Construction, Forestry, Mining and Energy Union v Hamberger
[1999] FCA 1301
•6 SEPTEMBER 1999
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Hamberger
(Employment Advocate) [1999] FCA 1301PRIVILEGE – discovery – objection by the Commonwealth to produce for inspection an unsigned version of a letter signed by the Workplace Relations Minister to the Prime Minister – public interest immunity privilege – whether letter to be classed as a document which records the actual deliberations of Cabinet – whether the Court is in a position to properly carry out the balancing exercise between the administration of justice and the public interest in the absence of considering the contents of the document.
Workplace Relations Act 1996 (Cth) s170NG
Construction, Forestry, Mining and Energy Union v Jonathan Hamberger [1999] FCA 693, referred to
Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604, applied
Sankey v Whitlam (1978) 142 CLR 1, applied
New South Wales v Ryan (1998) 101 LGERA 246, considered
Alister v The Queen (1984) 154 CLR 404, considered
Legal Services Commission v Trotter (1990) 54 SASR 74, considered
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v JONATHAN HAMBERGER (in his capacity as the EMPLOYMENT ADVOCATE)
V 259 of 1999
MARSHALL J
MELBOURNE
6 SEPTEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 259 OF 1999
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
JONATHAN HAMBERGER (in his capacity as the EMPLOYMENT ADVOCATE)
RespondentJUDGE:
MARSHALL J
DATE OF ORDER:
6 SEPTEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondent produce to the Court, within 21 days of the date of this order, the copy letter referred to in his list of documents filed on 26 July 1999 in Part 2 of Schedule 1 thereto.
2.Production to the Court not be required in the event that the Commonwealth advises the Court that it will seek leave to appeal from the exercise of the Court’s discretion to require such production on the condition such application is filed and served within 21 days of the date of this order.
3.In the event that any application for leave to appeal from the reasons for judgment in this matter given this day, or any appeal upon the grant of such leave be dismissed, or no such application for leave to appeal is filed, production in accordance with the order numbered 1 of these orders shall occur within 21 days of the date of any such order of a Full Court or within 21 days of the date of this order in the absence of any application for leave to appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 259 OF 1999
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
JONATHAN HAMBERGER in his capacity as the EMPLOYMENT ADVOCATE
Respondent
JUDGE:
MARSHALL J
DATE:
6 SEPTEMBER 1999
PLACE:
MELBOURNE
REASONS FOR INTERLOCUTORY JUDGMENT (No 2)
Introduction
The substantive application in this proceeding is one for the imposition of a penalty upon the respondent, Mr Hamberger, for contravention of s170NG of the Workplace Relations Act 1996 (Cth) (“the Act”).
On 21 May 1999 the Court, in ex-tempore reasons for judgment, granted the applicant, the Construction, Forestry, Mining and Energy Union (“the Union”) injunctive relief against Mr Hamberger in the following terms:
“Upon the applicant giving the usual undertakings as to damages:
1.Until 4.30 pm on Friday, 28 May 1999 or further order, the respondent be restrained by himself, his servants or agents or otherwise from taking or threatening to take any action with intent to coerce:
(a) Multiplex Constructions Pty Ltd;
(b) the applicant;
(c)the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; or
(d)the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
not to seek to certify or vary the Federation Square Productivity Agreement, an agreement in accordance with Division 2 or Division 3 of Part VIB of the Act.
2.The hearing of the application for the extension of interlocutory relief and the directions hearing be adjourned to 10.15 am on Friday, 28 May 1999.
3.Liberty to apply on not less than 24 hours written notice to each other party.”
See Construction, Forestry, Mining and Energy Union v Jonathan Hamberger [1999] FCA 693.
On 28 May 1999 the Court set aside the injunction it granted on 21 May 1999 and in lieu thereof accepted an undertaking from Mr Hamberger in the same terms as the order numbered 1 of the orders made on 21 May 1999.
On 2 June 1999 the Court ordered that Mr Hamberger be released from his undertaking given to the Court on 28 May 1999. It also ordered that on or before 23 July 1999 Mr Hamberger file and serve a verified list of documents comprising, inter alia, correspondence between Mr Hamberger or his staff and the Ministry of Workplace Relations concerning the Federation Square project.
The matter was otherwise adjourned to a directions hearing on 26 July 1999.
On 26 July 1999 Mr Hamberger’s counsel filed in Court a list of documents. Paragraph 2 of that list stated that:
“The document enumerated in Part 2 of Schedule 1 is privileged on the ground of public interest immunity.”
