of public interest concerned which cannot be disregarded. Then there is no hardship." That comment was taken up by Darling J. in In Re La Societe Affreteurs Reunis and the Shipping Controller (supra) at 16 and extended to the proposition that even after giving the fullest affidavit and list of documents the Crown could still refuse to produce them on the ground that it was not in the public interest that they be shown to anyone:

"An affidavit of documents when it has been obtained is not, like a thing of beauty, a joy for ever, but remains only an affidavit, and in this case ... it would be one of the most empty affidavits it is possible to conceive. It would simply state that the respondent had in his possession or power certain documents but that he objected to produce them for the sufficient reason that they should not be produced in the interests of the public, as would be shown at the proper time."

Avory J. agreed at 19. Like views were expressed by the Appellate Division of the Ontario Supreme Court in Crombie v R. (1923) 2 DLR 542 at 548.

The Crown's general immunity from discovery came to Australia undiminished but, as in the United Kingdom, is now subject to statutory modification. Modification was effected by s.64 of the Judiciary Act 1903 which provides that:

"In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given on either side, as in a suit between subject and subject."

Its operation is ambulatory. By virtue of that provision, a party bringing an action against the Commonwealth can invoke general provisions of the Rules of Court to enable an order to be made that the Commonwealth give discovery and answer interrogatories - The Commonwealth v Miller (1910) 10 CLR 742; Marconi's Wireless Telegraph Co. Ltd v The Commonwealth (1913) 16 CLR 178 at 182 (Griffith C.J.), 190 (Barton J.) and 201 (Isaacs J.). On the other hand, in an action brought at common law in the Supreme Court of New South Wales discovery sought under the Common Law Procedure Act 1899 (NSW) was held not to be available against an entity such as the Commonwealth. But that was a conclusion which turned entirely upon the construction of the Common Law Procedure Act - The Commonwealth v Baume (1905) 2 CLR 405. As Evatt J. pointed out in Heimann v The Commonwealth (1935) 54 CLR 126 at 133, it was quite plain that if an individual brought an action at law against the Commonwealth in the Supreme Court of New South Wales he might obtain discovery by invoking the auxiliary equitable jurisdiction of the Court. At 132 he made the general observation that:

"...although the Crown, whether represented by the Commonwealth or a State, originally enjoyed the prerogative right of refusing discovery of documents, the passage of such Acts as the Judiciary Act in respect of the Commonwealth, and the Claims Against the Government and the Crown Suits Act 1912 in respect of the State of New South Wales, has resulted in the disappearance of the old prerogative right by reason of the clearly expressed grant of inconsistent rights to litigants against the Crown."

In relation to matters within its jurisdiction, the Federal Court has power under s.23 of the Federal Court of Australia Act 1976 to make orders of such kind as the Court thinks appropriate. That power is wide enough to cover orders for the discovery, production and inspection of documents. It is supplemented by the provisions of s.59 which authorises the judges of the Court to make rules in relation to those matters. Order 15 of the Federal Court Rules is an expression of that authority. The interaction of these provisions with s.64 of the Judiciary Act enables this Court to make orders against the Commonwealth for discovery, inspection and production of documents. Discovery given by the Crown in right of the Commonwealth in proceedings in this Court does not differ qualitatively from discovery between subject and subject. It carries no lesser implication as to the relevance of the documents listed.

Discovery ordered by the Court under O.15 requires disclosure of documents which are or have been in the possession, custody or power of the party giving discovery, being documents "relating to any matter in question" between that party and the party to whom discovery is given (O.15 rr.2, 5 and 6). As appears from O.15 r.17, it does not pre-empt any claim for public interest immunity:

"This order does not affect any rule of law which authorises or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest."

