Kamasaee v Commonwealth of Australia and ors (No 7) (Stage 3 foreign relations documents ruling)

[2016] VSC 770

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 06770

MAJID KARAMI KAMASAEE	Plaintiff
v
THE COMMONWEALTH OF AUSTRALIA AND OTHERS (according to the attached schedule)	Defendants

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2016
DATE OF RULING:	16 December 2016
CASE MAY BE CITED AS:	Kamasaee v Commonwealth of Australia and ors (No 7) (Stage 3 foreign relations documents ruling)
MEDIUM NEUTRAL CITATION:	[2016] VSC 770

---

EVIDENCE – Discovery – Public interest immunity claimed over production of documents characterised as foreign relations documents – Evidence Act 2008 (Vic) s 130.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Szydzik	Slater & Gordon Lawyers
For the First Defendant	Mr T Begbie with Ms A Lord	Australian Government Solicitor

HER HONOUR:

1           The plaintiff, Mr Kamasaee, brings this proceeding on his own behalf and on behalf of other persons detained upon Manus Island, Papua New Guinea (‘PNG’).  The plaintiff alleges that the first defendant, the Commonwealth of Australia (‘Commonwealth’) was in effective control of the detention centre on Manus Island, and as such, owed a duty of care to the plaintiff and the other detainees.  The plaintiff seeks damages for the alleged physical and psychological harm alleged to have been caused by the breaches of those duties by the Commonwealth and the other defendants.  The plaintiff also claims damages on account of false imprisonment. 

2           This ruling concerns objections made by the Commonwealth to the production of documents discovered by it during the third tranche of discovery (‘Stage 3’), and should be read in conjunction with the rulings of Macaulay J in Kamasaee v Commonwealth of Australia (No 4) (PII – sample foreign relations claims)[1] (‘Ruling No 4’) and Kamasaee v Commonwealth of Australia (No 6) (foreign relations and ICRC documents ruling) (‘Ruling No 6’).[2] These rulings contain an outline of the issues in the proceeding, the nature of the objections of the Commonwealth to the inspection of certain documents discovered by it in the proceeding, and the applicable legal principles to applications under s 130 of the Evidence Act 2008 (Vic). The Commonwealth objected to the production of certain documents on the grounds of what is commonly described as public interest immunity, on the basis that disclosure of those documents will ‘prejudice the security, defence or international relations of Australia (‘foreign relations objections’).

[1][2016] VSC 492.

[2][2016] VSC 605.

3           Since the orders made by Macaulay J on 7 October 2016 referring to me the determination of the Stage 3 foreign relations objections, the parties have continued to correspond with each other regarding the foreign relations objections and the plaintiff’s challenges to those objections.  By the time of the hearing on 9 December 2016, only seventeen  documents remained in dispute (‘outstanding documents’), two of which were, in effect, duplicates of each other.  One of the documents concerned a quarterly report prepared by the Australian Red Cross: any ruling on that has been deferred pending further correspondence between the parties.  Consideration of another two documents has also been deferred pending the provision by the Commonwealth of further evidence concerning the contents and sensitivity of those documents. 

4           A number of the outstanding documents are documents over which the Commonwealth claims should not be produced in their entirety (‘full PII claims’).  The Commonwealth claims that some documents should only be produced to the plaintiff with some redactions (‘Part PII claims’).  The solicitors for the plaintiff have not pressed for open disclosure of any of the outstanding documents: rather, they are content for any documents to be produced to them under the confidentiality regime established by the orders of Macaulay J made on 7 October 2016 (‘limited access regime’). 

5           During the course of the hearing on 9 December 2016, I indicated that I proposed to adopt, to the extent necessary, the findings of Macaulay J on matters of principle and also the methodology used by his Honour. 

6           As for the approach to be taken to the foreign relations objections,  in Ruling No 4, Macaulay J held that it was not necessary for an applicant for immunity to establish that it was more probable than not that disclosure would cause harm to Australia’s national interest.  Rather, it is sufficient for the Commonwealth to show that:[3]

the creation of a significant risk of harming Australia’s bilateral relationship with PNG would ‘prejudice the international relations of Australia’.

[3]Ruling No 4, [14].

7           Further, at paragraphs 56 and 57 of ruling No 4, his Honour stated as follows:

Having regard to the evidence and to the parties’ submissions I propose to deal with each document by considering the following matters:

·its category, and the apprehended subject matter of documents within that category as explained by Mr Baker;

·whether the Commonwealth’s claim for protection is as a class claim or a contents claim;

·the part or parts of each document over which a claim is made, and the surrounding context of those parts;

·the specific ground claimed, whether that ground has been sufficiently specified, the nature of the risk of harm that is described and the degree of its currency;

·whether, in view of the above matters, there is a prima facie public interest in non-disclosure;

·whether, in view of the category of document, the surrounding context of the disputed part, the plaintiff’s apprehension of relevance and my inspection of the whole document, there is some legitimate forensic purpose in disclosure of the disputed parts;

·if there are competing public interests, having regard to the factors in s 130(5) and other relevant factors, which public interest predominates.

