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High Court of Australia |
A. v. HAYDEN [1984] HCA 67; (1984) 156 CLR 532
Contract - Injunction - Criminal Law
High Court of Australia
Gibbs C.J. (1), Mason (1), Murphy (1), Wilson (1), Brennan (1), Deane (1) and
Dawson (1) JJ.
CATCHWORDS
Contract - Public policy - Contract of employment - Employment by Commonwealth - Term binding Commonwealth not to disclose name of employee or any act performed in course of employment - Whether contrary to public interest and national security - Suspicion that criminal offences committed in course of employment - Security training exercise - Australian Secret Intelligence Service.Injunction - Criminal Law - Suspected breach - Confidential information - Public interest - Prejudice to national security - Functions of executive government.
Criminal Law - Defence of superior orders - Whether maintainable.
HEARING
1984, July 31, August 1, November 6. 6:11:1984DECISION
GIBBS C.J. This case raises an unusual and difficult question. It is whether the Commonwealth is entitled to disclose the identity of the plaintiffs, whose names have so far not been revealed, to the Chief Commissioner of Police for Victoria, one of whose senior officers has deposed that he believes that the participants in an incident at the Sheraton Hotel in Melbourne on 30 November 1983 (who were in fact the plaintiffs) committed breaches of the criminal law, and that it is essential that he identifies the participants in order to investigate properly whether the crimes were committed and to apprehend and charge the offenders. Stated in that way, the question, although unusual, would appear an easy one to answer. The difficulty arises from a number of circumstances to which I shall shortly refer. Before doing so, I should say, by way of explanation, that when the alleged offences occurred the plaintiffs were taking part, at the direction of the Commonwealth, in a training exercise devised by the Australian Secret Intelligence Service ("ASIS"), an organization established by the executive government of the Commonwealth for purposes which include the collection of foreign intelligence by clandestine means and the maintenance of a capability for covert action in wartime or other special circumstances. Four of the plaintiffs (F., H., I. and J.) were employed by the Commonwealth as officers of ASIS and six (A., B., C., D., E. and G.) had temporarily left their civilian employment to undergo training organized by ASIS. The other plaintiff, K., was a member of the Australian Army and had the duty of providing training support for ASIS personnel. The object of the exercise in which they were engaged was stated to be the rescue of one of the participants, who was playing the role of hostage, from a room on the tenth floor of the hotel where he was held by two other participants who were playing the part of guards. The plan was to try to trick the guards into opening the door of the room, and, if that failed, to break down the door by force. The plaintiffs (other than K.) were supplied by an ASIS officer with firearms and blank ammunition. With the approval of that officer they purchased a sledge-hammer. In the course of the exercise, one of the participants, accompanied by four others, used the sledge-hammer to break open a door to the room in which the so-called hostage was held. When the manager of the hotel went to investigate what was happening, he was met by a participant wearing a mask; the two men entered the lift from which the manager had emerged and jostled one another until the lift arrived at the ground floor, the participant telling the manager that nobody would be hurt. Other participants, most wearing party masks, emerged from the lift at the ground floor level and made their way past guests and staff to a waiting car. They carried firearms, including a pistol and two sub-machine guns. K. played only a minor part in this exercise; he waited, unarmed, in the foyer of the hotel to observe the reactions of other persons in the hotel, and knew nothing of the events on the tenth floor or in the lift.2. The fact that this foolish exercise was carried out under the authority of the Commonwealth would in itself provide no reason in law why the Commonwealth should not disclose the identities of the plaintiffs to the Chief Commissioner. It is fundamental to our legal system that the executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer.
3. There are, however, three matters in particular which create the difficulty in the present case. In the first place, it was a term of the contract of employment between each of the plaintiffs except K. and the Commonwealth that "his identity would be kept confidential, and in particular, except insofar as might be necessary for the conduct of the functions of ASIS, there would not be disclosed to any person (a) the name, address, occupation or any other particular identifying or likely to identify him as a person who worked for ASIS; (b) any act or thing done by him in the course of his training or work for ASIS". K. claims that the Commonwealth owed him a similar obligation. During a course of instruction in ASIS procedures, structure and organization, he was advised by an ASIS officer, in terms identical with those of the contract to which I have just referred, that his identity would be kept confidential and, in particular, that there would not be disclosed to any person the matters specified in the contractual term. H., I. and J. claimed that in their contracts, in addition to the express contractual term, there was an implied term, but that is denied by the defendants.
4. Secondly, it is agreed to be a fact that the disclosure to foreign intelligence services of the identity of the plaintiffs would be prejudicial to the international and national security of Australia and that if the names of the plaintiffs were made public this also would be prejudicial to the national and international security of Australia. However, the Chief Commissioner has agreed to take any measures necessary to preserve the confidentiality of the identity of the participants "so far as practicable to do so in the conduct of his investigation of breaches of the criminal law alleged to have arisen out of the exercise and in the conduct of any prosecution arising out of such investigation". Statutes have been passed by both Victoria and the Commonwealth with a view to preserving such confidentiality. The Criminal Proceedings Act 1984 (Vict.) empowers the courts of that State to make orders for confidentiality in criminal proceedings arising out of the incident at the Sheraton Hotel and the Judiciary Amendment Act 1984 (Cth) renders such orders enforceable throughout the Commonwealth. It is a question, on which opinions may differ, whether this legislation will be effective. Apart from the fact that it is naturally left to the discretion of the Victorian courts to decide whether to make the orders, it may well be doubted whether it would be beyond the capacity of a determined foreign intelligence agency to discover the identity of the plaintiffs, once police investigations and subsequent prosecutions were set in train. It should be added that it is alleged that consequences of the most serious kind - the nature of which is more particularly mentioned in a part of the record to which, at the request of the Commonwealth, access has been prohibited without the approval of the Court - might ensue to the plaintiffs and other persons if the names of the plaintiffs were disclosed.
5. Thirdly, it seems most unlikely that all of the plaintiffs committed offences in the course of the exercise. For instance, nothing that is stated in the cases suggests that K. was guilty of even the most trivial offence. It is agreed as a fact that each of A., B., C., D., E., G. and K. held an honest belief that anything he was instructed or authorized to do by ASIS had the authority of the Australian Government, and that he was authorized to carry weapons and to break down the door. Each of those plaintiffs alleges that he had an honest belief that ASIS, before instructing and authorizing them to do any act or thing, would obtain any authority or consent necessary to make such act or thing lawful. Each plaintiff, except H., I. and J., alleges that every act or thing done in the course of the exercise was lawful and that he has committed no breach of the criminal law and that there is no admissible evidence that he committed a criminal offence. It is not clear whether the omission of this allegation from the stated case in the matter of H., I. and J. was deliberate, for those plaintiffs do make that assertion in their statements of claim. The Deputy Commissioner (Operations), Victoria Police Force, has made a formidable list of crimes which he believes to have been committed. The list may be viewed with a little scepticism; it appears that the Deputy Commissioner has thought of every possible offence which might have been committed, placing the most serious interpretation on everything that occurred. However, even if some of the plaintiffs committed some of the offences listed by the Deputy Commissioner, it is clear that not all the plaintiffs committed every alleged offence: for example, five at most were responsible for breaking down the door. Indeed, as I have said, it is improbable that every plaintiff committed an offence, and it is disputed that any did.
6. It is not suggested that the Commonwealth is required, in the sense of legally obliged, to disclose the names to the police. The question is whether it may do so, having regard to the contracts into which it has entered and to the considerations of national security which have been mentioned. The first submission advanced on behalf of the defendants was that the contractual term, which on its face bound the Commonwealth not to disclose the identity of the plaintiffs, must be read down to make it subject to an exception permitting disclosure in the present circumstances. That argument cannot be accepted. The cases state what was agreed by the parties to be the term of the contract. It is an ultimate fact, which the Court is obliged to accept, that the term of the contract was expressed in the words which I have quoted. We can of course determine the meaning of the term as so expressed, but we cannot engage in a process of construction that would result in a departure from the ordinary meaning of those words, since to do so it would be necessary for us to be aware of the context provided by the contract as a whole, in the light of which each provision in the contract has to be understood. However we do not know what other terms the contract contained. We must therefore give the words of the term their ordinary meaning, which binds the Commonwealth to keep the identity of the plaintiffs confidential in all circumstances.
