Federal Court foray into public interest immunity

(Update: A reader-thanks James- says the Full Court allowed an appeal by the State against this decision last Friday, that reasons have not been published yet, but the orders are available online. They relate only to parts of the decision by Justice Jagot concerning some documents claimed to be subject to legal professional privilege and do not refer to the public interest immunity aspects of the decision. As at 2 November no written judgments have been published but will flag any observations relevant to that issue when they appear. This in the Sydney Morning Herald on 13 November, and today 17 November an analysis of the Full Court decision, particularly relevant to the point in the post below, about privilege and instructions to Parliamentary Counsel.)

An unusual intervention in civil proceedings between other parties by the State of NSW/ Attorney General saw Justice Jagot of the Federal Court of Australia give relatively rare consideration to claims of public interest immunity. The decision is of interest also in the context of the NSW Freedom of Information Act, and the Government Information (Public Access) Act to commence next year, and the requirement in both instances, similar to the test in this case, to balance public interest considerations for and against disclosure of deliberative documents.

The substantive matter has been brought by Betfair against a statutory authority, Racing NSW, which is independent of the government and not subject to ministerial direction. Betfair contends that conditions imposed by Racing NSW on its approvals to publish NSW race field information and requiring it to pay 1.5% of turnover are invalid because they contravene the guarantee of free trade between States in s 92 of the Constitution. According to Betfair the standard turnover conditions are discriminatory against an inter-State trader (Betfair) and protectionist in favour of an intra-State trader (TAB Limited).

The documents in dispute in these discovery proceedings concerned matters leading up to the drafting of legislative amendments for these conditions.

Justice Jagot stated [2-5] the general rule that a court will not order the production of a document in legal proceedings, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it; that the public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered; that the court must weigh the competing elements of the public interest; and that a claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service.

The documents in question held by Racing NSW related to matters considered and discussed in a working group that included officers of the government agency, the Office of Liquor Gaming and Racing (OLGR ) and representatives of each of the four racing bodies in NSW, convened by OLGR for the purpose of assisting it in developing legislative drafting instructions to be provided to Parliamentary Counsel concerning amendments to the Racing Administration Act and the promulgation of the Racing Administration Amendment (Publication of Race Fields) Regulation.

Some documents were drafts of the Regulation with drafting notes ensuring that Parliamentary Counsel had correctly understood the drafting instructions; a considerable number were reports to board meetings of Racing NSW identifying Racing NSW’s perception of the position of the NSW Government and its own position; some comprised the provision of statistical and other information by Racing NSW to the OLGR; others involved legal advice and communications about legal advice for which there were separate claims for legal professional privilege; none were papers prepared for Cabinet although one document prepared by Racing NSW and submitted to its Board recorded the contents of a proposed minute to Cabinet which must have been disclosed to Racing NSW. There was evidence that the proceedings of the Working Group were confidential.

Justice Jagot rejected the argument, on behalf of Betfair that the immunity claim failed at first instance because it was for a novel class of documents that were not Cabinet documents. She accepted submissions on behalf of the Attorney General that the classes of documents attracting the immunity at least on a prima facie basis involve a spectrum from those at the highest level (Cabinet documents) to those at lower levels (such as reports of junior Departmental officials). The strength or weakness of the public interest protected (or the harm that might result from disclosure) does not affect the existence of the immunity. It affects the balancing exercise between that public interest and the interest of the party seeking access in order to litigate its claim. In any event, it is well-recognised that the classes of immunity are not closed (authorities deleted). She also accepted the doctrine involved three considerations: - (i) the harm that might flow from disclosure, (ii) the material assistance that disclosure might provide to the party seeking access, and (iii) weighing those conflicting interests. [19-20]

The evidence brought to support the claim by an officer of OLGR was that disclosure of documents concerning the deliberation, advice and discussions of the working group could undermine willingness of people and entities to be involved in similar processes in the future and their confidence that they could give frank and fearless advice to government. The officer stated that disclosure of drafting instructions to Parliamentary Counsel and draft legislation, as well as related documents concerning discussions and deliberations of public servants about those matters, could be harmful to the public interest for much the same reasons.[21]

Justice Jagot stated [24]

"Consistent with the submissions of the Attorney-General, I consider that there is a public interest in ensuring that those involved in advising governments about policy issues proposed to be embodied in legislation feel able to give frank and fearless advice uninhibited by concerns about future disclosure. The fact that this interest in candour or lack of inhibition has been subject to a certain degree of judicial scepticism over more recent years does not mean that this aspect of the public interest may be dismissed outright.