A document relates to a matter in question between the parties if it is "reasonable to suppose" that the document "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". A document will answer that description if it may fairly lead to a train of inquiry which might have either of those consequences - The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 at 62-63 (Brett L.J.) and 60 (Baggallay L.J.). This extended meaning was described by Lord Scarman in Burmah Oil Co. Ltd v Bank of England (1980) AC 1090 at 1141 as "a vital part of the law of discovery, enabling justice to be done where one party knows the facts and possesses the documents and the other does not". The class of documents thus discoverable is not limited to those which would be evidence to prove or disprove any matter in question in the action. A similar formulation appears in Mulley v Manifold (1959) 103 CLR 341 at 345 (Menzies J.) and Temmler v Knoll Laboratories (Australia) Pty Ltd (1969) 43 ALJR 363 (Windeyer J.). The dicta in Peruvian Guano were expressly applied by Menhennit J. in Beecham Group Ltd v Bristol Myers Co. (1979) VR 273 at 277 and by the Full Court of this Court in Wellcome Foundation Ltd v V.R. Laboratories (Australia) Pty Ltd (1980) 42 FLR 266 at 269. That is not to say that speculative possibilities or the mere suggestion that a document may contain relevant material would be sufficient to attract the obligation to give discovery of it - Garden City Traders Association Ltd v Brisbane City Council (1972) Qd R 82 at 86-87.

Lord Scarman put the case against complete immunity even more strongly, rejecting the proposition that there are any classes of document which, however harmless their contents and however strong the requirements of justice, may never be disclosed until they are only of historical interest.

Class claims in England for unqualified protection were dealt a further blow in Air Canada. Lord Fraser (with whom Lord Edmund-Davies agreed) did not consider even Cabinet minutes to be completely immune from disclosure, although such documents were "entitled to a high degree of protection..." (432).
The conclusion from Sankey v Whitlam that no documents, however exalted their status, are completely immune from production, has been reflected in a number of subsequent Australian judgments including that of Lockhart J. in Haj-Ismail v Madigan (1982) 45 ALR 379; Priestley J.A. in Prineas v Forestry Commission of New South Wales (supra) cf Hutley J.A. at 165; Pincus J. in Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60; Wilcox J. in Kanthal Australia Pty Ltd v Minister for Industry Technology and Commerce (1987) 71 ALR 109; Rogers J. in Hooker Corporation Ltd v Darling Harbour Authority (unrep. Sup.Ct. NSW 7/5/87) and Carter J. in Koowarta v Bjelke-Petersen (1988) 92 FLR 104. The true position in this country then accords with what is said by Professor Hogg in his work Liability of the Crown 2nd Edition (1989) at p 68:

"It is now recognized that this approach - the balancing of competing interests - is the only correct one for all types of case. It does not seek to contradict a ministerial assertion of executive interest; on the contrary, it recognizes that interest, but it insists that the executive interest must be weighed in the balance with the competing interest in the administration of justice. On this approach there can be no hard-and-fast rules about which types of evidence are privileged and which are not. Every claim has to be considered on its own merits. It involves three judgments: (1) How much injury would be caused to executive interests by disclosing the evidence? (2) How much injury would be caused to the interests of justice by withholding the evidence? (3) Which interests should prevail? A minister can answer (1) but he cannot answer (2) or (3), and therefore his decision should not be treated as conclusive."

In support of its contrary submission, the Commonwealth relied upon the decision of Gibson J. in R. v Turnbull (1958) Tas SR 80 but, as Mason J. pointed out in Sankey v Whitlam (supra) at 99 the Tasmanian decision that Cabinet proceedings in that State are the subject of absolute privilege seems to reflect the law as it was thought to be before Conway v Rimmer. The Commonwealth also relied upon the decision of Blackburn C.J. in Whitlam v Australian Consolidated Press Ltd (supra). There the defendant sought answers to interrogatories on deliberations and votes in the Executive Council and in Cabinet. Blackburn C.J. approached the matter (at 417) by saying:

"It is sufficient to say at this stage that the question whether immunity from disclosure is to be granted will depend on the balancing of two competing aspects, both of public policy: on one hand the need to protect a public interest which might be endangered by disclosure, and on the other the need to ensure that the private rights of individual litigants are not unduly restricted."

