State of South Australia v Milisits [2014] HCATrans 254 (14 November 2014)

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State of South Australia v Milisits [2014] HCATrans 254 (14 November 2014)

Last Updated: 17 November 2014

[2014] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A16 of 2014

B e t w e e n -

STATE OF SOUTH AUSTRALIA

Applicant

and

VILI MILISITS

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 NOVEMBER 2014, AT 11.21 AM

Copyright in the High Court of Australia

MR C.D. BLEBY SC: May it please the Court, I appear with my learned friend, MR T.N. GOLDING, for the applicant. (instructed by Crown Solicitor (SA))

MR T.D. BLACKBURN, SC: May it please the Court, I appear with my learned friend, MR J.L. WHITINGTON, for the respondent. (instructed by Griffins Lawyers)

FRENCH CJ: This is on the way to a trial.

MR BLEBY: It is, your Honour. That is, unfortunately, the nature of the beast with public interest immunity claims because as they are raised, generally, of course, the discovery.....they need to be determined finally in a very real sense and the fact that this is on its way to trial should not, in my respectful submission, stand in the way of a grant of special leave. If the matter end here, the matter is - the question is over and there is no further utility - - -

FRENCH CJ: Why should not we simply regard this as a case involving an evaluative judgment by the court below which you want to cavil with?

MR BLEBY: Because while it is certainly true that it is the case that if we regard questions of the law of public interest immunity not in issue in the sense of the big questions of principle, subordinate to that, when we are looking at questions of application there will be subordinate questions of principle when we come to consider various categories within which a claim is made.

By categories of course I do not mean a strict.....claim in the sense articulated in Sankey v Whitlam. What I am referring to, of course, is where there is a recognised descriptive category of public interest immunity claim where the court recognises or, in our respectful submission, in this case, fails to recognise what is the public interest and what is capable of informing the public interest. That is an albeit subordinate question of principle that arises properly from time to time in particular cases.

In this case, there is a particular category, that is, the question of disclosure of identifying material provided voluntarily in governmental surveys, on terms of confidentiality, which terms of confidentiality are backed up by parliamentary intention it be confidential - - -

FRENCH CJ: Subject to qualification, which begs the question.

MR BLEBY: It is only a qualification in this sense, your Honour. There is in the ordinary course, where there is a confidentiality provision such as it is an offence to disclose something, the court will still be able to consider in the ordinary exercise of its jurisdiction whether to order disclosure. Unless there is an ouster of that court’s jurisdiction, the mere fact that there is a subsection in our case provides specifically that unless the court or.....constituted tribunal orders disclosure, is really confirmatory of the court’s jurisdiction and adds very little, so it is not an exception - - -

FRENCH CJ: The survey certainly misrepresented the position to respondents by promising them total confidentiality.

MR BLEBY: That was one of the documents. The evidence is from Dr Koehler, which appears in the application book at page 229 at paragraph 5 that:

staff informed participants that all responses are confidential –

The words “total confidentiality” only appear in one document. Now, insofar of course as it might be said, well, a promise or representation of total confidentiality might mean.....the fact that a court can order disclosure really does no more, in my respectful submission, than fail to do what is really always the case, that is, it is confidential but a court can effectively override that - where it comes, and that is not an unusual position.

So too much should not be read, in my respectful submission, into the fact that the representation of confidentiality does not also say, unless a court otherwise orders, because it is a pretty unusual situation. It is not a case like the blood donor cases where the legislation specifically provides for positions where it is going to have to be disclosed, that is, where a person is accused of an offence, for filling in incorrect information on the certificate or where civil proceedings arise as a result, so it is qualitatively different in that sense.

So, for those reasons, if the Court pleases, it is not simply cavilling with the application of settled doctrine. It is moving into – in a particular category – the question of what is the public interest and what is capable of informing it. We can see that from paragraph 45 of the judgment, application book page 65, and the other judges agreed with Justice Gray. He accepted in theory that there may be information in certain medical surveys, disclosure of which would make the public less likely to respond in future. He did not accept that was even a possibility on this case and he did not accept that he could infer such a risk as the information was not sufficiently private or sensitive.

The question of whether the information, how private or sensitive it is, may well be relevant to the balancing exercise, but to say that is a determinate question on what is the public interest fails to engage the actual public interest in this case as we describe it at paragraph 17 of our summary of argument at application book 85; that is:

the governmental interest in the administration of public health through the timely and accurate flow of relevant information to facilitate the exercise of statutory powers and the fulfilment of statutory responsibilities.

There is a difficulty that comes up in paragraph 45 of his Honour’s judgment. It is that this is not addressing the question of a governmental interest as being affected, it is reducing it to the question of how sensitive or how private is the information to the individual. That is not the question of the public interest.

There are three real problems that attach to this. The first is that the interest, the actual governmental interest, is emasculated. Secondly, that conclusion at paragraph 45 is informed by what is really a highly problematic position as to what is capable of informing public interest in such a case. Thirdly, it – albeit by – I will say this respectfully – purporting to distinguish the case of Australian Statistician v Leighton Contractors which I refer to as the ABS Case – this is, in fact, in direct opposition to that intermediate appellate judgment of the Western Australian Court of Appeal.

FRENCH CJ: The South Australian government has put this into play by seeking to rely upon the epidemiological surveys. The other side of this is the administration of justice, is it not?

MR BLEBY: Yes, your Honour, and that may well be relevant in the balancing exercise. Ordinarily speaking, an epidemiological survey – take this case, for example – is a survey of, relevantly, people who have contracted salmonella and then a survey of their various eating habits, in particular, over a period of time.