However the key issue was the balancing test which involved an assessment of the nature and extent of the harm to the public interest in the proper functioning of the executive and legislative branches of government by reason of disclosure, compared to the nature and extent of the harm to the public interest in the proper functioning of the judicial branch by ensuring that all relevant documents are available to a party seeking to litigate a claim.[24]

After considering the issues and examining the documents Justice Jagot concluded [43]

(1) The public interest affected by disclosure (that is, future candour and lack of inhibition in those advising the NSW Government) exists. Yet, on the facts of this particular case, this is a relatively weak factor. The documents concern legislative amendments to racing legislation discovered by statutory bodies independent of the NSW Government. The bodies in question are bound by their enabling legislation to provide independent advice. Their interests cannot be inferred to be aligned consistently with those of the NSW Government. The nature of their functions makes it inherently unlikely that they will be anything less than candid and uninhibited in their advice. Insofar as the documents disclose drafting queries by Parliamentary Counsel, the nature of that office also indicates that there is no real basis for a concern about future inhibition or lack of candour. Accordingly, the public interest affected by disclosure is a factor of relatively insignificant weight in the present case.

(2) The decision-making process disclosed by the documents is complete. The public interest in question protected by non-disclosure is limited to cases in the future the same as or sufficiently similar to the present case to justify its consideration. In weighing this factor regard must also be had to the bodies in question – Racing NSW and Parliamentary Counsel’s Office – and my satisfaction that their functions are incompatible with any acceptance of a real risk of a future lack of candour or inhibition in their advice to government. Accordingly, this factor is also of relatively insignificant weight in the present case.

(3) The issue in relation to which production is sought does not involve the freedom of an individual from potentially wrongful conviction. But it does involve an alleged breach of a fundamental constitutional guarantee by the bodies which discovered the documents. Accordingly, this is a material factor entitled to weight in the present case.

(4) Given the nature of the issues in dispute in the principal case, there is a real likelihood that production of the documents will affect the outcome. Accordingly, this is a material factor entitled to weight in the present case.

(5) There is a real likelihood of injustice to Betfair if the documents are not produced for a number of reasons. The documents are centrally relevant to its case. The documents are in the possession of the respondents and not sought on subpoena from the State of NSW. As Betfair said, Racing NSW, at least in respect of part of its function, is the industry representative for the NSW racing lobby. The interests of Racing NSW cannot be inferred to align consistently with that of the NSW Government. They certainly cannot be inferred to be consistent with the interests of Betfair. The legislative amendments the subject of the documents enabled Racing NSW to impose the very conditions that Betfair says infringes the constitutional guarantee to its detriment. The fact that the discussions were expressed to be confidential does not alter the significance of these circumstances. All of these circumstances indicate that there would be a substantial injustice to Betfair by reason of non-production.

At law, therefore, frank and candour are alive and well as a public interest consideration, although a claim for nondisclosure of documents or information on this ground will be weak where decisions have been taken, don't disclose information concerning Cabinet deliberations broadly defined, and are outweighed by the public interest considerations that favour disclosure. Other than the administration of justice considerations relevant to this decision, the GIPA Act lists various factors to be taken into account in favour of disclosure including where disclosure could be expected to promote open discussion of public affairs, enhance accountability, or contribute to positive and informed debate

The Attorney Generals intervention seeking to prevent discovery of documents on grounds of legal professional privilege also produced mixed results. While some claims succeeded, those relating to drafting instructions to Parliamentary Counsel were rejected in all but one instance.. Justice Jagot said she did not accept

"that the drafting of legislation pursuant to an instruction to do so, in and of itself, involves a retainer the dominant purpose of which is the giving of legal advice. More is required to attract legal advice privilege than a mere instruction to Parliamentary Counsel to draft legislation and the provision by Parliamentary Counsel of draft legislation (even if clarification is thereafter sought as to the intent of the instructions). In short, there must be some express or implied request for legal advice. In common with the cases referred to by Betfair where questions arose as to whether wills and the legal transaction documents were subject to legal professional privilege, an instruction to draft legislation does not necessarily carry with it an implied request for legal advice. The provision by Parliamentary Counsel of draft legislation is also not necessarily the provision of legal advice. Whether or not legal advice is involved largely depends on the nature and terms of the retainer (in this case, the drafting instructions).[50]

51. I have read the drafting instructions to Parliamentary Counsel. They are pure drafting instructions. They seek the preparation of an exposure draft of legislation for the purpose of consultation with the industry. They do not contain any request for legal advice. I have also considered the draft legislation discovered. Other than in one case, it is simply draft legislation with certain drafting notes and does not contain anything that purports to be legal advice. I am satisfied that, other than in one case explained below, the discovered documents comprising draft instructions to Parliamentary Counsel (both draft and final) and draft legislation were not brought into existence for the dominant purpose of obtaining legal advice. Accordingly, those documents cannot attract legal professional privilege."