His Honour concluded (at 424):

"In my opinion, in this case the public interest in maintaining Cabinet secrecy easily outweighs the contrary public interest in ensuring that the defendant has proper facilities for conducting its case, principally because of the enormous importance of Cabinet secrecy by comparison with the private rights of an individual, but also - as I have shown - because of the relative unimportance of these answers to the defendant's case".

His Honour earlier (at 422), with reference to what had been said by Gibbs A.C.J. in Sankey v Whitlam (supra) at 39, described the claim to immunity as a "class claim" rather than a contents claim. But, as Professor Pearce has pointed out, (54 ALJ at 129) on a close reading what the Acting Chief Justice said in the passage in question was no more than that there were types of documents, claims to the production of which would be carefully scrutinised. And, as is apparent from the passages set out from Blackburn C.J.., that is consistent with the approach his Honour took in dealing with the interrogatories in question before him.

Finally some support was sought by the Commonwealth from certain provisions in the Archives Act 1983. In s.3 there is excluded from the definition of "Commonwealth record" a record that is a "Cabinet notebook"; that term is defined as meaning:

"...a notebook or other like record that contains notes of discussions or deliberations taken 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 to the Cabinet."

The result of this is to remove Cabinet notebooks from the general provision of sub-s.31(1) requiring Commonwealth records in certain circumstances to be made available for public access. The general effect of s.19 is that provisions such as s.31 do not apply to records in the possession of a Court. In our view, however, the provisions of the Archives Act which place Cabinet notebooks in a special position do not detract in any way presently relevant from the treatment to be given after Sankey v Whitlam by this Court to "class claims".

It follows that the Commonwealth's contention that the notebooks fall into a class which enjoys absolute immunity from production, must fail.
Threshold Criteria for the Balancing Process
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 requirement in the terms contended for by the Commonwealth.
The threshold criteria for undertaking the balancing exercise were the subject of discussion and some difference of view in the House of Lords in Burmah Oil Co. Ltd v Bank of England (supra) and Air Canada v Secretary of State for Trade (supra). In both cases the criteria were considered against the requirements of R.S.C. O.24. r.13 which provides that:

"No order for the production of any documents for inspection or to the Court, or for the supply of a copy of any document shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs."

By the phrase "necessary for disposing fairly of the cause or matter or for saving costs", the rule defines the purpose against which inspection and the balancing of interests would be undertaken. And in the Air Canada case it was the view of at least three of the five Law Lords that there was no qualitative difference in the principles applied to the question to be asked in deciding whether to inspect and that to be asked in deciding whether to order production - 434 (Lord Fraser), 443 (Lord Edmund-Davies), 449 (Lord Templeman agreeing with Lord Fraser). Lord Edmund-Davies described the difference between the two stages as "not one of nature, but simply of degree" and at 443 quoted the statement of Lord Reid in Conway v Rimmer (1968) AC 910 at 953:

"If (the judge) decides that on balance the documents probably ought to be produced, I think that it would generally be best that he should see them before ordering production...If on reading the document he... thinks that it ought to be produced he will order its production."

The importance of the limiting principle imposed by O.24 r.13 on the criteria for inspection and production was apparent from references to it in the judgments in Burmah Oil at 1121 (Lord Salmon), 1125-6, 1130 (Lord Edmund-Davies), 1136 (Lord Keith) and 1141-2 (Lord Scarman) and in Air Canada at 433 (Lord Fraser), 438 (Lord Wilberforce) 441-2 (Lord Edmund-Davies) and 444 (Lord Scarman). It is against this background that the approaches taken in the two cases to the criteria for embarking upon the balancing exercise must be considered.

