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Editors --- "Alcoota Aboriginal Corporation v Central Land Council - Case Summary" [2002] AUIndigLawRpr 5; (2002) 7(1) Australian Indigenous Law Reporter 20

Court and Tribunal Decisions – Australia

Alcoota Aboriginal Corporation v Central Land Council

Supreme Court of the Northern Territory (Martin CJ)

2 May 2001

(2001) 161 FLR 95; [2001] NTSC 30

Discovery and inspection — claim of privilege by Crown — privilege of Cabinet documents and similar papers — public interest immunity — inspection by the Court

Facts:

Alcoota Aboriginal Corporation (lessee of a pastoral lease), and a second plaintiff claiming rights as a traditional Aboriginal owner of the land, made complaints that the Central Land Council (‘the CLC’) and lawyers employed by it failed to protect their interests in regard to the making of a claim over the land pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The CLC denied the claim and issued subpoenas to the Chief Minister of the NT and other senior members and officers of the Government requiring production of documents dealing in whole or in part with either of the plaintiffs. The Crown claimed public interest immunity and legal professional privilege for the documents produced, and the CLC sought an order enabling inspection of all the documents.

Held:

1. Given that the NT Government is a body politic under the Crown, it is the responsibility of the Court to decide when and in what circumstances the confidentiality attaching to papers relating to the deliberations of Cabinet, and Cabinet decisions, lapses. Sankey v Whitlam (1878) 142 CLR 1 applied. [27]

2. The claim for public interest immunity of the documents as a class — that is, on the basis that they were Cabinet documents and documents discussing Cabinet determinations — was not supported by the description of the documents themselves. [32]

3. A judge would only go behind a claim of immunity and inspect the documents in exceptional circumstances. However, in this case inspection was appropriate because of doubts about the reasons for including some documents in the class for which immunity was claimed. Common-wealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 applied. [42]

4. Public interest immunity existed in relation to certain documents relating to the framing of government policy at a high level or Cabinet deliberations but the CLC could inspect those documents not so identified. [43]–[49]

5. Legal professional privilege did not attach to most of the subpoenaed documents because they were not produced for the dominant purpose of providing advice to the plaintiffs. [81], [84]