Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: applied
an objection to the production of documents in answer to a subpoena is based upon a claim of public interest immunity, the usual practice&#8212;established many years ago&#8212;has been for the grounds of the claim to be set out and explained in an affidavit made by either the Minister who is the political head of the particular department concerned or the Secretary of that department ( Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 43). The weight to be afforded to that affidavit is governed to some degree by the extent of the knowledge which the deponent possesses concerning the documents which are the subject of the claim ( Sankey v Whitlam 142 CLR at 44). The knowledge of those documents which must be considered comprises not only knowledge of the contents of the documents but also knowledge of the circumstances in which they came into existence. When the claim is based partly or wholly on national security grounds, very considerable weight must be given to the views of the responsible Minister or the permanent head. In the present case, because we live in dangerous times and matters of national security are at the forefront of the ONA's responsibilities, very considerable weight must be given to the views of the Director-General expressed, as they were, on his oath ( Alister v The Queen (1984) 154 CLR 404 at 435). The Director-General of the ONA has read all of the 62 reports. He has also read the confidential affidavits (one, as sworn, and the other in final draft form, but not yet sworn). It is apparent from the terms of his affidavits that the Director-General has also relied upon information conveyed to him by his staff as to the circumstances in which the Cole distillation came into existence. It is generally to be expected in cases such as the present that the relevant deponent will testify that he has read all of the documents for which the immunity is claimed ( Sankey v Whitlam 142 CLR at 43 44; 96 and 108). The deponent will also need to explain why the disclosure of the documents is detrimental to the proper functioning of the Executive Government and of the Public Service (if appropriate). At [27] above, I have summarised the bases upon which the ONA seeks to claim public interest immunity in respect of the 62 reports and the distribution lists. Claims of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617). In Commonwealth v Northern Land Council (1991) 30 FCR 1 at 31, a Full Court of this Court said: 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. Counsel for AWB submitted that, given that the Cole distillation was in the public domain, it was unreal for the ONA to press its claim for public interest immunity in respect of these documents. It is not a question of waiver, for public interest immunity cannot be waived. However, once the contents or the substance of the contents of a document have been disclosed, there is no longer any reason to deny to the Court access to that document if it provides evidence that is relevant and otherwise admissible ( Sankey v Whitlam 142 CLR at 45). The public interest in non-disclosure would either be much reduced or destroyed by the prior publication of the contents of the document ( Sankey v Whitlam 142 CLR at 64). The only argument or ground advanced by the ONA which might survive the fact that the Cole distillation has been made public is the argument advanced under the heading "mosaic analysis". I do not think that the other two grounds advanced by the ONA now have much weight in light of the fact that the substance of the 15 redacted reports was disclosed to the public at large in the Cole distillation. Any angst felt by Australia's foreign intelligence partners will not be as great as it was in 2006 and, given the way in which the Cole distillation was compiled, there is little chance that production to the Court of the 15 redacted reports and the distribution lists relevant to those reports will harm national security. The ONA submitted that, notwithstanding the publication of the Cole distillation, the revelation of the actual contents of the redacted 15 reports shown to Mr Cole may well lead to a mosaic analysis being carried out by undesirables, thus threatening Australia's security and its national interests in the manner adumbrated by the Director-General of the ONA and by the deponents of the confidential affidavits. I do not accept this submission at the moment. Production to the Court for the purposes of inspection and further consideration of the ONA's claims cannot have the effect suggested by the ONA. Nor do I accept that I should further limit production by reference to a shorter period of time than that covered by the 15 reports.