In Burmah Oil Lord Wilberforce considered that where a claim for public interest immunity had been made on manifestly solid grounds, it was necessary for those who would seek to overcome it to demonstrate the existence of a counteracting interest calling for disclosure of particular documents. The task of inspection should not be undertaken except where a strong positive case is made and not upon a bare unsupported assertion by the party seeking production that something to help him may be found (1117). In Lord Edmund-Davies' view it was sufficient that it be "on the cards" that there was the existence of relevant documentary material amongst that objected to. Once the withheld "class" documents are likely to contain material substantially useful to the parties seeking discovery "a judicial peep seems to be justifiable ... and may, indeed, prove vital... if the judge is to be enabled to arrive at a just conclusion on the matter of discovery" (1129). Lord Keith said, there may be cases in which it is clear from the ministerial certificate where the public interest lies. But in situations where "grave doubt" exists the Court may feel it cannot properly decide upon which side the balance falls without inspecting the documents. (1135) In the particular case he determined that there was "a reasonable probability" of finding the documents in question to contain a record of the views of the responsible officials of the Bank of England expressed in such terms as to lend substantial support to the contention that the bargain in issue was unconscionable. He did not consider that the exercise of the power to inspect in such a case was, of itself, detrimental to the public interest. It was "calculated to promote the public interest, by adding to public confidence in the administration of justice" (1136). Lord Scarman treated inspection by the Court as a power to be exercised only if the Court was in doubt after considering the certificate, the issues in the case and the relevance of the documents whose disclosure was sought (1145). Their Lordships decided to inspect the documents and, having inspected them, were of the view that none contained matter of such evidentiary value as to make an order for their disclosure, in all the circumstances, and in the language of O.24 r.13, "necessary to dispose fairly of the case". To the extent that their approach placed the burden of justification on the party seeking disclosure, it appears to have been influenced if not mandated by that rule - Hogg - Liability of the Crown 2nd Ed. 1989 p 69. It is also not without significance that Burmah Oil Co. Ltd itself accepted that it was for it to establish that the documents it wanted inspected were "very likely to contain evidence which is highly material" (1125).
In Air Canada, Lord Fraser (with whom Lord Edmund-Davies agreed) considered that inspection should not be ordered unless the Court is persuaded that it is likely to be satisfied that it ought to take the further step of ordering production. Lord Wilberforce adopted the view of the Court of Appeal that before inspection is undertaken there must be a likelihood that the document would support the case of the party seeking discovery. That likelihood must go beyond speculation. His Lordship's view required some concrete ground for belief taking the case beyond a mere fishing expedition (438-439). Lord Scarman disagreed with the position adopted by Lords Fraser and Edmund-Davies. He accepted that the likelihood that a document might assist the case of the party seeking production would be "a very relevant consideration" but should not be treated as a requirement of the law of discovery. It was evident that his Lordship favoured an approach which would take into account a range of factors relevant to the fair and economic determination of the case in accordance with the criteria in O.24 r.13 (445-446). And although Lord Templeman did not regard disclosure of the documents in question in that case as "necessary" to enable the plaintiff to prove the application of the relevant government policy, he agreed with Lord Scarman that the court should inspect documents if it considered their disclosure "may materially assist any of the parties to the proceedings" (449). But even on the more liberal approach adopted by Lords Scarman and Templeman, the language of RSC O.24 r.13(1) was of central importance.
Both the English cases were considered in Fletcher Timber Limited v Attorney-General (1984) 1 NZLR 290 where the New Zealand Court of Appeal held that on an application for the inspection of documents against which a public interest immunity claim is raised there is no onus on the applicant for inspection to establish that the documents are likely to help his case or damage that of his adversary. Rule 163 of the relevant Code of Civil Procedure read:

"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 a Judge thinks right, and the Court may deal with such documents when produced in such manner as appears just."

