Chapter 19 - Relations with the executive government
Public interest
immunity in the courts
While the Houses of the Parliament are not obliged to follow the
criteria used by the courts in cases involving claims to public interest
immunity, parliamentary thinking has been influenced by changing judicial
practice.
For
many years the view of the courts was that a certificate from a minister or an
authorised senior public servant stating that certain information should not be
disclosed to a court in the public interest was accepted as conclusive.
Immunity could be claimed for a document either on the ground that it contained
particular information (for example, secret defence or diplomatic material)
whose disclosure would be against the public interest, or on the ground that it
belonged to a specific class of documents, such as cabinet documents and advice
from senior officials to ministers, which ought to be kept confidential
irrespective of the contents of any one document within that class. This view
was articulated in the judgment of Simon L.C. in the British case, Duncan v Cammell, Laird
and Co. (1942), which
included the following outline of the principles which should guide ministers
in considering whether to claim privilege:
In this connection, I do not think it
is out of place to indicate the sort of grounds which would not afford to the
Minister adequate justification for objecting to production. It is not a
sufficient ground that the documents are “State documents” or “official” or are
marked “confidential”. It would not be a good ground that, if they were
produced, the consequences might involve the department or the government in
parliamentary discussion or in public criticism, or might necessitate the
attendance as witnesses or otherwise of officials who have pressing duties
elsewhere. Neither would it be a good ground that production might tend to
expose a want of efficiency in the administration or tend to lay the Department
open to claims for compensation. In a word, it is not enough that the Minister
of the department does not want to have the documents produced. The Minister,
in deciding whether it is his duty to object, should bear these considerations
in mind, for he ought not to take the responsibility of withholding production
except in cases where the public interest would otherwise be damnified, for
example, where disclosure would be injurious to national defence, or to good
diplomatic relations, or where the practice of keeping a class of documents
secret is necessary for the proper functioning of the public service. When
these conditions are satisfied and the Minister feels it is his duty to deny
access to material which would otherwise be available, there is no question but
that the public interest must be preferred to any private consideration. The
present opinion is concerned only with the production of documents, but it
seems to me that the same principle must also apply to the exclusion of oral
evidence which, if given, would jeopardise the interest of the community. (Duncan
v Cammell, Laird and Co. 1942 AC 624 at 642-3.)
The attitude of the courts changed in 1968 when the House of Lords
held, in Conway v Rimmer AC 910, that the
minister’s certification was not conclusive in all cases and that it was for
the court to decide whether the immunity should be granted. The High Court of
Australia took a similar view in Sankey v Whitlam and others 1978 142 CLR 1, in which Stephen J. described crown
privilege as involving:
two principles which are of quite
general importance to our system of government and of justice. Such is the
vigour and breadth of these principles that each, given its fullest extent of
operation, will at its margins encounter and conflict with the other. ... These
principles, stated in their broadest form, each reflect different aspect of the
public weal. Because disclosure to the world at large of some information
concerning sensitive areas of government and administration may prejudice the
national interest there exists a public interest in preventing the curial
process from being made the means of any such disclosure. At the same time the
proper administration of justice, of prime importance in the national interest,
requires that evidence necessary if justice is to be done should be freely
available to those who litigate in our courts. (48-9)
Gibbs A.C.J. acknowledged that “it is inherent in the nature of things
that government at a high level cannot function without some degree of secrecy.
No Minister, or senior public servant, could effectively discharge the
responsibilities of his office if every document prepared to enable policies to
be formulated was liable to be made public”. He noted, however, that the object
of such protection from disclosure “is to ensure the proper working of
government, and not to protect Ministers and other servants of the Crown from
criticism, however intemperate or unfairly based” (40). He concluded: “It is in
all cases the duty of the court, and not the privilege of the executive
government, to decide whether a document will be produced or may be withheld”
(38). He further observed:
It is impossible to accept that the
public interest requires that all state papers should be kept secret for ever,
or until they are only of historical interest. In some cases the legitimate
need for secrecy will have ceased to exist after a short time has elapsed.