Part 2 of Schedule 1 to the list identified the following document:
“1.Copy of letter from the Minister for Employment, Workplace Relations and Small Business to the Prime Minister (undated).”
On 26 July 1999, as amended by consent on 5 August 1999, the Court ordered that:
“1.The directions hearing be adjourned to 10.15 am on 27 August 1999 for argument on the claim of public interest immunity made in the Respondent’s list of documents and for the return of subpoenas.
2.The Commonwealth of Australia file and serve any affidavit on which it intends to rely in support of its claim for public interest immunity by 20 August 1999.
3.There be liberty to apply on not less than 24 hours notice in writing.”
The evidence
On 20 August 1999 the Commonwealth filed and served an affidavit, sworn on 19 August 1999 by Mr Alan Gilbert Henderson in support of the claim by the Commonwealth for public interest immunity privilege, regarding the undated letter from Mr Reith, the Workplace Relations Minister to the Prime Minister.
Mr Henderson is the Executive Coordinator in the Department of Prime Minister and Cabinet. He is responsible for the custody of Cabinet records.
Mr Henderson was not sought to be cross-examined on the contents of his affidavit. The affidavit makes the following points:
· it is established by convention that confidentiality properly attaches to the deliberations of Ministers in Cabinet;
· such convention:
(a)facilitates full and frank discussions in Cabinet free from public comment and exposure;
(b)preserves the principle of collective responsibility;
(c)facilitates finality of decision making; and,
(d)ensures that the Government is accountable and responsible to the Parliament.
In Mr Henderson’s opinion the disclosure of the letter from Mr Reith to the Prime Minister “would reveal the deliberations of Cabinet, thereby breaching the convention of Cabinet confidentiality and undermining the working of the Cabinet system of government”.
Mr Henderson gave evidence that the letter, the subject of the claim for privilege, is an unsigned version of a letter that was signed by Mr Reith on 13 May 1999 and forwarded to the Prime Minister. Mr Henderson has compared the letter with the signed version and has “confirmed that the texts of the two are identical”.
Ms Leslie Riggs is the Group Manager Workplace Reform, in Mr Reith’s Department. She informed Mr Henderson that to the best of her recollection the unsigned and undated letter was sent by her to Mr Hamberger.
Mr Henderson described the letter in the following way:
“The letter seeks the Prime Minister’s agreement to raise certain matters, including of high level government policy in relation to workplace relations issues, discussed in some detail in the letter, in Cabinet at its next meeting.”
According to advice given to Mr Henderson, “the letter was circulated amongst Ministers in the Cabinet room at that meeting”. Describing the letter further, Mr Henderson said that:
“The letter reveals issues that the Minister [Mr Reith] sought to have considered by Cabinet and the Minister’s proposed course of action in relation to those issues, as well as giving an indication of the arguments to be put by the Minister.”
In Mr Henderson’s opinion, “the letter is in the same position as a Cabinet submission and the matters it contains were the subject of Cabinet deliberation.” He concludes that “(g)iven the content of the letter and the fact that it was circulated in Cabinet as sought by the Minister, disclosure of the letter would breach the convention of Cabinet confidentiality.”
Dr Griffith QC, with Mr Batt, of counsel, appeared for the Commonwealth on 27 August 1999 to support its claim for public interest immunity privilege in respect of Mr Reith’s undated and unsigned letter which is the subject of Mr Henderson’s affidavit. Ms Doyle, of counsel, appeared for the Union to press for the production of the letter.
Cabinet deliberations?
In Commonwealth v Northern Land Council (1993) 176 CLR 604, a Full Court of the High Court of Australia held by a 6 - 1 majority that documents which recorded the actual deliberations of Cabinet are immune from disclosure. In the joint judgment of the majority (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ), the following was said (at 614):
“It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet. They are not documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet.”
Dr Griffith submitted that as the letter reveals issues which Mr Reith sought to have considered by Cabinet and included a proposed course of action, the letter is “akin to a Cabinet submission”. It was also submitted that as the letter was circulated in Cabinet disclosure of it would reveal the deliberations of Cabinet. Those submissions are largely sourced in Mr Henderson’s evidence. However Mr Henderson does not say that disclosure of the letter would reveal the deliberations of Cabinet as a matter of fact. Rather he offers an opinion to that effect without establishing the basis for that opinion.