The Court of Appeal held that if documents meet the test in that rule because they relate to any matter in question in the action, the applicant for inspection is entitled to it unless the plea of privilege or immunity is upheld. The Court pointed out that:

(a) the English practice expressed in O.24 r.13 had been introduced in England in 1893 but had not been adopted in New Zealand;

(b) that change was the source of RSC O.24 r.13(1) which applied to Burmah Oil and Air Canada;

(c) reliance had been placed for the result in those cases upon O.24 r.13(1) and in this connection the Court of Appeal particularly adverted to the express references to the rule in Air Canada at 435, 438-439, 441, 444 and 449 which have already been mentioned.

There has been a similar response to the House of Lords decisions by the Supreme Court of Canada. In Carey v The Queen in Right of Ontario (1985) 35 DLR (4th) 161, the appellant sought various remedies in relation to a transaction with the Ontario Development Corporation, including the setting aside of a transfer of certain shares to the Corporation, on the grounds of duress and compulsion and as an unconscionable transaction. On pre-trial examination for discovery, absolute privilege was claimed respecting all documents which went to the Ontario Cabinet and its committees, and all documents which emanated from Cabinet; (supra) at 165. Production at the trial of the documents in question was then sought by subpoena. The litigation which reached the Supreme Court of Canada arose from a successful application by the Government of Ontario to quash the subpoena; see Re Carey and the Queen (1983) 43 OR (2d) 161. In the Ontario Court of Appeal, the Crown conceded that the documents whose production was sought were relevant to the matters in issue between the parties: 43 OR (2d) at 164. The Supreme Court of Canada allowed the appeal. The judgment of the Court was delivered by La Forest J. His Lordship referred (at 180-182) at length and with approval to Sankey v Whitlam. He noted that the instant case concerned alleged unconscionable behaviour on the part of the Government of a Province; that was a matter which militated in favour of disclosure of the documents in the present case. His Lordship said:

"As I see it, it is important that this question be aired not only in the interests of the administration of justice but also for the purpose for which it is sought to withhold the documents, namely, the proper functioning of the executive branch of government. For if there has been harsh or improper conduct in the dealings of the executive with the citizen, it ought to be revealed. The purpose of secrecy in government is to promote its proper functioning, not to facilitate improper conduct by the government. This has been stated in relation to criminal accusations in Whitlam, and while the present case is of a civil nature, it is one where the behaviour of the government is alleged to have been tainted." (188)

He then turned to the decision of the Ontario Court of Appeal. That Court had evidently acted upon what was said in Burmah Oil and Air Canada and had taken the view that even before the Court could inspect the documents, there had to be some concrete ground for belief, something beyond speculation, that they were likely to provide evidence of facts or a state of affairs which, if the documents were produced, would substantially assist the party seeking their production. After discussing Burmah Oil and Air Canada, and the terms of RSC O.24 r.13(1), La Forest J. said:

"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."

Speaking of the approach taken by the Ontario Court of Appeal, which had accepted the English view of the matter, his Lordship said, at 192:

"What troubles me about this approach is that it puts on a plaintiff the burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation."

His Lordship noted that the Supreme Court had not been referred to any rule in Ontario similar to RSC O.24 r.13, and then referred (at 194-195) with approval to the reasoning in Fletcher Timber Limited v Attorney-General. In the result, the Supreme Court of Canada ruled that the documents in question should be inspected by the trial Judge to determine whether, on balancing the competing interests involved, they should be produced to the parties seeking inspection.

