Evidence excluded in the public interest

15.152 A claim of public interest immunity may be made under the common law and is also available under s 130 of the uniform Evidence Acts. Public interest immunity can be distinguished from privilege in that, in the case of privileges, only a party who can claim the privilege is able to invoke it. By contrast, a claim of public interest immunity can be made by the state, a non-governmental party to the proceedings, or by the court on its own motion.

15.153 The common law formulation of public interest immunity is stated in Sankey v Whitlam:

[T]he court will not order the production of a document, although relevant and other­wise admissible, if it would be injurious to the public interest to do so.[202]

15.154 Hunter, Cameron and Henning note that the grounds of what constitutes public interest under the common law are not closed, but generally relate to the interests of central government.[203] Claims for public interest immunity are most commonly made by the government in relation to Cabinet deliberations, high level advice to government, communications or negotiations between governments, national security, police investigation methods, and in relation to the activities of Australian Security and Intelligence Organisation (ASIO) officers, police informers, and other types of informers or covert operatives.[204] As noted below, s 130 of the uniform Evidence Acts applies the privilege to ‘matters of state’.

15.155 In its previous Evidence inquiry, the ALRC found no serious inadequacies in the common law approach to public interest immunity, and recommended as little interference with the supervisory role of the courts as possible.[205] However, the ALRC did recommend a change from the accepted common law formula that requires the judge, when determining whether to grant public interest immunity, to balance the competing interests at a general level.[206] The ALRC supported a more specific formula balancing ‘the nature of the injury which the nation or public service is likely to suffer, and the evidentiary value and importance of the documents in the particular litigation’.[207]

15.156 Section 130(1) substantially reflects the ALRC’s recommendations. It provides:

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confi­dentiality in relation to the information or document, the court may direct that the informa­tion or document not be adduced as evidence.

15.157 The ‘public interest’ in s 130 has been defined as requiring ‘a dimension that is governmental in character’.[208] In New South Wales v Ryan,[209] the Full Federal Court held that there was no relevant difference, in relation to a public interest immunity claim for Cabinet papers, between the common law, as determined in Sankey v Whitlam,[210] and the provisions of s 130.

15.158 The ALRC has recently examined the operation of s 130 in the context of the protection of classified and security sensitive information in court proceedings. In the Report Keeping Secrets (ALRC 98), it was estimated that public interest immunity arises as an issue in less than one per cent of cases across all courts.[211] The ALRC also found that the public interest immunity procedure worked effectively, although the procedures for invoking its use were thought by some to require clarification.[212]

15.159 In ALRC 98, the ALRC noted that one unresolved issue is whether the uniform Evidence Acts require a provision to enable a judge’s ruling on whether the immunity claim would be upheld to be obtained in advance of the trial (and to allow time for an appeal from that ruling).[213] At the time, the ALRC considered that the decision in Sankey v Whitlam—where reference is made to the duty to defer inspection to enable the Attorney-General to appeal—provided a precedent for raising challenges in this area, and no specific proposal was made.[214] The availability of advance rulings for evidentiary issues is discussed further in Chapter 16.

15.160 In ALRC 98, the ALRC recommended enhancing the regime for the protection of classified and security sensitive information through the enactment of specific procedures in a National Security Information Procedures Act rather than by amending s 130 of the Evidence Act 1995 (Cth).[215]

Submissions and consultations

15.161 In DP 69, the Commissions proposed that s 130 of the uniform Evidence Acts apply to pre-trial discovery and the production of documents in response to a subpoena and non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.[216]

15.162 There is support for the proposal.[217] The NSW PDO argues that it makes no sense for different rules for public interest immunity to apply pre-trial or in the course of the proceedings.[218] The AFP expresses a general view that a further inquiry into privilege and investigatory powers be undertaken before the privilege is extended.[219]

15.163 The Australian Government Solicitor (AGS) raises, in the context of the public interest immunity provisions, the issue of courts using information attracting public interest immunity in considering whether the applicant party to the proceeding has been, or is, accorded procedural fairness. Upholding the public interest immunity claim excludes the information from evidence.[220] However, having had access to the information, there are reported cases where the court has taken advantage of that access by considering the information, in effect, as evidence for the purpose of deciding whether the other party has been, or can be, accorded procedural fairness.[221]

15.164 In the view of the AGS, this type of case shows that, at the moment, there is a gap between the existing powers of a court under the Evidence Act in upholding a public interest immunity privilege claim and what might be necessary to do justice to the parties in a particular case. In particular, there is no provision of the Evidence Act that permits a court to have regard to material in adjudicating matters where material cannot be provided to the other party. Some courts currently purport to do this under their inherent powers.[222] The AGS does not suggest a particular amendment to the Evidence Act but merely points out that this gap exists. It notes that the provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), as they apply to what is defined as a ‘civil proceeding’, may have an important bearing on the extent of the gap, and any new provisions that might be needed to eliminate it.[223]

Commissions’ view

15.165 A claim for public interest immunity may be made at trial or in the course of pre-trial procedures.[224] In the interests of uniformity, the Commissions recommend extending the operation of s 130 to pre-trial proceedings. As s 130 is essentially a restatement of the common law, with a non-exhaustive formula indicating how the competing interests are to be balanced, this should not result in any significant change in practice. In the case of tribunals and investigative agencies, public interest immunity is often preserved by the inclusion of statutory provisions.[225] For the reasons discussed in Chapter 14, the Commissions have not included any draft provisions to implement this recommendation.

15.166 The Commissions note that the newly enacted National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) will create a different regime for the protection of national security information. That Act may replace use of s 130 as a method of protecting this type of information in a number of proceedings, potentially including the type noted by the AGS. Under that Act, a civil proceeding means any proceeding in a court of the Commonwealth, a state or territory, other than a criminal proceeding.[226] As noted above, not all public interest immunity claims relate to matters of national security. However, at this time, and in the absence of further comment on this issue, the Commissions do not recommend a change to s 130 to take account of this issue.

Recommendation 15–11 Section 130 of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.

[202]Sankey v Whitlam (1978) 142 CLR 1, 38 (Gibbs ACJ).

[203] J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.102].

[204] Ibid, [8.102].

[205] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [864].

[206] See Sankey v Whitlam (1978) 142 CLR 1.

[207] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [866], citing Alister v The Queen (1983) 50 ALR 41, 44–45.

[208]R v Young (1999) 46 NSWLR 681, 693.

[209]New South Wales v Ryan (1998) 101 LGERA 246. See also J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [130.40].

[210]Sankey v Whitlam (1978) 142 CLR 1.

[211] Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report 98 (2004), [8.192].

[212] Ibid, [8.192]–[8.205].

[213] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [868].

[214] Ibid, [868].

[215] Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report 98 (2004), [8.208]–[8.211]. The National Security Information (Criminal Proceedings) Act 2004 (Cth) commenced operation in December 2004.

[216] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–13.

[217] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[218] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[219] Australian Federal Police, Submission E 92, 20 September 2005,

[220] By virtue of s 134.

[221]Chu Sing Wun v The Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314; Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562.

[222]Nicopoulos v Commissioner for Corrective Service, [87]–[92].

[223] Australian Government Solicitor, Submission E 65, 29 August 2005.

[224] S McNicol, Law of Privilege (1992), 378.

[225]Australian Securities and Investments Commission Act 2001 (Cth) s 127(1); Administrative Appeals Tribunal Act 1975 (Cth) ss 28(2), (3), 36A–36D; S McNicol, Law of Privilege (1992), 378.

[226]National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 15A.