Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: followed
Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 66-67, Stephen J considered whether Loan Council documents in issue might be the subject of redaction or masking. The informant had sought the production of the Loan Council documents for the purpose of establishing that the claimed proposed borrowing of $4 billion was not the subject of Loan Council consent. Stephen J said at 67: "At the conclusion of argument it seemed to me scarcely credible that an inspection of the papers would not reveal the practicability of extracting material in itself quite innocuous, consisting perhaps of no more than the figure of approved Commonwealth borrowings not in fact availed of, which would provide evidence of this negative character. Were production of such material, and of such material only, to be permitted, no public interest would be prejudiced and at the same time the course of justice would not be impeded unnecessarily. Authority for such a course is to be found in Conway v Rimmer . Lord Reid (35), contemplated that part only of a document might properly be withheld, according to it alone privilege from production: Lord Pearce said (36), that the court might call for and itself inspect a document and then, if 'part of a document is innocuous but part is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this will not give a distorted or misleading impression'. A statement of the outcome of the inspection of the Loan Council documents which has in fact been undertaken by this Court appears at the end of the several statements of reasons for judgment in this case." In the result, the High Court undertook an inspection of the Loan Council documents and ordered disclosure of those parts that disclosed only the figure of borrowing approved by the Commonwealth. As I have noted earlier (par [8] above) ASIC accepts that, subject to any appeal against my ruling on 28 April 2009, the following documents cannot be the subject of objection to it on the ground of PII, namely 1, 5, 8, 9, 10, 13, 15, 16, 20, 21, 23, 24, 25, 28, 29, 30, 35 and 36. ASIC made a similar submission in relation to the documents numbered 4, 6, 7, 11, 12, 14, 18, 19, 22, 26, 27, 31 and 32 in a redacted or masked form. I have considered the redaction or masking proposed by ASIC in relation to those documents and have also had regard to the confidential affidavits filed by ASIC which bear upon the redaction and masking of these documents. I have reached the conclusion that the redaction and masking undertaken by ASIC goes beyond the redaction and masking which are necessary in order to ensure that the documents do not have a tendency to disclose the identity of an informer or informers to ASIC. I set out in confidential Appendix A to these reasons the redaction and masking of these documents which I consider should be undertaken. This appendix will only be made available to ASIC's legal advisers and the deponents of its affidavits for the purpose of determining the form of any public non-confidential order which I should make. Adopting and adapting the observation and words of Stephen J in Sankey v Whitlam (supra), the applicants submitted that it "seemed scarcely credible" that an inspection of the forty-one transcripts would not reveal the practicability of extracting material in itself quite innocuous without revealing or tending to reveal the identity of any informer. I have considered whether I should accept that submission and undertake the exercise of seeking to redact and mask parts of the forty-one transcripts so as to leave those parts which are, in general terms, innocuous, on the basis that they do not identify or tend to identify an informer or informers. I have reached the conclusion that I should not undertake this task for the following reasons. The transcripts record the evidence of twenty-three witnesses. The identity, occupation, role, employment title and employer of each of them is disclosed in the transcripts. If I were to redact or mask the transcripts so as to leave the "innocuous" parts so that the names, occupations, roles, employment titles and employers of the various witnesses and the organisation or company which employs them or with which they were involved were still disclosed, the applicants' legal advisers would still be left with material by which a shrewd idea would be conveyed as to the identity of an informer or informers other than Mr Cummins.