Some, but not all of the Rules of the Supreme Courts of the States of Australia follow the English rule: see Campbell (1980) 54 ALJ 364 at 365-366. As noted earlier, O.15 of the Federal Court Rules deals with discovery but in a way that differs materially from RSC O.24 r.13(1). Order 15 r.6(4) obliges a party claiming privilege from production of documents in that party's possession, custody or power to sufficiently state the grounds of the privilege in the list of documents. An order for particular discovery may be made pursuant to O.15 r.8: Australian Broadcasting Commission v Parish (1981) 48 FLR 292. The criterion for making such an order is concerned with grounds for belief as to documents or a class of documents "relating to any matter in question in the proceeding". Order 15 r.14 permits curial inspection of documents the subject of claims of privilege or immunity but does not condition that power upon the requirement that its exercise is "necessary either for disposing fairly of the cause or matter or for saving costs". And O.15 r.15 requires no more than that an order for the production of documents be "necessary at the time that the order is made". In many proceedings in this Court discovery and inspection are dealt with on a directions hearing: see O.10 r.1(2)(a)(i), which contemplates the making of orders with respect to discovery and inspection of documents. In considering decisions in other jurisdictions upon matters of practice and procedure, it is important to appreciate that the courts in question may not have this system of judicial case management: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 395.

Counsel for the Commonwealth sought to persuade this Court not to follow the Court of Appeal in New Zealand and the Supreme Court of Canada. It was submitted that the matter was foreclosed by Australian authority which bound us to apply, in the present case, the two decisions of the House of Lords. It is necessary in the light of that submission to consider the High Court authority relied upon by the Commonwealth as having the effect submitted.
The decision in question is Alister v The Queen (1984) 154 CLR 404. One of the issues was whether, on a trial for conspiracy to murder and attempted murder, the trial judge erred in setting aside a subpoena directed to the officer in charge, Australian Security Intelligence Organisation ("ASIO") requiring him to produce documents. In response to the subpoena the Attorney-General for the Commonwealth swore an affidavit in which he stated that to disclose whether or not documents meeting the description in the subpoena existed would be prejudicial to security on various stated grounds. The trial judge set aside the subpoena without requiring the production for inspection by him of any documents answering the description in the subpoena. By a majority, (Gibbs C.J.., Murphy and Brennan JJ.) the Court granted special leave to appeal and stood the appeal over until a later date. It permitted the Director-General of ASIO, in the meantime, either to file an affidavit showing that ASIO did not have and never had had any documents of a class which the Court defined somewhat more narrowly than in the subpoena, or to secure production of them to the Court for inspection, subject to the liberty of the Attorney-General to raise further objection to the production of particular documents. Gibbs C.J.. said (at 415) that he was not persuaded that the public interest would be harmed by the discovery of the fact, if it were the fact, that particular reports had been made to ASIO concerning the applicants. He considered that the Court should inspect any documents in the relevant category for itself and that it should thereafter decide whether or not they should be shown to the applicants and what action, if any, should be taken. Murphy J. (at 431) and Brennan J. (at 457) considered that the trial judge ought to have inspected the documents sought by the subpoena. Alister v The Queen must be read in the light of its particular, and unusual, facts. It was a case involving national security in which a subpoena had been set aside. The accused who sought the documents could not say whether or not any of them in fact existed. The issue did not arise out of an objection to the production of documents which, by virtue of their inclusion in a list prepared for the purposes of discovery, might be taken ex concessis as relating to a matter in question between the parties (FCR O.15 rr. 2, 5 and 6).
Gibbs C.J.. held that the balancing exercise in that case could only be undertaken:

"...when it appears that both aspects of the public interest do require consideration - i.e., 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." (412)

His Honour cited with approval, the observation of Lord Wilberforce in Air Canada that before inspecting documents a judge must have some concrete ground for belief which takes the case beyond a mere fishing expedition (414). In the context of a criminal proceeding however, special weight must be attached to the fact that the documents may support the defence of an accused person. It may be enough that it appears "on the cards" that the documents will materially assist the defence (414). On this question it appears that Murphy J. agreed with the Chief Justice (431). Brennan J. noted the injunction against mere fishing expeditions in Air Canada, but also that it was a civil proceeding whereas the case in point was criminal and a more liberal approach appropriate (456). His Honour did not specify a threshold principle beyond requiring consideration of relevant factors such as the gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity. Wilson and Dawson JJ. who dissented thought it essential that the applicants for production show some basis for a rational inference of a likelihood that the documents which ASIO might produce would go substantially to proof of their innocence of the charges against them (at 438). They considered that the case put by the applicants was so lacking in substance that the High Court was not warranted in inspecting the documents itself. They stressed the reliance upon danger to national security which was the basis of the claim to immunity and said that a Court must be more than ordinarily cautious in requiring production of security documents, even if it is only to itself (at 439).

