Court orders Commonwealth to produce cabinet documents in detention centre dispute

The Commonwealth may be forced to hand over cabinet-in-confidence documents the developers of the Wickham Point detention centre say will prove it welshed on a deal to keep the centre open until 2021.

The Wickham Point detention centre closed its doors in 2016.

THE Commonwealth may be forced to hand over cabinet-in-confidence documents the developers of the Wickham Point detention centre say will prove it welshed on a deal to keep the centre open until 2021.

Wickham Point Development launched an $88 million lawsuit against the Commonwealth in the Supreme Court in 2017, alleging the site’s closure the previous year reneged on a promise that would see the developers realise a return on their investment.

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The facility was built in 2011 to handle an influx of asylum seekers to Australia’s shores under the then Labor government that later dried up due to the Coalition’s hard line border security policies.

WPD claim assurances were given by both administrations that the facility would remain in operation.

Department of Prime Minister and Cabinet deputy secretary, Stephanie Foster, said in an affidavit that releasing the documents would be harmful to the cabinet system and Australia’s national interests.

“She expresses the view that the disclosure would undermine the cabinet process and adds that if the confidentiality of cabinet deliberations were undermined by the disclosure, the process of decision making and policy development in Australia would be significantly impaired,” Associate Justice Vince Luppino said.

PM & C assistant secretary Leonie McGregor told the court “significant damage to the public interest would result from the disclosure of the documents, particularly as the documents relate to the policy of immigration and border control”.

“She adds that aspects of that policy continue to be considered by the government and also alludes to the ‘chilling’ effect that disclosure of the documents would have on material prepared for future consideration by cabinet,” Justice Luppino said.

But WPD’s lawyer, Andrew Harris QC, argued that if the Commonwealth held high expectations of the number of arrivals, that would back up his client’s claim that the alleged promises were made.

“He argued that the topic can be broadly described as border protection and he conceded that was current and controversial,” Justice Luppino said.

“However, the issue is the expected numbers of irregular maritime arrivals at an earlier time and that is now a historical matter which is not current or controversial. In that way he argued that the possible damage by disclosure is minimised.”

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In ordering the government to provide the documents to the court on a confidential basis, Justice Luppino said while releasing them “could be injurious to the public interest” the information they contained could potentially support WPD’s case.

“I consider that documents which might reveal the defendant’s expectations as to the likely numbers of irregular maritime arrivals are very material to the plaintiff’s case,” he said.

“It seems to be appropriate to at least inspect the documents for the fair administration of justice so as to at least conduct a fair balancing exercise.”

The government’s lawyers will still have another chance to convince Justice Luppino not to hand the documents over to WPD before he makes a final ruling.