7. No doubt this absolute contractual obligation, like any other, would be subject to, and overridden by, the duty of the officers of the Commonwealth to comply with the law of the land: see Parry-Jones v. Law Society (1969) 1 Ch 1, at pp 7, 9; Smorgon v. Australia and New Zealand Banking Group Ltd. [1976] HCA 53; (1976) 134 CLR 475, at p 488. But, as I have already indicated, it is not suggested that the law imposes on the Commonwealth or its officers any positive legal duty to disclose to the police the identity of the plaintiffs.
8. It was however argued on behalf of the defendants that the contractual term was unenforceable, for two reasons. The first of these reasons was that the term operates to impose an invalid fetter upon executive action in a matter of public interest. Of course any contract which obliges the government or an agency of the government to take or refrain from taking action of any kind operates to some extent to fetter executive power, but, as Aickin J. said in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54, at p 113, "It is plain that even without statutory authority the Commonwealth in the exercise of its executive power may enter into binding contracts affecting its future action." The suggestion made by Rowlatt J. in Rederiaktiebolaget Amphitrite v. The King (1921) 3 KB 500, at p 503, that the government cannot by contract fetter its executive action in matters which concern the welfare of the State is too wide. It is true that speaking generally the government cannot by contract disable itself or its officers from performing a duty cast on it by statute or from freely exercising a statutory power or discretion: see per Mason J. in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth, at pp 74-75. The same principle may apply when the Crown is entrusted with powers under the prerogative: Commissioners of Crown Lands v. Page (1960) 2 QB 274, at p 291. However this principle has no application to the present case, where there exists no relevant power or duty granted or imposed by statute or available under the prerogative, and the Commonwealth seeks to do what any citizen might ordinarily do, i.e., pass on information in its possession.
9. The second reason advanced in support of the argument that the contractual term is unenforceable is that the term has a tendency to obstruct the administration of justice and is therefore contrary to public policy. There is no doubt that a contract which tends to pervert or obstruct the course of justice is against public policy. It is quite unnecessary for present purposes to consider whether it is right to say that such a contract is "illegal and void" or rather "unenforceable": see the discussion by Windeyer J. in Brooks v. Burns Philp Trustee Co. Ltd. [1969] HCA 4; (1969) 121 CLR 432, at pp 458-461. In the present case the contractual undertaking, on its face, reveals not the slightest tendency to affect the course of justice. The covenant itself does not reveal the purpose of suppressing evidence, hindering the proper investigation of crime or concealing the fact that anyone has broken the law, and if carried out according to its terms would not necessarily have that effect, since, looking at the matter at the time when the contract was made, no criminal act might ever be committed or contemplated by the plaintiffs. The contracts were entered into by the Commonwealth with persons who, we were told, were actuated by high motives and who were joining a service whose functions are important to society and which could not properly operate unless the identity of its agents was kept secret. An agreement to keep the identity of such persons secret is not contrary to public policy, unless, of course, its actual purpose was to shield one of the parties from liability for a breach of the law. Where a contract is not unlawful on its face and is capable of performance without any violation of the law, it will be enforceable unless it is proved that one or both of the parties intended to perform it in an illegal manner or to effect an illegal purpose: Waugh v. Morris (1873) LR 8 QB 202; Hutchinson v. Scott [1905] HCA 59; (1905) 3 CLR 359; Patterson v. Lowe (1955) St R Qd 437, at p 444. The mere possibility that the contract in the present case might, if performed, obstruct the course of justice was not enough to render it invalid. There is no proof that the parties intended the contract to have any effect on the administration of justice. The contractual term was a valid one.
10. The defendants in argument made reference to the decision of the Court of Appeal in Howard v. Odhams Press, Ld. (1938) 1 KB 1, but that case is not authority for any different view. In that case the defendant promised not to divulge information given to him by the plaintiff relating to frauds which had been committed and other frauds which were planned. Greene L.J. (with whom Greer L.J. agreed on this point: see p.22) accepted the correctness of the view expressed in Weld-Blundell v. Stephens (1919) 1 KB 520, at p 528, that a contract not to disclose the fact that a crime has been committed is not necessarily either illegal or contrary to public policy: see at p.41. It was however held that the agreement in that case to keep the information secret was invalid as being against public policy because it purported to prevent the defendant from giving information to third parties which might assist them to secure the convictions of persons who had defrauded them in the past or to prevent the commission of frauds against them in the future; see especially at p 42. Howard v. Odhams Press, Ld. was the case of an agreement which could not be performed without concealing the frauds to which it related, unlike the agreement in the present case, which at the time when it was made did not relate, and might never have related, to any crime or misconduct.
11. The fact that the contractual term is not in itself invalid is not however the end of the matter. The Court will refuse to exercise its discretion in favour of granting equitable relief, such as an injunction, to enforce an obligation of confidentiality when the consequence would be to prevent the disclosure of criminality which in all the circumstances it would be in the public interest to reveal. In Gartside v. Outram (1856) 26 LJ Ch 113 it was held that it would be an answer to a bill for an injunction to restrain the defendant, a former servant, from disclosing materials obtained in the course of his employment, that the materials showed that the business had been fraudulently conducted. Wood V.C. said at p.114, that "there is no confidence as to the disclosure of iniquity". This decision was explained by two members of the Court of Appeal in Weld-Blundell v. Stephens, at pp 533-534, 547-548, as one in which the Court declined to grant equitable relief because the plaintiff had not come with clean hands.
12. The concept of "iniquity", for the purposes of the rule stated by Wood V.C., has been expanded to include misconduct generally: see Initial Services Ltd. v. Putterill (1968) 1 QB 396, at 405; and British Steel Corporation v. Granada Television Ltd. (1981) AC 1096, at pp 1169, 1201. Indeed in Woodward v. Hutchins (1977) 1 WLR 760 it seems to have been held that the public interest in knowing the truth can prevail over an obligation to maintain confidence even when the person entitled to have the confidence kept has not been guilty of any misconduct. It is not necessary for me to consider the authorities which led to that decision - they are reviewed by Rath J. in Castrol Australia Pty. Ltd. v. Emtech Associates Pty. Ltd. (1980) 33 ALR 31, at pp 53-57; see also Lion Laboratories Ltd. v. Evans (1984) 3 WLR 539. We are not here concerned with any extension of the so-called "iniquity" rule beyond the case in which the material sought to be disclosed is said to reveal that crimes have been committed.
13. The passages from Weld-Blundell v. Stephens and Howard v. Odhams Press, Ld. to which I have already referred show that in those cases the view was taken that an agreement not to disclose the fact that a crime has been committed is not necessarily contrary to public policy. In Allied Mills Industries Pty. Ltd. v. Trade Practices Commission (1981) 34 ALR 105, Sheppard J., after a careful review of the authorities, concluded, at p.141, that "the public interest in the disclosure ... of iniquity will always outweigh the public interest in the preservation of private and confidential information". That is too broad a statement, unless "iniquity" is confined to mean serious crime. The public interest does not, in every case, require the disclosure of the fact that a criminal offence, however trivial, has been committed. And the administration of justice, although a fundamental public interest, is not an exclusive public interest: per Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171, at p 231. Take an example from the present case. Suppose that the participant who entered the lift with the manager did nothing that could possibly amount to the commission of a crime unless an offence was constituted by the fact that he and the manager jostled one another in the lift. Suppose also that it was agreed that the public disclosure of the identity of that participant would be prejudicial to the security of the nation, and might have serious consequences for the participant himself and other persons. On those assumptions I should find it very hard to conclude that the hands of the participant were so sullied that he should be denied equitable relief or that because of what on the present material would appear to be, at worst, a minor and harmless assault, the national security should be put at risk and innocent persons, not themselves involved, should be made possibly to suffer.