The High Court in Alister's case did not lay down any rule of law to bind the judges of this Court in determining whether in a civil case where discovery has been given and a claim of public interest immunity made on proper grounds, the documents in question should be inspected and whether they should be disclosed to the parties. Given the provisions of O.15 rr.14 and 15 of the Federal Court Rules, which are less confined than those in RSC O.24 r.13, under which the English cases were decided, this Court is free to take a somewhat broader approach bearing in mind nevertheless that under O.15 r.15 production of a document must be "necessary at the time when the order is made".
In taking that approach in this case, the Court does not need to advert to the possibility of purely speculative inspection or fishing expeditions for it is not in dispute that the documents in question relate to matters in issue between the parties, at least to the extent that they may lead to a train of inquiry which will either advance the applicant's case or damage that of its adversary. And it follows as a matter of logic that there is a likelihood, in the sense of a finite, non-trivial probability, that the documents will advance the Council's case or damage that of the Commonwealth.
Ultimately this is not a case about curial inspection, nor about open disclosure to the parties. For the order under appeal permitted inspection by the parties' legal advisers on a confidential basis. But accepting that the threshold criteria for judicial inspection and open disclosure may be related (see Lord Reid in Conway v Rimmer at 953), it can be accepted also that the criteria for limited disclosure are similarly connected to both of these. The several approaches to these steps and the relationships between them may best be considered by going directly to the case where the decision is whether the documents for which public interest immunity is claimed are to be disclosed openly to the parties.
The Balancing Process
The concession of public interest immunity is, as already remarked, a self-imposed judicial restraint. The decision-making in such cases will require a balancing process between the public interest in the administration of justice and the public interest invoked in support of the immunity. To say that is to say nothing more than that the Court is required to take into account and weigh factors relevant to the question whether to require production and allow disclosure or not. In so doing, the Court undertakes what Stephen J. characterised in Sankey v Whitlam at 63-64 as a recognition of competing aspects of the public interest, their respective weights and the resultant balance which will vary from case to case. The factors relevant to deciding a public interest immunity claim will include the following:

1. where the contents of the documents are relied upon, the interests affected by their disclosure e.g. national security, relationships with foreign governments and unfair prejudice to other parties by disclosure of confidential information - where the impact of disclosure on the public interest is peculiarly within the knowledge of the Executive, its contentions will be given particular weight;

2. where the class of documents is invoked, the public interest which immunity for the class is said to protect e.g. political conventions and governmental processes; in this connection the importance of the convention of collective responsibility and the confidentiality required to support it, particularly in areas of current political debate, will be accorded a high degree of respect;

3. the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents or the documents themselves came into existence;

4. the seriousness of the issues in relation to which production is sought e.g. innocence of a criminal charge or governmental misconduct bearing upon the case;

5. the likelihood that production of the documents will affect the outcome of the case;

6. the likelihood of injustice if the documents are not produced.

Inspection by the judge can be undertaken as an aid 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 and does not require the application of some rule of thumb which may distract the judicial mind from the demands of the particular case.
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. The decision of the judge is not to be interfered with on appeal unless some error of principle can be demonstrated either explicitly or by implication from the way in which the discretion has been exercised in the case in question.
Where disclosure is limited to counsel and solicitors, they are obliged to honour the restrictions imposed by the Court. It is 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 on the basis of adequate information on where the balance lies if unrestricted disclosure of the documents in question is sought.
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 and that the appeal must be dismissed with costs.

[1991] FCA 537

03 SEPTEMBER 1991