Based on the description of the letter in the affidavit, it was produced prior to the Cabinet meeting at which it was circulated and does not record Cabinet deliberations. I accept Ms Doyle’s submission that the letter is a document prepared outside Cabinet and therefore, as Northern Land Council shows, a lesser degree of protection is afforded from disclosure than is the case with documents which record Cabinet deliberations.
Putting to one side whether the letter would disclose the deliberations of Cabinet, Dr Griffith submitted that it was nonetheless a Cabinet document as referred to in Northern Land Council (at 614). He contended that Cabinet documents included “documents circulated in Cabinet, and submissions and reports prepared outside Cabinet for its assistance or consideration”.
Whether a particular document, which is a “Cabinet document” in the sense described in Northern Land Council (at 614), is immune from production on the grounds on public interest immunity will depend on the circumstances prevailing in each particular case. Each such claim for public interest immunity is required to be considered in the context of the competing public interest in the proper administration of justice which “requires that the parties be given a fair trial on all the relevant and material evidence” (per Mason J in Sankey v Whitlam (1978) 142 CLR 1, (at 95-96).
In Sankey (at 98), Mason J recognised the public interest in not disclosing the contents of documents which reveal “high level deliberations” and that aspect of public interest must be “weighed in the balance with public interest in the administration of justice”. Mason J (at 99):
“As the range of issues which engage the attention of the Executive Government is infinite and as the manner in which those issues are considered varies from case to case, it is impossible to lay down hard and fast rules which will provide universal answers. Each case here, as elsewhere depends on its own circumstances and it is only by a consideration of them that a correct balance will be reached.”
Gibbs ACJ in Sankey observed that (at 43):
“The fundamental and governing principle is that documents in the class [which attract protection from disclosure] may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection – the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned.”
In New South Wales v Ryan (1998) 101 LGERA 246, (at 252) a Full Court of this Court emphasised that the question for the Court in a case of this kind is whether the relevance of the document to the proceedings is sufficient to justify disclosure. The Full Court immediately added that:
“In a case where the court has to weigh the competing public interests, it is required, in doing so, to give weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the document."
In this case the basis put forward for non-disclosure is that disclosure would undermine the principle of collective responsibility and interfere with the working of the Cabinet system of government. In Ryan the Full Court said that (at 252):
“Only a sufficient demand of justice can outweigh the protection to which Cabinet documents are entitled in virtue of their nature, irrespective of those facts. Furthermore, the authorities also require weight to be given to the government’s claim that disclosure of the document would be harmful, and it is simply not correct that disclosure of recommendations couched in broad terms, or which are implicit rather than express, could not justify this claim. On the contrary, recommendations of any kind contained in a document submitted to Cabinet are quite likely to have been involved in the deliberations of Cabinet. In this case, those deliberations were recent, and have not yet been concluded. The subject is controversial.”
The administration of justice
Ms Doyle submitted that in weighing the administration of justice against the public interest in non-disclosure the Court should consider the gravity of the question to be determined and the nature of the issues in the proceeding. Ms Doyle emphasised that the Union seeks the imposition on Mr Hamberger of a penalty for breach of Part XA of the Act particularly in circumstances where it is Mr Hamberger’s public duty to safeguard against such breaches. Therefore, it was submitted that the allegations contained in the statement of claim are serious and relate to the proper functioning of government.
Ms Doyle further submitted that the contents of the letter are likely to be important in the Union’s case as they may reveal that Mr Reith directed Mr Hamberger to take certain action regarding the Federation Square project. Such was the nature of the consideration which the Court was urged to weigh in the balance in determining the issue before it.
Inspection by the Court
It should be noted that in Ryan the primary judge and the members of the Full Court each had the advantage of considering the relevant document for the purpose of delivering reasons for judgment. It is difficult to fairly weigh in the balance the two competing public interests at stake in this matter without inspecting the relevant document. To do so would be tantamount to attempting to determine the claim for public interest immunity in a vacuum. It follows that much of what has been advanced by counsel about what effect disclosure may or may not have is hard to assess without seeing the document in question. It would be different if the document recorded the actual deliberations of Cabinet in which case the immunity would be attracted and inspection by the Court would be pointless, at least in civil proceedings as recognised in Northern Land Council.