(41-2)
I consider that although there is a
class of documents whose members are entitled to protection from disclosure
irrespective of their contents, the protection is not absolute, and it does not
endure forever. The fundamental and governing principle is that documents in
the class may be withheld from production only when this is necessary in the
public interest. In a particular case the court must balance the general
desirability that documents of that kind should not be disclosed against the
need to produce them in the interests of justice. (43)
Justice Stephen observed that:
to
accord privilege to such documents as a matter of course is to come close to
conferring immunity from conviction upon those who might occupy or may have
occupied high offices of State if proceeded against in relation to their
conduct in those offices. (56)
If the defendants did engage in
criminal conduct, and the documents are excluded, a rule of evidence designed
to serve the public interest will instead have become a shield to protect
wrongdoing by Ministers in the execution of their office. (47)
In 1984 the High
Court ordered the production of Australian Security and Intelligence
Organisation (ASIO) documents for its inspection in a criminal trial, Alister
v the Queen 154 CLR 404. In The
Commonwealth v Northern Land Council 1993 176 CLR 604,
the High Court held that the Commonwealth should not have been ordered to
produce notebooks containing records of cabinet deliberations to legal
representatives of the Northern Land Council. The Court held that:
The production to the court of
documents recording cabinet deliberations should only be ordered in exceptional
circumstances which give rise to a significant likelihood that the public
interest in the proper administration of justice outweighs the very high public
interest in the confidentiality of such documents.
It is doubtful whether civil
proceedings will ever warrant the production of documents recording cabinet
deliberations upon a matter which remains current or controversial. In criminal
proceedings exceptional circumstances may exist if withholding the documents
would prevent a successful prosecution or impede the conduct of the defence.
(605)
It had long been argued that one class of documents, those concerned
with the policy-making process, should be absolutely protected from disclosure
because without such protection public servants might not be willing to proffer
advice fearlessly and candidly. In The Commonwealth v Northern Land Council the Court made the
following observations on this argument:
When immunity is claimed for Cabinet
documents as a class and not in reliance upon the particular contents, it is
generally upon the basis that disclosure would discourage candour on the part
of public officials in their communications with those responsible for making
policy decisions and would for that reason be against the public interest. The
discouragement of candour on the part of public officials has been questioned
as a sufficient, or even valid, basis upon which to claim immunity. On the
other hand, Lord Wilberforce
has expressed the view that, in recent years, this consideration has “received
an excessive dose of cold water”.(615)
In INP Consortium and others v John Fairfax Holdings and others (18/7/1994, not
reported) the Federal Court ordered documents for which public interest
immunity had been claimed by the Foreign Investment Review Board to be made
available to the legal representatives of one party to the proceedings. The
judge held that the balance between the need to keep certain documents
confidential in the public interest and the public interest in the due
administration of justice:
can be properly accommodated by the not
unusual course of ordering that the documents be kept confidential but made
available on a limited basis for inspection by the applicants’ legal
representatives.
In Canwest
and others v Treasurer of the Commonwealth (14/7/1997, not reported) the Federal
Court rejected a claim that advice to government should be immune from
production, and scorned the notion that advice would not be given freely unless
given in secret. This the court called “secrecy for its own sake”.
The claim often loosely made that
“cabinet documents” are immune from production in the courts is not supported
by recent judgments. Only documents which record or reveal the deliberations of
cabinet are immune (Commonwealth v Construction, Forestry, Mining and Energy
Union 2000 171 ALR 379; NTEIU v the Commonwealth 2001 111 FCR 583; see also Secretary, Department of
Infrastructure v Asher 2007 VSCA 272).
It is clear
that, in recent times, the courts have been less willing to accept claims that
the admission into evidence or disclosure of material would be detrimental to
the public interest, and have been unwilling to allow the executive government
to act as judge in its own cause by determining that question. Governments have
had to adjust to this approach by the courts and to accept that claims of
public interest immunity may not be sustained.
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