Now, that is raw data and when we come to the balancing exercise certainly we need to weigh what could be added to the identities of those survey respondents to this data, of course, the South Australian government only ever having relied on the data itself from the epidemiological surveys. What is it about the identities of these respondents that could further the respondent’s case, but that is a matter for the balancing exercise. It does not - - -

FRENCH CJ: Well, the respondents might have something to say, for example, about how the survey was conducted.

MR BLEBY: Again, that is a question of the balancing exercise. If this boiled down, your Honour, to nothing more than a question of did the court get the balancing exercise right or wrong, I would be on very thin ground indeed. But the applicant’s complaint is a step before that and it is what – the complaint is essentially what has the Full Court.....used to give content to the very public interest on disclosure before we get to the balancing exercise.

There are four real matters of content to the public interest which we claim and the first is, of course, that the court said, well, there is no evidence here that there is any apprehension of retribution that would fall back to the survey respondents should their identities be disclosed. That is at paragraphs 42 and 48 of the Full Court. Of course, that inappropriately confines questions of drying up, questions of retribution, and that is not the law at all.

Questions of drying up have long been recognised as moving beyond questions of retribution and Aboriginal Sacred Sites Protection Authority v Maurice which is on our list is one such case. Possibilities of retribution were in play there. On the other hand, the question simply that these Aboriginal respondents would no longer co-operate with the information giving process was separately regarded as a relevant consideration, but in confining - - -

FRENCH CJ: The court simply made a finding of fact at 48 about the sufficiency of the evidence to indicate that disclosure would be:

likely to prejudice the provision of information to the Communicable Disease Control Branch in the future by other persons.

MR BLEBY: That was the finding at 48, your Honour, but it is informed, if you like, by a statement or an assumption of principle but the question that underlies that is there be retribution; that is erroneous.

FRENCH CJ: Well, that is an imagined – let us think of reasons why prejudice to the provision of future information might occur. Would it be fear of – no, that is excluded. Why is the court not entitled to reason in that way, because ultimately it is feeding into the public interest question, which is the future provision of information to the CDCB?

MR BLEBY: Yes, and it is limiting that question by consideration of retribution. Rather than saying, for example, that drying up may occur by reason of the fact that people do not like having the fact of their contracting – being identified as having contracted salmonella, the various symptoms that they experienced, some of which are quite unpleasant, as we will see from the forms, and then their eating history which may be informed by – that they may find embarrassing by reason of economic necessity, the fact that it discloses that they do not eat sufficient fruit and vegetables and eat a bad diet especially, for example, if they are responsible for children. These may all be things that could contribute to the question of drying up. Limited to retribution, limited to the public interest question, this question of retribution is incorrectly, in my respectful submission, narrow.

FRENCH CJ: So that is an argument about the sufficiency of the evidence to support the finding of fact.

MR BLEBY: Well, I say it goes further, with respect, because it starts at the premise from which the Full Court was reasoning as to what is capable of informing the public interest and - - -

KEANE J: You are also asking us to proceed on the basis that there is some sort of – there is some stigma attached by members of the public to having suffered salmonella. I mean, it is not immediately apparent that it is that kind of problem.

MR BLEBY: I am asking the Court not to foreclose it; not necessarily to accept it.

KEANE J: But is not the difficulty for you that his Honour’s findings at 45 and then 48 reflect the simple fact that, so far as the evidence was concerned, his Honour was not persuaded that there was that sort of risk?

MR BLEBY: At one level, yes, but the complaint is what sits below that, and if we take 48, for example, where we move to “The Balancing Exercise”, nowhere in “The Balancing Exercise” is there any account taken of the fact that Parliament has prescribed that this information be confidential, subject to - - -

KEANE J: Because at paragraph 45 his Honour found that there just is not sufficient in the evidence before the court to justify the conclusion that there is a real risk that the public is going to be dissuaded from co-operation in the future.

MR BLEBY: It is the premises below that I complain of. Findings of fact - - -

KEANE J: Those premises involve the evaluation of the evidence, do they not?

MR BLEBY: No, with respect, they involve accepting what is and what is not capable of giving content to the public interest. That is a different question. It is for that reason that we complain of the failure to give any credence to Parliament’s intention, be it limiting of the question as far as the

respondent community is concerned to the fact that participants are likely to be once off respondents. Now, again, this may well be something that informs the balancing exercise, but to say that that is something that gives content to the public interest is, in my respectful submission, erroneous. Finally, of course, there is the other premise that his Honour seems to work from, that this is really a question of privacy and sensitivity. The public interest in question is not about the privacy and sensitivity of the respondent, it is about the governmental function.

What the court has done – in my respectful submission, erroneously – is conflate issues that go to the balancing exercise at a point where it is still trying to establish what the public interest actually is. At paragraph 45, the description of public interest.....reductionist, whereas if we compare it, for example, with the careful description that was given by the Court of Appeal in the ABS Case, there was a full recognition of the governmental interest that was at stake.

If we start and say the public interest is simply related, effectively, to the questions of privacy and sensitivity of individuals, it is very unlikely that we will ever get to the balancing exercise. Indeed, the balancing exercise that is said to be undertaken from paragraph 48 is, with respect to the court, no balancing exercise at all, because the court has shut down the inquiry as to what is to be balanced in favour of non-disclosure before it ever gets to the balancing exercise. May it please the Court, those are our submissions.

FRENCH CJ: Thank you, Mr Bleby. We will not need to trouble you, Mr Blackburn.

In our opinion, this application concerns an evaluative judgment reached on the basis that the evidence adduced by the applicant did not support the conclusion of redaction which was required to protect the public interest. No question of principle of sufficient importance arises to warrant the grant of special leave. The application will be refused with costs.

The Court will now adjourn in order to enable the video link to Perth to be established.

AT 11.40 AM THE MATTER WAS CONCLUDED