Case: Gypsy Jokers Inc v Commissioner of Police (WA) [2008] HCA 4 ; (2008) 234 CLR 532
Outcome: cited
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. In seeking to establish an exceptional case the applicants' point out that they may be unable to make out their cases if the claim to immunity is upheld. The authorities establish that this consequence of the outcome of the process of balancing public interest immunity against the public interest, upon which the applicants rely, of having conventional access to evidentiary material, is not exceptional. Thus in the Scientology case at 76-77 Brennan J referred to the obstacles in a plaintiff's path in judicial review proceedings against the Director-General arising out of the restrictions imposed upon discovery in aid of proving what is and is not relevant to security. In the same case at 61 Mason J noted that a successful claim for privilege may exclude from consideration the very material on which a plaintiff hopes to base his argument. These observations of Mason J were quoted with approval by Gummow, Hayne, Heydon and Keifel JJ in Gypsy Jokers Inc 234 CLR at [24]. In that case at [5] Gleeson CJ said that the consequence of success of a claim for public interest immunity against disclosure of information is that the information is not available as evidence to be taken into account in deciding the outcome of judicial review proceedings. The Court would not be able to have regard to some, or perhaps any, of the information on which a public official's belief was based.