In weighing the two public interests, where it is necessary to do so, I will bear in mind that this is not a criminal proceeding.  Yet, it is a substantial civil action in which the interests of a significant number of persons are in issue. The subject matter of the proceeding engages important matters of principle at a high level. 

8 Ruling No 4 was concerned with a sample of foreign relations documents, in which rulings were made with the intent of providing guidance to the parties when making and challenging claims under s 130 during the course of the discovery process, which has, as noted above, been carried out in tranches. Given the number of documents required to be determined by Ruling No 6 (29), and the even lesser number before me in Stage 3, this process has been largely effective in narrowing the scope of the dispute, and the parties are to be commended for their engagement in this process. Given the stage of the proceeding, and the nature of the claims, it is unnecessary and undesirable to provide an extensive explanation for the determination of the foreign relations objections in relation to each of the outstanding documents.

9           As for the approach to the determination of Stage 3 the foreign relations objections, I refer to the following statement of Macaulay J in Ruling No 6:[4]

[4]At [20].

After reading and considering the evidence and submissions in respect of each document, I will simply state conclusions in relation to each of the following:

(a)whether there is public interest in preserving secrecy or confidentiality in relation to the information or document due to the risk that disclosure of it would prejudice the security, defence or international relations of Australia (national sensitivity);

(b)the degree of any such national sensitivity (i.e. high/moderate/low);

(c)whether there is a public interest in disclosing the information or document to the Kamasaee because of its relevance to the proceeding (abbreviated as evidentiary relevance);

(d)the degree of any such evidentiary relevance (i.e. high/moderate/low); and

(e)which public interest predominates (abbreviated as outcome – either upheld full, upheld limited access, or dismissed, meaning that the document or information is to be disclosed).

10        I have adopted the approach referred to in Ruling No 6 to my determination of the foreign relations objections concerning the outstanding documents. 

11        As with the foreign relations objections determined in Ruling No 6, the outstanding documents include documents for which confidentiality is claimed because those documents fall within a particular class, and a number of documents where they are claimed to be immune from disclosure by reason of their contents.  As noted by Macaulay J in paragraph 10 of Ruling No 6:

Documents properly described as diplomatic cables would prima facie attract protection as members of a class.  To outweigh such public interest in preserving confidentiality and justify its disclosure, even under a limited access regime … would, in my judgment, require the presence of crucial importance to the plaintiff’s case. 

12        To interpolate here, I would interpret the term ‘crucial importance’ to be documents of such substantial probative or forensic value such that the failure of the Commonwealth to disclose the documents, at least under a limited access regime, would deprive the plaintiff of information which would substantially limit his ability to prove his case at trial, or are at least centrally relevant to an issue in the proceeding.  The position in the current application is somewhat complicated by the fact that the Commonwealth has not claimed confidentiality over diplomatic cables in their entirety.  The outstanding documents include documents where the Commonwealth is prepared to produce redacted versions of these documents, notwithstanding its objections to inspection of those documents by reason of the objections based upon their membership as a class.  I presume that this concession was made based upon the assessment of the legal representatives of the Commonwealth that the unredacted contents of the documents would satisfy the ‘crucial importance’ test.

13        Turning to the question of how the evidentiary relevance of the outstanding documents is to be assessed, the statement of claim is extensive, running to some 140 pages, excluding the table of contents and schedules.  There are a number of live issues as between the plaintiff and the Commonwealth, including:

(a)   whether the Commonwealth exercised effective control over the detention centre at Manus Island, such that the Commonwealth owed the plaintiff and other detainees a duty of care;

(b)   the risks associated with detention on Manus Island, and the Commonwealth’s knowledge of those risks, including the health and safety conditions of the detention centre, and the exacerbation of those risks by extended periods of detention;

(c)    the security of the plaintiff and other detainees on Manus Island, and the capacity of the contractors engaged at the detention centre and the PNG Mobile Squad to maintain a safe and secure environment at the detention centre; and

(d)  whether the Commonwealth knew, or ought to have known, that the detention of the plaintiff and the other detainees was illegal and/or unconstitutional under PNG law. 

