Gardiner v Attorney-General

In the case of Gardiner v Attorney-General, the plaintiffs sought the production of a ‘Part A threshold statement’ provided by the second defendant to the first defendant to initiate negotiations under the Traditional Owner Settlement Act 2010 (Vic). The second defendant claimed the document was subject to public interest immunity. The Supreme Court was required to determine whether public interest immunity attached to the information about Aboriginal culture and traditions, whether the document was provided and received in confidence, and whether disclosure would impair future performance of governmental functions.

The Court found that the document was not subject to public interest immunity. It was held that public interest immunity is concerned with protecting the operation of government and does not extend to any circumstance in which exclusion should be supported on the grounds of public policy. The Court found that neither the Council nor FNLRS were governmental bodies that could claim public interest immunity, and the Statement did not concern ‘matters of state’ to which section 130 of the Evidence Act 2008 (Vic) applies, or governmental information of the kind that public interest immunity protects. The Court also found that although the categories of public interest that are protected by the immunity are not closed, public interest immunity is concerned with protecting the operation of government.

The Court considered the appropriate confidentiality regime for the document and found that the document should be protected by a confidentiality order. The Court found that the Taungurung traditional owner group had made a claim for confidentiality when they submitted the Statement, and that the primary concern of the Attorney-General was to respect this claim. The Court found that the document should be protected by a confidentiality order to prevent any unauthorised disclosure of the information contained in it.

The Court ordered that the document be protected by a confidentiality order and that the plaintiffs be given leave to amend their statement of claim to include a claim for an order that the document be produced subject to a confidentiality order.