14. It is clear that a person who owes a duty to maintain confidentiality will not be allowed to escape from his obligation simply because he alleges that crimes have been committed and that it is in the public interest that he should disclose information relating to them. He bears the burden of establishing the facts upon which he relies to relieve him of the obligation. That seems clear on principle and I have seen no authority that suggests the contrary. In Gartside v. Outram the question for decision was whether interrogatories should be answered. The defendant, in order to prove the fraud on which he relied to make out his answer to the plaintiff's case, sought to interrogate the plaintiff to obtain evidence of the fraud. It was held that the plaintiff was bound to answer. Wood V.C. said, at p.114, that it would not have been enough if the defendant had made "a mere roving suggestion" of fraud, but that the defendant had raised a plain and definite case. A leading authority in relation to privilege from discovery is O'Rourke v. Darbishire and Others (1920) AC 581, where it was held that in order to displace professional privilege as a ground for resisting production of documents a mere allegation of fraud in the pleadings is not sufficient; a prima facie case of fraud must be made out: see at pp.604, 613-614, 622-623, 632-633. In Butler v. Board of Trade (1971) 1 Ch 680, where the question was whether a letter of advice written by a solicitor to his client, who at the time the question fell for decision had become the defendant in criminal proceedings, was privileged, Goff J. said, at p.689, that "what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a prima facie case that the communications in question were made in preparation for or in furtherance or as part of it". Similarly, where an obligation of confidentiality has arisen, whether as a result of express contract or because the relationship between the parties gave rise to a duty of confidence, the party who alleges facts which show that the obligation does not extend to the circumstances of the case must prove his allegations. That means that in the present case the defendants must establish, at least prima facie, that the failure to disclose the information would tend to obstruct the course of justice and would be contrary to the public interest. It would not be enough to justify the disclosure of the confidential information in the present case that the police have requested it. It would be necessary to show, at the very least, that there is reasonable ground to believe that any plaintiff whose identity it is sought to disclose is implicated in the commission of an offence. Put in another way, at least what has to be shown prima facie is that there is "a bona fide and reasonably tenable charge of crime" against any plaintiff whose identity is sought to be disclosed. The bona fides of the police in the present case is not in doubt, but it is a question whether any charge against each plaintiff is reasonably tenable.
15. The Commonwealth owes an individual obligation of confidentiality to each plaintiff with whom it has contracted. The case of each party must therefore be examined separately. If one party has committed a breach of the law, that is no reason why the Court should refuse to assist another party to enforce the promise made to him by the Commonwealth not to disclose his identity. The rights of a party who has committed no misconduct cannot be denied because others may be at fault. That would be so even if no adverse consequences could ensue to an innocent plaintiff if his identity were disclosed, but in the present case the disclosure of the identity of a plaintiff might have serious consequences for him as well as for others.
16. The facts stated in the cases do not reveal any ground for belief that any particular plaintiff committed any offence. They strongly suggest that K. was entirely innocent of any wrongdoing; he appears to have done no more than remain in the hotel foyer for the purpose of observing the reactions of others. It is consistent with the facts stated that some other plaintiffs were also quite innocent, and if any offences were committed (which, as I have said, the plantiffs deny) it is impossible to decide, on the material which appears in the cases stated, which of the plaintiffs committed them.
17. For these reasons, in my opinion, it will be necessary to find further facts before it can be determined whether any, and if so which, of the plaintiffs will not receive the assistance of the Court to enforce the promise made to him by the Commonwealth to keep his identity confidential. I should add that there appears to be no reason to distinguish between the effect of the obligation of confidence owed to K. and the contractual obligations owed to the other plaintiffs. In each case, before the questions can be answered in favour of the Commonwealth, it will be necessary for it to be established that the particular plaintiff whose case is under consideration is reasonably suspected of having committed an offence, and it will also be necessary for the nature of the offence to appear, so that the Court can decide whether the public interest requiring the disclosure of criminal activity overrides the obligation of confidentiality in the circumstances of the case. I repeat that it is not enough to justify the disclosure of the identity of all the plaintiffs that it is suspected, and even reasonably suspected, that some of them committed crimes. It does not accord with modern notions of justice that the interests of all of the members of a group should be sacrificed because some of those members are suspected of guilt when others are innocent. In fact the Commonwealth should be well aware of the respective parts played by the various participants in the affair, for an investigation has already been conducted into the matter by Hope J. for the Commonwealth.
18. The Court, in deciding whether the plaintiffs are entitled to the discretionary relief which they seek, cannot consider the danger to the security of Australia that may result if the identity is disclosed. That is because the executive, which is responsible for the national security, has considered the matter and has apparently satisfied itself that the safeguards which the passage of the Criminal Proceedings Act 1984 and the Judiciary Amendment Act 1984 were intended to provide will prove sufficient. In The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. [1922] HCA 62; (1922) 31 CLR 421, at p 442, Isaacs J. said that the well-known dictum in The Zamora (1916) 2 AC 77, at p 107, that "those who are responsible for the national security must be the sole judges of what the national security requires" is "unquestionable law". The statement would nowadays be regarded as too absolute. It does not mean that when the executive seeks a special privilege or immunity on grounds of national security the courts will defer without question to the judgment of the executive as to what the national security requires. If, for example, the executive itself sought, on grounds of national security, to withhold documents or information required for the purpose of the administration of justice, the Court and not the executive would decide whether the national security required that the documents or information should not be produced. The judgments in Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1 demonstrate that. However, when the executive, after consideration, asserts that the national security will not be harmed by the disclosure of information, it is not open to a private individual to attempt to establish the contrary. A private litigant cannot be expected to have the knowledge that would be likely to make his views on such a question preferable to those of the executive, and in any case this is an area of the exercise of the prerogative into which the Court would be reluctant to intrude. The plaintiffs relied on some passages of the judgments in Sankey v. Whitlam, at pp 44, 68-69, 100-101, where it was recognized that in some cases when it appears that the public interest requires that a document be protected from disclosure, the Court may, of its own motion, intervene and withhold production, even though no objection has been taken by the executive. That will be so when the executive has had no opportunity to consider the question at an appropriate level but, generally speaking, it will not be so where, after proper consideration, the executive has decided to take no objection. The judgments in Sankey v. Whitlam do not assist the plaintiffs in the present case. The grave responsibility for deciding whether the national security will suffer if the identity of the plaintiffs is disclosed must rest solely on the executive.
19. However, for the reasons I have given, it is the responsibility of the Court to decide, in each of the present cases, whether the enforcement of the obligation of confidentiality undoubtedly owed by the Commonwealth would tend to obstruct the course of justice and would therefore be contrary to the public interest, and it cannot reach a decision on that question until it has been possible to determine whether certain of the allegations made by the plaintiffs are correct.
20. In each case, I hold that the answers to the questions depend upon the judicial determination of certain of the allegations of fact, particularly whether any plaintiff whose identity it is sought to disclose is reasonably suspected of having committed any breach of the criminal law and if so the nature of such breach, and would answer the questions accordingly.
MASON J. There is an air of unreality about this stated case. It has the appearance of a Law School moot based on an episode taken from the adventures of Maxwell Smart. It features the Commonwealth in a new and somewhat unattractive role - recruiting officers to the service of ASIS, its counter-espionage organization, on the footing that their names will be kept secret for reasons of national and personal security, instructing them through superior officers to participate in a bizarre training exercise carried out at the Melbourne Sheraton Hotel which involved risks of disturbing the peace and of the commission of criminal offences, yet arguing that it is entitled to disclose their names to the Chief Commissioner of Police for Victoria so that he may conduct investigations with a view to enforcing the criminal law against them, the Commonwealth itself being immune from enforcement of the law notwithstanding that through senior officers it initiated the training exercise.