14        The above is not an exhaustive list, but provides some framework against which to judge the potential forensic value of the outstanding documents.  Further, after the hearing on 9 December 2016, the solicitors for the plaintiff sent through copies of witness statements filed with respect to these issues, which illustrated the potential relevance of the outstanding documents. 

15        The Commonwealth relied upon the affidavit evidence of Daniel Sloper, the First Assistant Secretary of the Pacific Division of the Department of Foreign Affairs and Trade.  Mr Sloper has affirmed three affidavits in support of the Commonwealth’s position in relation to each of the applications concerning foreign relations objections.  In the course of the current application, the Commonwealth relied upon not only the affidavit of Mr Sloper affirmed on 21 October 2016, but also affidavits affirmed by him on 24 June 2016 and 24 August 2016, the latter two of which provide extensive commentary upon the nature and sensitivities of the relationship between Australia and PNG.  The plaintiff did not file and serve any affidavit evidence, or object to the evidence relied upon by the Commonwealth, but urged the Court to inspect the outstanding documents.  The Commonwealth concurred with this course of action. 

16        As noted by Macaulay J in Ruling No 4, given that Mr Sloper is well qualified to give relevant and informed evidence on the subject of the sensitivity of documents to Australia’s relationship with Papua New Guinea, there is a risk of the Court underestimating the sensitivity of certain information by virtue of not having the detailed and nuanced understanding that a person with Mr Sloper’s knowledge and experience would have.  Given the Court’s relative lack of experience in dealing with the diplomatic service network and foreign governments, the Court should be slow to adopt a different view to his concerning the significance of certain documents and the detrimental effect of certain documents or types of documents being disclosed. 

17        Further, I take Mr Sloper’s evidence as a caution about viewing the contents of the outstanding documents through Australian eyes: remarks and observations of a nature common to the ‘cut and thrust’ of the robust public debate with which we are familiar may be viewed more sensitively by PNG officials and the general public, especially if any perceived criticisms of PNG officials or institutions emanate from senior Australian Government officials. 

18        In his affidavit affirmed on 16 October 2016, Mr Sloper refers to the evidence given by him in his previous affidavits, and in a schedule to his affidavit, he provides a commentary on some of the outstanding documents.  He also refers back to the schedule to his second affidavit which also provides commentary on the remainder of the outstanding documents.  A substantial proportion of his commentary has been redacted in the versions of the affidavits served upon the plaintiff.  Therefore, I recognise that the plaintiff’s legal team is at a significant disadvantage in making submissions prior to and during the course of the hearing by reason of them not being able to see the outstanding documents themselves, or the detailed explanation as to the sensitivity and risks of disclosure of the outstanding documents. 

19        In his oral submissions at the hearing of 9 December 2016, counsel for the Commonwealth noted that the character and contents of certain documents are such that even disclosure under a limited access regime would create an unacceptable risk to the national interest.  He referred to the risk of inadvertent disclosure in the course of litigation whereby certain information could be disclosed in court simply by reason of a person who is authorised to inspect the documents inadvertently confusing information derived from documents disclosed under the limited access regime with information derived from other sources.  Further, in some cases, such as records of conversations between ministers and other senior officials, the very fact of disclosure, even to a small number of nominated lawyers, may harm Australia’s foreign relations, not just with PNG, but with other countries.  In particular, the fact that documents recording confidential communications between Australian ministers and senior officials and their foreign counterparts have been disclosed to persons outside senior levels of government, even to small numbers of people under strict obligations of confidence, could have a ‘chilling effect’ upon ministers and officials of other countries, and their willingness to be frank and open in their dealings with their Australian counterparts. 

20        Notwithstanding the disadvantage at which the plaintiff’s legal team is at in the hearing of the application, the plaintiff’s submissions provided a commentary on a number of the outstanding documents as to how the contents of the documents (or, as in the case of Part PII claims, the contents of the redacted portions of the documents) might be relevant to the issues in the proceeding. These submissions, Mr Sloper’s evidence and the Commonwealth’s submissions have all been taken into account when inspecting and in ruling upon the outstanding documents.  The results of this inspection are included at Schedule A to these reasons.  The determinations have been made on the basis that any documents to be produced, or portions of documents to be unredacted, will be produced under the limited access regime. 

21        I shall hear further from the parties on the form of orders and the question of costs.

---

SCHEDULE A

2.A.100.3628.1926       PNGDF Incident: JATF request: Ronnie Knight comments
[SEC-IN-CONFIDENCE: IMMIGRATION] Part PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  No

(d)      Degree:  N/A

(e)       Outcome.  ‘Balancing exercise’  not engaged – Part PII claim upheld.

