Anchorage Farming Pty Ltd & Ors v Chief Executive, Department of Natural Resources and Mines [2001] QLC 55 (2001) 22 QLCR 506

LAND COURT BRISBANE 13 JUNE 2001 Re: A00-17 - Claim for Public Interest Privilege In the matter of an appeal against a decision to refuse an application for amalgamation of Water Licences - Water Resources Act 1989. Appellants: Anchorage Farming Pty Ltd & Ors Respondent: Chief Executive, Department of Natural Resources and Mines D E C I S I O N The appellants in this matter have challenged the claim of the respondent that certain Cabinet Submissions and documentation said to be associated with those Submissions, should not be disclosed on the grounds of public interest privilege. In an affidavit of Mr TP Hogan, Director-General of the Department of Natural Resources and Mines, as it now is, the Cabinet Submissions and documentation over which privilege is claimed were identified as: (a) Cabinet Submission No. 1379 entitled "Draft Water Allocation and Management Plan (WAMP) of the Condamine-Balonne Basin"; (b) Cabinet Submission No. 1592 entitled "Draft Condamine-Balonne Water Allocation and Management Plan (WAMP)". Much of Mr Hogan's affidavit went to the fundamental principles which bind Cabinet, including his identification of the importance of the principle of collective responsibility. He deposed that, inter alia: "Para 36. I have examined the following documents in relation to the two Cabinet Submissions referred to in paragraph 5 of this affidavit, and I claim privilege in relation to these documents - (a) Cabinet Submissions, Ministerial correspondence regarding the Cabinet submissions and documents recording the Cabinet decisions (including drafts or copies of each of these types of documents); (b) Memoranda, letters and e-mails of officers of DNR&M to a Minister, another officer of DNR&M or of the Government regarding the Cabinet submissions and/or recording the Cabinet decisions (including drafts or copies of each of these types of documents); and [2001] QLC 55 -- 1 of 6 -- 2 (c) Briefing Notes by DNR&M officers for the use of the Minister and/or senior departmental officers in relation to the Cabinet submissions and Cabinet decisions. … Para 38. The documents set out in paragraph 36 of this affidavit - (a) form part of the process whereby submissions and memoranda to the Cabinet of the Government of Queensland are prepared for submission by ministers of the Crown to the Cabinet and whereby ministers are briefed in relation to such submissions and memoranda; (b) form part of the deliberative process of Cabinet; (c) record the decisions of Cabinet; and (d) form part of the process whereby the confidential decisions of Cabinet are referred to officers and representatives of DNR&M for information and implementation. … Para 41. The reasons why I say disclosure of these documents would be injurious to the public interest are that - (a) the process of deliberation undertaken by Cabinet and the Queensland Government in such current, still not finalised, and controversial matters should remain confidential; (b) the disclosure of such documents would inhibit the future decision making and policy development of the Cabinet and the Queensland Government; and (c) the disclosure of such documents would be in breach of the express policy of the Queensland Government and of the most fundamental principles underlying the Westminster system of government in many jurisdictions. Para 42. The disclosure of these documents would be contrary to the public interest in view of their nature, contents and class." It was argued by Counsel for the appellants that the draft WAMP and the policies underlying it form the foundation of the decision of the respondent to refuse the application for amalgamation of the licences. It is the appellants' opinion that it will be necessary for the Court to consider the validity of the reasoning which led to the draft WAMP. The reasons as are relevant to this matter, for the decision to refuse the application were as follows: -- 2 of 6 -- 3  "The application, if granted in full, would result in an increase in the daily physical diversion of water from the Balonne River system.  The application, if granted, would cause an increase in the long-term average diversion based on the mid-1999 level of development, since there would be additional daily diversion into the Anchorage storages once the Upson Downs storage was full and vice versa. Accordingly, in the long term this could contribute to further deterioration in riverine health and ecological outcomes as identified in the draft WAMP, and could impact on the access of other licensees to water." The appellants produced copies of discovered documents, the author of which was the chief executive's delegate as the decision maker in the refusal of the application for the above reasons. The appellants interpret those reasons as indicating that the delegate's previously held opinions were altered against their interests, by the rationale adopted in the draft WAMP. They say it is fundamental to the success of their case to know the rationale which changed the delegate's mind. They say that Mr Hogan's affidavit contains confirmation that the Government was interested to see that the planning process which led to the final formulation of the draft WAMP was open and transparent. They submit that it should follow that the rationale for the draft plan should also be transparent, there being no point in seeking confidentiality for the decision to release the draft WAMP for the stated purpose of promoting open discussion and debate to allow refinement, prior to finalisation. The appellants produced an affidavit by Mr Brimblecombe, a director and shareholder of the corporate applicants for the refused licence amendments, and