Ms Doyle urged the Court to inspect the letter to properly carry out the balancing exercise it is required to conduct. In Northern Land Council the majority urged against inspection “as a matter of course” (at 617). Dr Griffith contended that only in the event that the Court was not prepared to accept his submission that the letter disclosed Cabinet deliberations should the Court call for the production of the document to it. It is plain that the document does not purport to, and by its very description cannot be, a record of actual Cabinet deliberations. Although having regard to the view of the Full Court in Ryan it is probable that the contents of the letter were “involved in the deliberations of Cabinet”. Whether the subject matter remains controversial is impossible to determine in the absence of the Court considering the contents of the document.
Dr Griffith urged the Court not to act out of curiosity and said: “We say curiosity is not the reason to see a document, it’s only when it seems that the balancing process must truly be engaged.” No consideration of curiosity has any impact on the Court’s examination of this matter. The Court is concerned simply to come to the correct legal result and is not influenced by any desire to unnecessarily intrude into government affairs for personal interest. Indeed it considers that inspection is necessary because this is a case where the balancing process must truly be engaged.
In Alister v The Queen (1984) 154 CLR 404, 416 Gibbs CJ recognised that it may be appropriate for the Court to inspect documents which attract a claim for public interest immunity (at 416). Further as Cox J (with whom King CJ agreed) said in Legal Services Commission v Trotter [1990] 54 SASR 74 at 85:
“A claim that the actual contents of a document will establish a substantial public interest immunity and tip the scales in favour of the claimant could not be resolved, I should think, except in the clearest of cases, without first reading the document and forming a judgment upon it. For instance, often an important balancing factor will be the extent to which the document is likely to assist the party in the prosecution of his case, and it would be impossible to make any estimate of that on general principles, much less mere surmise.”
This case is not a clear case where the Court should refrain from inspecting the document. The Court is currently in some doubt in its conduct of the balancing exercise it is required to perform in the absence of inspection. It is not possible to make any estimate in the absence of inspection of the likely assistance, if any, that the applicant may derive from production in the interests of due administration of justice.
The proceeding before the Court involves a very serious allegation of what is contended to be a gross abuse of power by a very senior public official, that is, that he has allegedly engaged in the very conduct which it is his duty to seek to prohibit. It is analogous to a proceeding in which a corruption claim is made against a senior police officer. In those circumstances a claim for public interest immunity in respect of a document which the official received at or about the time of his alleged misfeasance may be a critical document for the applicant to seek to place into evidence in the interests of a fair disposition of the proceeding. On the other hand, as Ryan illustrates, the public interest in withholding Cabinet documents from disclosure is also extremely important. Without examining the letter the Court cannot have any idea if its contents remain controversial notwithstanding the passing of a period in excess of 3 months. It may transpire that the Court is none the wiser after inspection but anything that may assist the resolution of the requisite balancing process, in what is a most difficult issue, is likely to be of some assistance.
Accordingly I propose to exercise my discretion to order that the letter be produced to the Court within 21 days of the date of these reasons for judgment. However I do not propose to inspect the letter until after the Commonwealth has had the opportunity to consider whether it wishes to seek leave to appeal from the exercise of my discretion in this interlocutory matter. I will inform the parties and the Commonwealth at the next directions hearing of the steps I intend to take to further resolve the claim for public interest immunity in the event that the Commonwealth does not seek leave to appeal from the exercise of the Court’s discretion to require production of the letter to it.
Order
1. The respondent produce to the Court, within 21 days of the date of this order, the copy letter referred to in his list of documents filed on 26 July 1999 in Part 2 of Schedule 1 thereto.
2. Production to the Court not be required in the event that the Commonwealth advises the Court that it will seek leave to appeal from the exercise of the Court’s discretion to require such production on the condition such application is filed and served within 21 days of the date of this order.
3. The event that any application for leave to appeal from the reasons for judgment in this matter given this day, or any appeal upon the grant of such leave be dismissed, or no such application for leave to appeal is filed, production in accordance with the order numbered 1 shall occur within 21 days of the date of any such order of a Full Court or within 21 days of the date of this order in the absence of any application for leave to appeal.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 6 September 1999
Counsel for the Applicant: Ms R Doyle Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr R S Tracey QC Solicitor for the Respondent: Freehill Hollingdale and Page Counsel for the Commonwealth: Dr G Griffith QC with Mr D Batt Solicitor for the Commonwealth: Australian Government Solicitor Date of Hearing: 27 August 1999 Date of Judgment: 6 September 1999 (ex-tempore as revised from transcript)
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