3.A.100.3628.1931       PNGDF Manus accusations by Knight – PNGDF incident – draft cable.doc Part PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  No

(d)      Degree:  N/A

(e)       Outcome:  ‘Balancing Exercise’ not engaged – upheld Part PII claim.

4.A.100.3632.2967       Deputy Secretary Briefing PNG iJAC – Dec 13 updated.docx Part PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate

(e)Outcome:  Upheld Part PII – public interest in confidentiality outweighs public interest in disclosure.

5.A.100.3635.6642       CMO corro iom settlement.pdf Full PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate

(e)Outcome:  Upheld full  PII – public interest in confidentiality outweighs public interest in disclosure.

6.A.100.3635.6645  DG letter to CMO Rabura.pdf  Full PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate

(e)Outcome:  Upheld full PII – public interest in confidentiality clearly outweighs public interest in disclosure.

7.A.100.3649.7822       FW: 2 + 2 [sec+nonclassified]  Part PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate

(e)       Outcome:  Upheld Part PII.

9.A.100.3652.9379       FW: Incident in the Community [DLM+For Official-Use-Only]  Part PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld Part PII, save for the redaction on page 1, and the second redaction on page 2.

10.A.100.3652.9382       FW: Incident in the Community [DLM+For Official-Use-Only]  Part PII  (duplicate of document 9)

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld Part PII, save for the redaction on page 1, and the second redaction on page 2.

11.A.100.3657.8848       RE: UPDATE: Letter from Amnesty re government response to Manus reports [DLM+For-Official-Use-Only]  Part PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  No

(d)      Degree:  N/A

(e)Outcome:  ‘Balancing Exercise’ not engaged – upheld Part PII claim

12.A.100.3670.8194       20141202 – Memo to Pato re: possible January riots.doc.  Full PII

(a)       National Sensitivity:  Yes

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld full PII: public interest in confidentiality outweighs any public interest in disclosure .

13.      PM17257H    PNG Re-opening Manus Island Processing Centre   Full PII

(a)National Sensitivity:  Yes (diplomatic cable and record of discussion between ministers and officials)

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld full PII: public interest in confidentiality outweighs any public interest in disclosure.

14.      PM17434H    PNG: Manus: Police Response to Disturbances  Part PII

(a)       National Sensitivity:  Yes (diplomatic cable)

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld Part PII, save for the redactions to the paragraph headed ‘summary’, and to paragraph 8.

15.PM17447H     PNG: Manus: Recent arrivals at the Centre refuse processing  Part PII

(a)       National Sensitivity:  Yes (diplomatic cable)

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld Part PII, save for the first redaction on page 1, and the redactions to last sentence of paragraph 9, and to paragraph 11.

16.PM17918H    PNG: Manus: Proposal for a joint scoping mission on policing  Full PII

(a)       National Sensitivity:  Yes (diplomatic cable)

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  High

(e)Outcome:  Public interest in disclosure under limited access regime outweighs public interest in confidentiality.

17.PM18063H    PNG: Visit by Minister for Immigration and Border Protection, Hon Scott Morrison MP   Part PII

(a)National Sensitivity:  Yes (diplomatic cable and record of conversation between Ministers)

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld Part PII, save for redaction of the last sentence of paragraph under heading ‘summary’.

18.PM18074H    PNG: Manus: Record of Conversation: Mr Morrison meeting with Foreign and Immigration Minister – Pato and Attorney‑General Kua       Part PII  (effectively Full  PII over attachment to cable)

(a)National Sensitivity:  Yes (diplomatic cable and record of conversation between Ministers)

(b)      Degree:  High

(c)       Evidentiary Relevance:  Yes

(d)      Degree:  Moderate to High

(e)Outcome:  Upheld full PII, public interest in confidentiality outweighs public interest in disclosure.

SCHEDULE OF PARTIES

S CI 2014 6770

MAJID KARAMI KAMASAEE	Plaintiff
- and -
THE COMMONWEALTH OF AUSTRALIA	First Defendant
G4S AUSTRALIA PTY LTD (ABN 64 100 104 658)	Second Defendant
BROADSPECTRUM (AUSTRALIA) PTY LTD (ABN 11 093 114 553)	Third Defendant
INTERNATIONAL HEALTH AND MEDICAL SERVICES PTY LTD	Third Party – 1st Third Party Claim
G4S AUSTRALIA PTY LTD (ABN 64 100 104 658)	Third Party – 2nd Third Party Claim
BROADSPECTRUM (AUSTRALIA) PTY LTD (ABN 11 093 114 553)	Third Party – 2nd Third Party Claim
WILSON PROTECTIVE SERVICES PNG LIMITED	Third Party – 3rd Third Party Claim