2. The Commonwealth has a legitimate concern with the administration of the criminal law in its application to the events recorded in the stated case. However, the emphasis which the Commonwealth seeks to give to this responsibility should not be allowed to obscure its responsibility for what occurred. It is possible that the promise was given, and the arrangements for the training exercise made, in the belief that executive orders would provide sufficient legal authority or justification for what was done. It is very difficult to believe that this was the Commonwealth's view - superior orders are not and never have been a defence in our law - though it is conceivable that the plaintiffs may have had some such belief. I mention these aspects of the case lest concentration on the legal questions presented by the stated case should divert attention away from the primary role played by the Commonwealth in this enterprise, a primary role which should be kept steadily in mind if the criminal law ever comes to be set in motion against the plaintiffs. For the future, the point needs to be made loudly and clearly, that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law.
3. It is fortunate that the enterprise resulted only in very minor damage to property and that no one sustained personal injuries. The publicity given to the incident will no doubt almost certainly ensure that exercises of this kind will not be repeated. Fortunately the Commonwealth has the capacity through its control of its own organization to ensure that there will be no repetition. In a unitary system the Executive Government would in all probability rely on its capacity to control its organization as a sufficient means of ensuring that there would be no recurrence, without enforcing the criminal law. The tensions produced by the division of powers and responsibilities in our federal system tend sometimes, as in this case, to generate legal issues which would not usually arise in a non-federal system.
4. The evidence recited in the stated case and the questions which it presents are sufficiently set out in the reasons for judgment which have been prepared by Wilson and Dawson JJ. The form of the stated case, which is by no means a model precedent, presents some difficulties, certainly to the Commonwealth in relation to the first argument which it seeks to advance. The argument is that the relevant term of each of the contracts of employment between the plaintiffs A, B, C, D, E, and G and the Commonwealth requiring that his name should be kept confidential should be read down so as to permit a disclosure of identity by the Commonwealth for purposes associated with the administration of justice, i.e., to the Chief Commissioner of Police to enable him to investigate whether the plaintiffs or any of them have committed a criminal offence. The Commissioner's anxiety to investigate these comparatively minor offences is a tribute to his zeal.
5. No doubt in an appropriate case it would be proper to construe the general words of a contract requiring a party to keep confidential the name of another party as permitting the disclosure of the name for the purpose of enforcing the criminal law. Where the general words of a contract are susceptible of such a narrow construction it would be proper to read them strictly so as to impose no obstacle or obstruction to the administration of justice. The well recognized public policy or public interest in the administration of justice, a matter to be discussed when I come to consider the Commonwealth's alternative submission that the relevant term in the contracts is void or unenforceable, would favour such a construction. Here, however, the form of the stated case precludes any consideration by the Court of the first question which the Commonwealth seeks to raise. It is significant that the stated case does not set out the evidence, documentary and oral, constituting the contracts. Instead the stated case itself recites in terms the effect of the relevant promise. In the absence of the evidence to which I have referred, the Court cannot determine the meaning or content of the promise. What is of special importance is that the Court cannot determine whether the limitation which the Commonwealth seeks to place on the contractual obligation not to disclose is consistent with the promises in the actual contracts considered in their entirety. The fact that the parties had it in mind that ASIS would engage in clandestine counter-espionage activities might tend to suggest that the obligation not to disclose was related not only to national security but also to protection from the enforcement from the law. For this reason alone it would be material to inquire whether the discussions between the parties relating to the obligation not to disclose were associated with liability for criminal offences committed in the course of ASIS activities.
6. I turn to the question of enforceability. From the early days of the common law it was the duty of the citizen to disclose any treason or felony of which he had knowledge (Reg. v. Crimmins (1959) VR 270, at p 272). Failure to perform the duty constituted the offence of misprision of felony which was a common law misdemeanour punishable by imprisonment. In Crimmins the Full Court of the Supreme Court of Victoria rejected the dictum of Lord Westbury in Williams v. Bayley (1866) LR 1 HL 200, at pp 220-221, that an essential element in the crime was the offender's making his concealment of the crime a source of profit to himself. And despite suggestions to the contrary it was accepted as late as 1962 that misprision of felony was not obsolete (Sykes v. Director of Public Prosecutions (1962) AC 528). The compounding of a felony was also a common law misdemeanour. An agreement not to prosecute a felon or to stifle the prosecution of a felony for consideration amounted to compounding a felony. There was, however, no common law offence of misprision of misdemeanour and the existence of the offence of compounding a misdemeanour was doubtful.
7. The Criminal Law Revision Committee in its Seventh Report on Felonies and Misdemeanours (Cmnd. 2659) recommended the abolition of the distinction between felonies and misdemeanours and considered it to be objectionable: (a) that a person should be criminally liable for not reporting to the police any minor offence of which he might happen to know; (b) that dishonesty was not an element in the omission to give information; and (c) that the offence of misprision of felony contained no clear limitations in relation to offences committed by near relatives. The Committee recommended that the only case which needed to be provided for was one in which a person accepts or agrees to accept a bribe not to disclose information to the prosecution. The Criminal Law Act 1967 (U.K.) gave effect to these recommendations. It abolished the distinction between felonies and misdemeanours (s.1(1)) and provided that in all matters in which a distinction was formerly drawn between them the law and practice were to be assimilated to that formerly applicable to misdemeanours (s.1(2)). Misprision of felony thereby ceased to exist as an offence in English law.
8. Much the same course was followed in Victoria with the enactment of the Crimes (Classification of Offences) Act 1981 (Vic.) which introduced s.322B into the Crimes Act 1958 (Vic.). That section abolished the distinction between felonies and misdemeanours, making the law and practice relating to misdemeanours applicable, thereby abolishing the offence of misprision of felony. The 1981 Act also introduced a new s.326 which created the new offence of concealing an offence for a benefit, the gist of which is accepting a benefit for not disclosing information which might be of material assistance in securing a prosecution or conviction of a serious indictable offence, the offender knowing or believing that such an offence or some other serious indictable offence has been committed. Section 326(5) provides that the compounding of an offence other than treason shall not be an offence otherwise than under the section.
9. The consequence of the amendments is that it is no longer the duty of a citizen in Victoria, as it once was, to disclose a felony of which he has knowledge. And, as we have seen, it never was the duty of a citizen in Victoria to disclose a misdemeanour of which he had knowledge. It follows that had the promise made by the Commonwealth not to disclose the identity of some of the plaintiffs been made by an ordinary citizen it would not have involved him in any breach of a duty imposed by the law of Victoria in 1983. And it has not been suggested that the Commonwealth was under some overriding duty to disclose its knowledge of a felony or misdemeanour which transcended the obligation of the ordinary citizen.
10. Accordingly, if the promise is void or unenforceable, it is not because it is inconsistent with the duty imposed on the Commonwealth by law but because the promise seeks to impose an obligation which is at variance with a fundamental head of public policy - the public interest in the enforcement of the criminal law and in the administration of justice. That there is a powerful public interest in the enforcement of the criminal law as an important element in the administration of justice does not admit of debate. Indeed, its importance has been such that the common law has regarded as illegal "any contract or engagement having a tendency, however slight, to affect the administration of justice" to use the words of Lord Lyndhurst in Egerton v. Brownlow [1853] EngR 885; (1853) 4 HLC 1, at p 163 [1853] EngR 885; (10 ER 359, at p 424). In Howard v. Odhams Press, Ld. (1938) 1 KB 1, at p 29, Slesser L.J. pointed out that the perversion of justice may take place in many ways. One example was concealment or procuring the concealment of a felony amounting to the offence of misprision. Another example is an agreement not to prosecute or to stifle a prosecution which at common law is void or unenforceable (Williams v. Bayley, at p 220, per Lord Westbury).