a member since about July 2000 of the Ministerial Advisory Committee, established as part of the consultative process. Mr Brimblecombe deposed, inter alia, that members of the Committee have had regular discussions with and briefings from officers of the Department concerning the proposed provisions of the draft WAMP "and the reasoning which supported those provisions". He had always understood that the Departmental officers had fully exposed the policy issues which were relevant to the formulation of the draft WAMP and the reasons behind its provisions and it had never been suggested to him that maintenance of secrecy about the reasoning process had been an issue. Public Interest Privilege The more recent superior court findings on this subject have been founded on interpretation of the principles as enunciated in Sankey v. Whitlam (1978) 142 CLR 1. The general rule was stated by Gibbs ACJ at 38, in Sankey, as being "that the court will not order the production of a document, although relevant and otherwise -- 3 of 6 -- 4 admissible, if it would be injurious to the public interest to disclose it." His Honour continued: "However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer [1968] A.C., at p.940, as follows: 'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.' 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. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the documents should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies." Then, after further consideration of matters relating to state papers, His Honour said at 42, 43: "Similarly, state papers are not protected from disclosure because they are confidential or because the Minister has taken an oath not to reveal them. The question is whether the disclosure of the documents would be contrary to the public interest. Confidentiality is not a separate head of privilege but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [No. 2] [1974] A.C. 405 at p.433. For these reasons 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. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of -- 4 of 6 -- 5 documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made …" Application of Principles to Subject Matter In the balancing process, the first consideration is that Mr Hogan has read the various documents and has formed the opinion that they fall within a class, the production of which would be injurious to the public interest, and has objected to their production accordingly. That objection is in accordance with the general rule as described by Gibbs ACJ at p.38 in Sankey. The second consideration is that the appellants submit, in effect, "that the administration of justice will be frustrated by the withholding of the documents which must be produced if justice is to be done." (See Conway v. Rimmer (supra). For the balance to move in favour of disclosure, it is necessary, in my opinion, to consider whether justice would in fact be frustrated by the documents within the class described by Mr Hogan being withheld from production. Strong submissions have been made by Counsel for the appellants that disclosure would reveal, in a consolidated form, the rationale for the policies contained in the draft WAMP and the decision to release that document for public consultation. The appellants are of the opinion that the rationale is based on wrong interpretation of the facts and that misinterpretation, in turn, has led to the chief executive, through his delegate, changing an earlier opinion favourable to the appellants, as to the effects which the granting of the application might have. It seems clear that the decision to refuse the application related directly to the contents of the draft WAMP. I am not persuaded however, on the documentation provided to the Court, that the delegate had necessarily changed his mind as to the facts which had emerged from the inquiry which he caused to be made pursuant to s.43 of the Water Resources Act 1989. As far as the draft WAMP may have altered the delegate's opinion as to whether or not the application should be granted or refused, the reasoning behind the decision has been clearly exposed. Those reasons underlying the refusal include the acceptance that granting of the licence would result in the increase in the daily physical diversion of water; would cause an increase in the long-term average diversion based on the mid-1999 level of development and in the long-term this could contribute to further deterioration in riverine health and ecological outcomes as -- 5 of 6 -- 6 identified in the draft WAMP, and could impact on the access of other licensees to water. The success of the appellants' case would seem to rest with proof of the grounds of appeal which relate to the relevance of the reasoning, or lack of it, which led to the decision appealed against. As Counsel for the respondent submitted, the decision-maker will be a witness for the respondent in the proceedings. If the rationale behind the decision is then not fully exposed but should have been, that will more likely disadvantage the respondent rather than the appellants. The weight which should be placed on the rationale underlying the policies contained in the draft WAMP as released, for the purpose of promoting "open discussion and debate so that it may be refined to its finalisation", will need to be decided by this Court on relevant expert evidence and submissions. I am not persuaded that the need to produce the documents in the interests of justice, outweighs the general desirability that documents of that kind should not be disclosed in the public interest, as deposed by Mr Hogan. Order No order is made for production of the documents as identified in paragraph 5 of Mr Hogan's affidavit. RE WENCK MEMBER OF THE LAND COURT -- 6 of 6 --