On 26 November 2012, the Full Federal Court handed down its decision in Spencer v Commonwealth of Australia [2012] FCAFC 169. This decision confirms that the public interest immunity in relation to Cabinet documents extends beyond those recording the deliberations of Cabinet and includes documents brought into existence for the purpose of preparing Cabinet decisions. The decision also illustrates the pitfalls for litigants in challenging public interest immunity and thus serves as a useful guide for maintaining future actions.

Background

In June 2007, the Applicant, Peter Spencer, commenced proceedings against the Commonwealth in relation to restrictions imposed on the clearing of vegetation on his farm by the Native Vegetation Act 1997 (NSW) and the Native Vegetation Act 2003 (NSW). The Applicant claimed that these restrictions amounted to an acquisition of property from him other than on just terms and were invalid under section 51(xxxi) of the Constitution.

In 2011, the Applicant filed an Amended Statement of Claim, contending that Intergovernmental agreements between the Commonwealth and NSW, both formal and informal, purported to acquire his property otherwise than on just terms. The primary judge ordered that the Commonwealth discover documents relating to this claim. In complying with this order, the Commonwealth claimed that certain documents were privileged from production on the grounds of public interest immunity.

These documents included:

  • documents prepared by the Department of Prime Minister and Cabinet (the Department) to brief the Prime Minister in advance of Cabinet meetings, and
  • documents created for the purpose of preparing Cabinet submissions.

The primary judge ordered that the Commonwealth serve and file evidence to maintain its public interest immunity claim in relation to a selection of the claimed documents. The parties accepted that the primary judge’s ruling in relation to the selected documents would be accepted as resolving the public interest immunity class claim as a whole.

During hearings on 20 April and 7 June 2012, the primary judge considered evidence from Dr Ian Watt, Secretary to the Department, who stated that the claimed documents, if produced, would enable inferences to be drawn about topics under Cabinet discussion. The Applicant chose not to cross-examine Dr Watt. On 7 June 2012, the primary judge upheld the claim for public interest immunity. The Applicant sought leave to appeal on the following grounds:

  • that the primary judge erred in characterising all the documents sought to be protected as Cabinet records
  • that the documents should have been subject to a contents claim, rather than a class claim for public interest immunity, and
  • that the primary judge erred in not inspecting the documents to determine whether they fell within the class claimed.

A single judge of the Federal Court ordered that the application for leave to appeal be heard and determined by a full bench of the Federal Court.

Judgment

The full bench of the Federal Court, consisting of Keane CJ, Dowsett and Jagot JJ, dismissed the application for leave to appeal, stating that the Applicant’s submissions “involved a fundamental misreading of the relevant authorities”.

The Full Court referred to Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 who stated that (at [30]): “papers brought into existence for the purpose of preparing a submission to Cabinet” belonged to “a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document”. Thus, prima facie, the documents in question were entitled to be subject to a class claim rather than a contents claim for public interest immunity.

Despite this, the Full Court stated that this immunity was not ‘absolute’. From Commonwealth v Northern Land Council (1993) 176 CLR 604, claims of public interest immunity must be “weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence”. This approach, however, is not automatic. The Full Court stressed that unless there is a “sufficient demand of justice” (at [33]) for disclosing the document, illustrated by its importance to resolving the proceedings, the prima facie position will prevail and there is no need for further inspection.

The Full Court rejected the Applicant’s submission that the mere fact that the Department discovered the documents illustrated sufficient importance to the Applicant’s case as to outweigh the public interest immunity claim. Further, the decision by the Applicant not to cross-examine Dr Watt at first instance ensured that the primary judge was entitled to give due weight to his assertion that the public interest would be placed in jeopardy by the production of the relevant documents. The Applicant’s alternate submission that Dr Watt’s evidence was unsatisfactory because of his position as the Secretary of the Department rather than the Minister was also rejected as inconsistent with Northern Land Council.

The Full Court concluded that, in the absence of further evidentiary foundation at first instance, the primary judge’s decision was not attended by sufficient doubt to warrant the grant of leave to appeal.

As a guide to future litigants, the Full Court gave positive treatment to public immunity principles expressed in State of New South Wales v Ryan (1998) 101 LGERA 246 at 250–251. Specifically, the Full Court stated that this summary adequately reflected the reasoning in Sankey v Whitlam and Northern Land Council.

Implications

The decision of the Full Federal Court serves to confirm that the prima facie public interest immunity attributed to Cabinet documents is broader than mere recordings of Cabinet deliberations. The immunity also includes documents prepared to brief Ministers and documents created to assist in the preparation of Cabinet submissions.

This decision further serves as a reminder to litigants that unless a “sufficient demand of justice” exists for disclosing Cabinet documents, a court is entitled not to inspect the documents and treat the prima facie position as upheld.

Finally, the decision gives positive treatment to statements in State of New South Wales v Ryan, which serve as a useful guide for litigants in understanding the scope of public interest immunity.