11. Yet another example is an agreement between a prosecutor and persons
indicted that a witness should not give evidence at a trial
for reward. In
Collins v. Blantern [1799] EngR 100; (1765) 2 Wils. KB 341 (95 ER 847) Wilmot C.J., referring
to such an agreement, observed (at p
350 (ER p 852)):
"This is a contract to tempt a man to transgress
the law, to do that which is injurious to the
community: it is void by the common law; and the
reason why the common law says such contracts are
void, is for the public good. You shall not
stipulate for iniquity. All writers upon our law
agree in this, no polluted hand shall touch the
pure fountains of justice. Whoever is a party to
an unlawful contract, if he hath once paid the
money stipulated to be paid in pursuance thereof,
he shall not have the help of a Court to fetch it
back again, you shall not have a right of action
when you come into a Court of Justice in this
unclean manner to recover it back. Procul O]
procul este profani."
did not: (a) differentiate between void and unenforceable contracts; and (b)
draw a distinction between a contract which was unenforceable
in the sense
that it could not be sued on and a provision in a contract which the courts
would not enforce in particular circumstances.
I shall discuss this question
later.
12. The final example is an agreement to compromise legal proceedings for an
offence of a public nature which is illegal (Keir v.
Leeman [1844] EngR 30; (1844) 6 QB 308
(115 ER 118); (1846) 9 QB 371 (115 ER 1315); Windhill Local Board of Health
v. Vint (1890) 45 Ch D 351).
In Windhill
Cotton L.J. said, at p 363:
"... the Court will not allow as legal anyThese remarks are of special significance because they show that the underlying thrust of the common law principle was directed as much against the detriment which would be caused to the administration of justice if agreements of the kind in question were to be enforced as against the evil of making knowledge of the commission of the crime a source of profit to the individual.
agreement which has the effect of withdrawing from
the ordinary course of justice a prosecution when
it is for an act which is an injury to the public.
It would be the case of persons taking into their
own hands the determining what ought to be done;
and that ought not to be taken into the hands of
any individuals, ... but ought to be left to the
due administration of the law ...".
13. So much at least was recognized by Slesser L.J. in Howard v. Odhams
Press, Ld., at p 31, when, in relation to the agreement
under consideration in
that case, he observed that it would have the effect of restricting the
opportunity which the defendants and
others might otherwise possess to assist
the authorities in the investigation and prosecution of the alleged crime and
went on to
refer to the judgment of Stirling J. in Lound v. Grimwade (1888) 39
Ch D 605, where his Lordship, after quoting the observations
of Lord Lyndhurst
in Egerton said (at p.612):
"Upon this principle it has been repeatedly held
that agreements tending to affect the course of
legal proceedings are illegal, even although those
proceedings may not be strictly criminal in their
nature."
14. The assumption, unstated but unquestionably well founded, which lies
behind the observations of Cotton L.J. in Windhill as applied
and expounded by
Slesser L.J. is that the effective enforcement of the criminal law and the
administration of justice, which are
central elements in a well ordered
democratic society, depend for their efficacy on the unrestricted freedom of
each and every citizen
to assist and co-operate with the authorities in the
investigation and prosecution of criminal offences. There is therefore a
powerful
public interest in promoting and preserving the citizen's freedom to
assist and co-operate with the authorities in the investigation
and
prosecution of crime. The force of this public interest was formerly
buttressed by the existence of the old common law offences
of misprision and
compounding a felony. However, as we have seen, the basic common law principle
reaches beyond the circumstances
which give rise to the old offences. Because
the principle rests on the wider foundation of public interest already
mentioned, its
continued existence remains unaffected by the abolition of the
old offences and the creation of the new offence of concealment enshrined
in
s.326 of the Crimes Act. The public interest in the enforcement of the
criminal law is not diminished because it now depends,
not on any duty or
obligation
on the part of the citizen to give information concerning the
commission of an offence, but on his
freedom to decide what action
he will
take. The elimination of the duty to give information in relation to
felonies, a consequence
of the abolition of misprision
of felony, is no more
than an acknowledgement that the duty is no longer suited to the conditions
and circumstances of society, in
which liberty of action on the part of the
individual is to be preferred to coercive obligation.
Indeed, the enactment
of the relevant
provisions of the Crimes (Classification of Offences) Act
makes it all the more important
that the citizen's unrestricted freedom
to
assist the authorities should be maintained against influences and pressures
which are
designed or calculated to induce him not
to exercise that freedom by
way of cooperating with the authorities.
15. At first glance it might be thought that the making of a contract not to disclose information which may prove to be relevant to the investigation of a crime is no more than an exercise of the citizen's freedom of action to which I have referred, but this is to ignore the element of public policy. Generally speaking, the making of a contract is no more than an exercise of the citizen's freedom to take such action as he thinks is appropriate, at least in those areas in which he enjoys liberty of action. Undertaking to act in a particular way in the future is not ordinarily regarded as an illegitimate impairment of the individual's freedom to decide for himself what action he will take, even though his undertaking commits him contractually to a course of action in advance of the projected event. This is because no element of public policy is involved which would require that the exercise of the freedom should not be qualified or impaired by entry into some antecedent commitment or some antecedent commitment of a particular kind.
16. It is obvious that the public interest in the enforcement of the criminal law as an element in the administration of justice would be seriously impaired if the citizen were at liberty to assume in return for a benefit an obligation not to disclose information concerning the commission of a criminal offence. The enforcement of the criminal law cannot be allowed to hinge on the willingness of the citizen to make a profit out of his silence, whether the contract be made before or after the commission of the offence. The existence of s.326 of the Crimes Act does not supply a reason for confining the public interest in the enforcement of the criminal law to the extent to disclosure of serious indictable offences. There is no fundamental inconsistency in recognising the wide public interest in the administration of justice generally and in making it a criminal offence to conceal for a benefit serious indictable offences only.
17. The foregoing discussion indicates that, subject to minor qualification only, Lord Lyndhurst was correct in Egerton v. Brownlow when he said that any contract having a tendency, however slight, to affect the administration of justice is illegal. He was of course speaking of a contract or engagement which has a tendency to affect the administration of justice adversely. It has been said that it is the effect of the contract rather than its purpose or the motives of the parties to it that is important (Howard v. Odhams Press, Ld., at p 40). In truth, it is the effect of the enforcement of the contract that is all important. In some cases it may not be easy to assess what impact the contract, if enforced, will have on the administration of justice, as, for example, where in one respect the impact is adverse, but in other respects, beneficial - see, for example, the discussion in Weld-Blundell v. Stephens (1919) 1 KB 520 and Howard v. Odhams Press, Ld.
18. Sometimes it is said that a contract to which the principle applies is void; at other times it is said that the contract is unenforceable or, as Lord Tenterden C.J. expressed it in Wetherell v. Jones [1832] EngR 405; (1832) 3 B & Ad 221, at pp 225-226 [1832] EngR 405; (110 ER 82, at p 84), that the court will not lend its aid to the enforcement of the contract. The true position, as I see it, is that some contracts are void whereas others are valid, though the court will decline to enforce the particular provision in a valid contract in particular circumstances when enforcement of that provision would have an adverse effect on the administration of justice. Thus, a simple agreement not to disclose the existence of a serious criminal offence, which has been, or is about to be, committed in consideration of the payment of a sum of money may well be void because it is illegal. However, it will be otherwise with a contract which is in all respects lawful but nevertheless contains a provision which, if enforced according to its terms, will result in an interference with the administration of justice. Take a contract which contains a minor or subsidiary provision which, though not directed to non-disclosure of criminal offences, imposes an obligation of confidentiality in sweeping terms. If those terms are not susceptible of being read down, the court will refuse to lend its aid to the enforcement of the provision if enforcement would result in the non-disclosure of a criminal offence adversely affecting the administration of justice. In such a case the contract is not void; nor is it unenforceable in the sense in which that term is customarily used in the law of contracts. The case is one in which the court refuses a remedy on the ground of public policy. Beresford v. Royal Insurance Co. (1938) AC 586 is an illustration of such a case.
19. It was acknowledged in Egerton v. Brownlow that the common law principle
which I have been discussing was based on public policy.
