Case: Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604
Outcome: applied
Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 , a public interest immunity case about documents recording cabinet deliberations, the Court said at 620: There was, therefore, no call for Jenkinson J to order that the documents be produced for inspection. But we would add that, even if there had been, the procedure of ordering production of documents for inspection by the legal representatives of one of the parties, even upon a restricted basis, before the claim for immunity had been decided by the court, was open to serious question. Whatever the safeguards, it represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the court before ordering production for inspection by a party. No doubt this may in some cases cast a heavy burden on the court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined. See also Alister v The Queen (1984) 154 CLR 404 at 469 and Gypsy Jokers Inc v Commissioner of Police (WA) [2008] HCA 4 ; (2008) 234 CLR 532 at [180] and [185] per Crennan J. Northern Land Council and Alister concerned inspection by the court of the documents over which privilege was claimed. In Gypsy Jokers Crennan J spoke more broadly of "information in documents", "certain material relied on for determination of a proceeding" and "confidential material before a court", which was not revealed to a party seeking it. In The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales dealt specifically with the disclosure of the contents of an affidavit tendered in support of a public interest immunity claim. There Samuels JA, Nagle CJ at CL and Cantor J said at 4: Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claims for privilege. We had and still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. Later at 5, after saying that the Court had read both documents in question and the affidavit in support of the claim for privilege, their Honours said: It seems to us that granted that it is now commonplace for judges to make a private inspection of documents in order to resolve a claim for privilege ..., it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. The Court then ordered that the affidavit remain sealed up with the papers on the ground that to disclose its contents might prejudice the claim for privilege. I was uncertain about the status of the "ASIO internal email dated 7 September 2005 (re: Parkin)", and called for the documents in order to determine whether it fell within the class claimed. I did this in reliance on what had been said in Northern Land Council 176 CLR at 617: In many so-called "class" cases a court may find it necessary to consider a document, inspecting it if necessary, in order to determine whether it does in truth fall into a class which attracts immunity. Having inspected the documents, my inference as to the Internal Minutes and Briefing Notes was confirmed. Each Internal Minute fits the description given by the respondent of a Final Appreciation. Each Briefing Note accords with his description of a DGBN. The "ASIO internal email dated 7 September 2005 (re: Parkin)" is a covering note transmitting the Internal Minute to the respondent. It contains a brief summary of the Internal Minute. It fits the respondent's description recorded at [21] that "Final Appreciation documents, and summaries thereof , are documents the disclosure of which is very likely to damage Australia's national security" (emphasis added). On the basis of the material in the respondent's affidavit, aided by my inspection of the documents, it is clear to me that the matters relied on by the applicants do not outweigh the public interest identified by the respondent. The contrast asserted by the applicants between Cabinet documents ('a clear class claim') and the respondent's description here (see [34]) is not helpful. That is because of the range of documents, with different levels of Cabinet connection, that may fall within the description but not necessarily qualify for immunity. At the top of the chain will be the Cabinet minutes considered in Northern Land Council [1993] HCA 24 ; 176 CLR 604. Lower down will be documents and communications between a Minster and the head of department relating to cabinet proceedings and material prepared for cabinet. Further down the chain are documents relating to the formation of government policy at a high level. Then will come other documents concerned with policy making including minutes by junior officials and correspondence with outside bodies. See S ankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 39. In Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 952 Lord Reid said of this last-mentioned category "I do not think that it is possible to limit such documents by any definition".