It has at times been
fashionable to criticize public policy (see Janson v. Driefontein Consolidated
Mines Limited (1902) AC 484;
Fender v. St. John-Mildmay (1938) AC 1, at pp
10-11. 38-41). Indeed in Egerton v. Brownlow itself Crompton J. thought that
varying
notions of public expediency would make it impossible to determine its
scope and would introduce uncertainty into the ascertainment
of legal rights
(4 H.L.C. at pp.70-71 (10 E.R. at p.388)). Other judges, anxious to distance
themselves from questions of policy
because they are thought to fall within
the province of the legislature have asserted that public policy is a species
of judicial
legislation. However, the place of public policy in the
formulation of the common law has been recognized by the greatest judges
from
early times - see, for example, the opinion of Lord Mansfield in Jones v.
Randall (1774) 1 Cowp 37, at p 39 [1774] EngR 24; (98 ER 954, at pp
955-956). In In re Jacob
Morris (Deceased) (1943) 43 SR(NSW) 352, a decision which was affirmed by this
Court
in Lieberman v. Morris
(1944) 69 CLR 69, Jordan C.J. said (at pp
355-356):
"... the phrase 'public policy' appears to mean theIn Egerton v. Brownlow Pollock L.C.B. pointed out that he would be abdicating the functions of his office if he were to discard public welfare from consideration and thought that he ought not to shrink from applying its principles to "any new and extrordinary case that may arise" (p.149 (E.R. p.419)). He conceded that:
ideas which for the time being prevail in a
community as to the conditions necessary to ensure
its welfare; so that anything is treated as
against public policy if it is generally regarded
as injurious to the public interest. 'The "public
policy" which a court is entitled to apply as a
test of validity to a contract is in relation to
some definite and governing principle which the
community as a whole has already adopted either
formally by law or tacitly by its general course of
corporate life, and which the courts of the country
can therefore recognise and enforce. The court is
not a legislator: it cannot initiate the
principle; it can only state or formulate it if it
already exists': Wilkinson v. Osborne. ((1915) [1915] HCA 92; 21
CLR 89 at 97; 4 Austn Digest 607). It is
well settled that a contract is not enforceable if
its enforcement would be opposed to public policy:
Mogul Steamship Company v. McGregor, Gow & Co.
((1892) AC 25 at 39, 51). Public policy is not,
however, fixed and stable. From generation to
generation ideas change as to what is necessary or
injurious, so that 'public policy is a variable
thing. It must fluctuate with the circumstances of
the time': Naylor, Benzon & Co. v. Krainische
Industrie Gesellschaft. ((1918) 1 KB 331 at 342).
New heads of public policy come into being, and old
heads undergo modification."
"... it may be that Judges are no better able toNotwithstanding the criticism of these remarks by Lord Wright in Fender v. St. John-Mildmay, at pp 40-41, I find them compelling.
discern what is for the public good than other
experienced and enlightened members of the
community; but that is no reason for their
refusing to entertain the question, and declining
to decide upon it." (p.151 (E.R. p.419)).
20. The refusal of the courts to enforce contracts on grounds of public policy is a striking illustration of the subordination of private right to public interest. The problem is one of formulating with any degree of precision the criteria or the circumstances which will justify a court in refusing to enforce a contract on the ground that there is a countervailing public interest amounting to public policy. The difficulties in ascertaining the existence and strength of an identifiable public interest to which the courts should give effect by refusing to enforce a contract are so formidable as to require that they "should use extreme reserve in holding such a contract to be void as against public policy, and only do so when the contract is incontestably and on any view inimical to the public interest", to use the words of Asquith L.J. in Monkland v. Jack Barclay Ld. (1951) 2 KB 252, at p 265. Here, however, the head of public policy invoked is well recognized and it relates to the enforcement of the criminal law - a field in which the courts have a special interest and experience.
21. In the past that principle has been applied to contracts between private citizens. But I can see no reason why it should not apply with at least equal force to a contract to which the Commonwealth is a party when the contract is sought to be enforced so as to prevent the Commonwealth from assisting the Executive Government of a State in the investigation of possible breaches of criminal laws of the State.
22. The question which then arises is whether a refusal to disclose the information requested to the Chief Commissioner will have a tendency to interfere with the enforcement of the criminal law. Before I turn to this question I should consider the argument urged that there is a countervailing public interest, national and international security, which must be taken into account as a counterweight to the public policy in the administration of justice. Because a principle based on public policy is necessarily a reflection of judicial assessment of public interest, it generally follows that any opposing public interest must be identified and weighed in the balance so that the common law principle can be appropriately limited and applied. It may be that the public interest in the administration of justice and the enforcement of the criminal law is so strong that it cannot be outweighed by any countervailing public interest, though I am by no means presently persuaded that this is the case. Be this as it may, security presents a particular problem. That there is a public interest in national and international security is beyond question. But in many situations it may be difficult or impossible for a court to satisfy itself that there is a threat or prejudice to security. This is one such case. Paragraph 31 of the first stated case recites that advice has been given by ASIS to the Commonwealth that the disclosure of the participants' names would be prejudicial to the national and international security of Australia. We are not told that the advice is accurate or that the Commonwealth accepted it. Paragraph 33 recites that the Chief Commissioner has agreed to take any measures necessary to preserve confidentiality of the identity of the participants "so far as practicable to do so in the conduct of his investigation". Paragraph 40 then recites that the first defendant, the fourth defendant and the Commonwealth do not rely on national and international security as inhibiting the disclosure of the names to the Chief Commissioner and allege disclosure would not prejudice national security.
23. The contents of this paragraph are related to recently enacted legislation which is designed to preserve a measure of confidentiality in relation to the names of the participants should criminal proceedings be taken against them. The Criminal Proceedings Act 1984 (Vic.) empowers the courts of that State to make orders for confidentiality in relation to criminal proceedings arising out of the events at the Sheraton Hotel. The Judiciary Amendment Act 1984 (Cth) provides for effect to be given throughout Australia to any orders made pursuant to the Victorian Act with a view to ensuring confidentiality.
24. The qualification attaching to the Chief Commissioner's claim as recorded in par.33 excites some misgiving as to the effectiveness of the arrangement made for maintaining confidentiality if disclosure is made to him for the purpose of the proposed investigation. However, the materials in the stated case are quite inadequate to enable this Court to make any assessment of the threat to national and international security and for that matter to the personal safety of the participants which may be involved in the proposed disclosure of their names to the Chief Commissioner. For this reason I am unable to hold that there is a countervailing public interest which overcomes or neutralizes the traditional public policy supporting the common law principle.
25. I return finally to the question of whether non-disclosure of the names of the participants to the Chief Commissioner will have a tendency to adversely affect the enforcement of the criminal law. The question must be answered in the affirmative if on the facts recited in the stated case there are reasonable grounds for apprehending that the plaintiffs or any of them participated in the commission of the offences which the Deputy Commissioner (Operations) of the Victoria Police believes were committed in the course of the training exercise. The list of possible offences recited in the stated case seems to be exaggerated. However, it has not been contested that there are reasonable grounds for apprehending that the plaintiffs participated in the commission of one or more of the offences, though I do not understand how K was involved in them. In the circumstances the question must be answered in the affirmative.
26. What I have said applies with equal force to any implied or equitable obligation of confidentiality which may have arisen on the part of the Commonwealth in relation to the plaintiffs, though I have difficulty in understanding how such an obligation could arise in those cases in which the Commonwealth gave an express promise not to disclose.
27. I would answer therefore the questions as follows:
In Actions M101, M102 and M103 of 1983 -
1 Yes
2(a) Yes
(b) No
3 There is no such enforceable duty.
4 No
5 No
In Action M104 of 1983 -
1 Yes
2(a) Yes
(b) No
3 There is no such enforceable duty.
4 Unnecessary to answer in light of the answer
to question 3.
5 Unnecessary to answer.
6 No
7 No
In Action M105 of 1983 -
1 Not applicable.
2 Not applicable.
3 There is no such enforceable duty.
4 No
5 No
MURPHY J. The plaintiffs claim an injunction to restrain the defendants from revealing to the Victorian Chief Commissioner of Police their identities as persons who engaged in conduct which has been investigated by the Victorian police with a view to charging persons with various offences against the laws of Victoria. This court is not concerned with whether the plaintiffs have actually committed offences. That is for investigation or trial, beyond the ambit of these proceedings. The plaintiffs claim that the Commonwealth has contracted not to reveal their identities.
2. During argument, important questions were agitated - government exemption
of its agents from observing the law - the doctrine
of superior orders - the
extent to which government action might be fettered by contract - the
relevance of national security.
Exemption of agents from observing the law
3. The Executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land. If necessary, constitutional and other writs are available to restrain apprehended violations and to remedy past violations. I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads.
4. The conduct in Victoria out of which the case arose was apparently
intended as training for what might be done by an Australian-directed
group in
other countries. The plaintiffs' case as first presented appeared to assume
that without Parliament's authority, the Government
(or its officers or
agents) can authorise persons, whether officers of the Commonwealth or not, to
engage in other countries in conduct
which is against the laws of those
countries (apart from what is authorised by international law). Neither the
Commonwealth nor
any of its Ministers, officers or agents, military or
civilian, can lawfully authorise the commission by anyone in another country
of conduct which is an offence against the laws of that country and is not
authorised by international law (for example, by the laws
of war). Whether
Parliament could empower such authorisation does not arise for decision; it
has never purported to do so. Under
our Constitution and laws, Australia is a
law-abiding member of the community of nations.
Superior Orders.
5. In Australia it is no defence to the commission of a criminal act or
omission that it was done in obedience to the orders of
a superior or the
government. Military and civilians have a duty to obey lawful orders, and a
duty to disobey unlawful orders.
Any defence that conduct out of which this
case arose was in obedience to orders which were not apparently unlawful may
arise in
other proceedings, but is not now pertinent.
Contractual fettering of government action - Breach of Confidence
6. Confidentiality may arise from contract or from circumstances. A court will, in an appropriate case, restrain breach of confidence by one of the parties or by others. A contract not to reveal the identity of a party is, in general, enforceable, but not in all circumstances.
7. If the contract is valid, it is unenforceable in the circumstances presented here. It would be contrary to public policy for a Minister or the Executive Government to be prevented from revealing information which would assist in the investigation of a crime, whether great or less. The Minister is not bound to reveal the identity; it is within his discretion whether he does or not. Commonsense would suggest that the discretion be exercised against revelation in the case of a minor offence, but this is for the executive authority, not for the Court. However, I do not accept that there was a valid but unenforceable contract. The argument is that the contract was not to reveal the identity of the plaintiffs, that no exceptions were expressed and none should be implied.
8. A contract that a Minister or other officer would not reveal identity to a
court would be incompatible with the administration
of justice. A contract
that a Minister or other officer would not reveal identity to the Senate or
House of Representatives, would
be incompatible with responsible government.
If the contract had expressly purported to bind the Commonwealth and the
defendants
not to reveal identity in those circumstances, it would be invalid.
Equally the contract would be invalid if it purported to bind
the Commonwealth
and the Ministers not to reveal the identities of the plaintiffs even if this
were necessary for the proper execution
of the criminal law of the
Commonwealth or of the States. To maintain its validity it must be read as
not extending to those circumstances
(see Smorgon v. Australia and New Zealand
Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475, 488-489; Ansett Transport Industries
(Operations)
Pty Ltd v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54, 72, 86-87). It
would be incongruous to hold that the
revelation of identity to a
court or a
House of Parliament
was a breach of contract (presumably entitling the
plaintiffs to sue for
damages, even nominal damages).
Claim of National Security
9. Certain laws have been enacted by the Australian and Victorian Parliaments to protect the plaintiffs from publication of their identities. The Government asserts that in these circumstances the national security would not be adversely affected by an executive disclosure. The plaintiffs contend that despite that assertion of the Executive Government, the Court should hold that the national security will be affected. Such an assertion cannot prevail. Where the Executive Government through its Minister asserts that the national security will be adversely affected by some disclosure in or out of court, and a party contends otherwise (or that any such effect is outweighed by other considerations such as the attainment of justice), the court may inquire and if necessary balance the competing considerations. But where the Executive disclaims an adverse effect on national security it is difficult to imagine how a court could properly entertain the claim by another. Counsel for the plaintiffs when pressed could not refer to any precedent in this country or elsewhere where a court has upheld a claim based on national security considerations which were disclaimed by the Government which was responsible for national security.
10. The questions in the stated cases should be answered as follows:
In actions Nos. M101 and M103 of 1983 -
Q.1. No
Q.2. (a) Unnecessary to answer in light of the
answer to question 1, but if the Court
were to answer "Yes" in question 1,
"Yes".
(b) Unnecessary to answer in light of the
answer to question 1, but if the Court
were to answer "Yes" in question 1, "No".
Q.3. There is no such enforceable duty.
Q.4. No.
Q.5. No.
In action No. M102 of 1983 -
Q.1. No.
Q.2. (a) Unnecessary to answer in light of the
answer to question 1, but if the Court
were to answer "Yes" in question 1,
"Yes".
(b) Unnecessary to answer in light of the
answer to question 1, but if the Court
were to answer "Yes" in question 1, "No".
Q.3. There is no such enforceable duty.
Q.4. No.
Q.5. No.
In action No. M104 of 1983 -
Q.1. No.
Q.2.(a) Unnecessary to answer in light of the
answer to question 1, but if the Court
were to answer "Yes" in question 1,
"Yes".
(b) Unnecessary to answer in light of the
answer to question 1, but if the Court
were to answer "Yes" in question 1, "No".
Q.3. There is no such enforceable duty.
Q.4. Unnecessary to answer in light of the answer
to question 3.
Q.5. Unnecessary to answer.
Q.6. No.
Q.7. No.
In action No. M105 of 1983 -
Q.1. Not applicable.
Q.2. Not applicable.
Q.3. There is no such enforceable duty.
Q.4. No.
Q.5. No.
WILSON and DAWSON JJ. The identity of the plaintiffs in these five actions has not been disclosed. They were all participants, in one way or another, in a training exercise carried out by the Australian Secret Intelligence Service ("ASIS") at the Sheraton Hotel in Melbourne on 30 November 1983. In the exercise the plaintiffs described as H, I, and J, respectively, played the parts of a hostage and of two men who were detaining him in a locked room on the tenth floor of the hotel. A team comprising A, B, C, D, E and G ("the team") was required to rescue the hostage. F was generally in charge of the operation and K was stationed in the foyer of the hotel to observe the reaction, if any, of other persons in the hotel to the conduct of the exercise. It should be explained that A, B, C, D, E and G were all civilians who had undertaken part-time employment with the Commonwealth between 11 November 1983 and 30 November 1983 for the purpose of being trained by ASIS. F was at all material times employed by the Commonwealth in work for ASIS. He was responsible for the recruitment and training of the team. H, I and J were each employed as officers of ASIS pursuant to a contract of employment with the Commonwealth. K was a member of the Australian Regular Army who was given, with other members of the Army, the duty of providing training support for ASIS personnel.
2. The team was supplied with firearms and blank ammunition by an ASIS officer. A sledge hammer for possible use in the exercise was purchased by them with the approval of the officer.
3. In the course of the exercise, one of the members of the team accompanied by four other members used the sledge hammer to break open a door to the room on the tenth floor of the hotel in which the hostage was held. When the manager of the hotel went to investigate, he was met by a member of the team wearing a mask. Together they entered the lift from which the manager had emerged. They jostled one another until the lift arrived at the ground floor, the team member telling the manager that nobody would be hurt. Subsequently, a group of the participants in the exercise, most of whom were wearing masks, emerged from the hotel lift at ground floor level and made their way through the hotel past guests and staff to a waiting car. They carried firearms, including a pistol and two sub-machine guns. The motor car, driven by another participant, drove off but was subsequently stopped by members of the Victorian Police force. The four occupants of the motor car were apprehended and subsequently another participant was questioned by the police. During the conduct of the exercise, K remained in the foyer of the hotel and knew nothing of the events which were occurring in the lift or on the tenth floor.
4. The Deputy Commissioner (Operations) of the Victoria Police has deposed that be believes a number of breaches of the criminal law of Victoria were committed in the course of the exercise and that it is essential that he identifies the participants in order to properly investigate whether any crimes were committed, and, if so, to apprehend the offenders and to bring charges against them. On 15 December 1983 the plaintiffs instituted these actions claiming, inter alia, permanent and interlocutory injunctions to restrain the defendants ("the Commonwealth") from disclosing to any person any information touching the identity of the plaintiffs. Interim orders substantially to that effect were made and remain in force pending the determination of the actions. Thereafter, in each action, Dawson J., pursuant to s. 18 of the Judiciary Act 1903 (Cth) as amended, stated a case and reserved certain questions of law for the consideration of the Court.
5. The cases stated in each of actions M101 of 1983, M103 of 1983 and M105 of
1983 are identical. The first of these deals with
the plaintiffs A, B, C, D
and E, the second with the plaintiff G and the third with the plaintiff K.
The case outlines the functions
of ASIS and refers to the special project to
develop what is described as "covert action capability" of which the training
exercise
at the Sheraton Hotel formed part. It is necessary to set out
several paragraphs of the case, which read as follows:
"12. During a course of instruction in ASIS
procedures, structure and organisation, K was
advised by an ASIS officer that his identity,
would be kept confidential and in particular,
except insofar as might be necessary for the
conduct of the functions of ASIS, there would
not be disclosed to any person:
(a) the name, address, occupation or any
other particular identifying or likely to
identify him as a person who has worked
for ASIS;
(b) any act or thing done by him in the
course of his training or work for ASIS.
13. It was a term of each of A, B, C, D, E and G's
contract of employment with the Commonwealth
that his identity would be kept confidential,
and in particular, except insofar as might be
necessary for the conduct of the functions of
ASIS, there would not be disclosed to any
person:
(a) the name, address, occupation or any
other particular identifying or likely to
identify him as a person who has worked
for ASIS;
(b) any act or thing done by him in the
course of his training or work for ASIS.
14. The proposed disclosures hereinafter referred
to are not necessary for the conduct of the
functions of ASIS.
...
19. On 30th November, at the Sheraton Hotel,
Melbourne, each of A, B, C, D, E, F, G, the
plaintiffs identified as H, I, J in action
No. M104 of 1983 and K at the direction of the
Commonwealth participated in the exercise. ...
...
22. At the commencement of the exercise, the team
was given Commonwealth exercise cards by ASIS
personnel. These cards state that the bearer
is on a Commonwealth exercise. The team was
instructed by ASIS personnel to show these
cards should they be questioned as to their
activities during the exercise.
...
31. Advice has been given to the Commonwealth that
the disclosure of the participants' names
would be prejudicial to the national and
international security of Australia. This
advice was given by ASIS prior to the orders
made by this Honourable Court on 15th
December 1983 and by the Department of Foreign
Affairs prior to the coming into force of the
Judiciary Amendment Act 1984.
...
33. The Chief Commissioner has agreed to take any
measures necessary to preserve the
confidentiality of the identity of the
participants so far as practicable to do so in
the conduct of his investigation of breaches
of the criminal law alleged to have arisen out
of the exercise and in the conduct of any
prosecution arising out of such investigation.
34. (a) The maintenance by ASIS of an ability
effectively to discharge its functions is
of great importance to the national
security of Australia;
(b) In order effectively to dicharge its
functions ASIS requires to recruit and
train suitable persons to work on its
behalf;
(c) For the purpose both of training new
recruits and maintaining the capability
of existing officers ASIS requires from
time to time to conduct training
exercises;
(d) Further, in order properly and
efficiently to discharge its functions,
ASIS requires to maintain contact and
liaison with and the goodwill and
co-operation of:
(i) similar organisations in some
foreign countries;
(ii) officers and agents involved in
gathering intelligence in foreign
countries;
(e) For the achievement of its objects and
purposes, it is generally necessary that
ASIS, and the Commonwealth by its
servants and agents, ensure and be seen
by any person concerned to enquire or
investigate to ensure, that the identity
of each of A, B, C, D, E, G and K be kept
confidential and in particular, except
insofar as might be necessary for the
conduct of the functions of ASIS, that
there be not disclosed to any person:
(i) the name, address, occupation and
any other particular identifying or
likely to identify him as a person
who has worked for ASIS;
(ii) any act or thing done by him in the
course of his work for ASIS.
(g) The disclosure to foreign intelligence
services of the identity of A, B, C, D,
E, G and K would be prejudicial to the
international and national security of
Australia;
...
(i) If the names of A, B, C, D, E, G and K
were made public, this would be
prejudicial to the national and
international security of Australia;
...
36. At all material times each of A, B, C, D, E, G
and K held an honest belief that:
(a) ASIS was an important branch of the
Australian Government;
(b) anything he was instructed or authorised
to do by ASIS had the authority of the
Australian Government;
(c) he was authorised to carry weapons in the
hotel and other places and to break down
the door of the hotel room in which the
hostage was held if this was necessary to
carry out the exercise successfully;
(d) the plan of the participants' team leader
had been approved. This plan was that
one participant would dress as a waiter
and ask that the door to the suite in
which the hostage was held be opened so
that he could obtain a signature to a
parcel delivery. If the subterfuge plan
failed, the participants would break the
lock on the door by force.
...
40. The first defendant, the fourth defendant and
the Commonwealth:
(a) do not rely upon any matter of national
security as inhibiting or preventing the
disclosure of the names of the
participants to the Chief Commissioner;
(b) allege that the disclosure of the name(s)
of the participants would not prejudice
the national security of Australia.
41. The first defendant the fourth defendant andEach case then concludes with the following questions:
the Commonwealth desire to comply with the
request of the Chief Commissioner to disclose
the names of the participants to him the
disclosure of which he alleges will enable him
to investigate alleged breaches of the
criminal law, to apprehend offenders and to
bring charges against them."
"1. Would the disclosure by the defendants to the
Chief Commissioner of Police of the State of
Victoria of the name of each of the plaintiffs
identified as A, B, C, D, E and G as a
participant in the exercise amount to a breach
of the term of the agreement referred to in
paragraph 13 above ('the term').
2. Is the term:
(a) unenforceable insofar as it purports to
prevent the defendants from disclosing to
the Chief Commissioner the name of each
of the said plaintiffs?
(b) enforceable in view of the national
interest in maintaining security.
3. Do the circumstances give rise to a duty owed
by the Commonwealth to each of A, B, C, D, E, G
and K to treat as confidential information and
in particular, except insofar as necessary to
carry out the functions of ASIS, not to
disclose to any person:
(a) the name, address occupation or any other
particular identifying or likely to
identify him as a person who has worked
for ASIS;
(b) any act or thing done by him in the
course of his work for ASIS:
notwithstanding that such a duty prevents the
defendants from disclosing to the Chief
Commissioner the names of the participants in
the exercise.
4. Does the answer to any of the above questions
depend upon the judicial determination of the
allegations or any and which of them contained
in paragraphs 37, 38, 39 and 40 hereof.
5. Are the plaintiffs identified as A, B, C, D,
E, G and K entitled to a permanent injunction
in the terms of the order made herein on the
15th day of December 1983 or in any and what
like terms."
6. The plaintiff in action M102 of 1983 is F. The case stated in this action
repeats in relation to F material which is for all
practical purposes
identical to the facts which have been extracted from the other cases. It
also develops in some greater detail
the facts relating to the planning of the
exercise and matters relating to national and international security. It is
unnecessary
to refer to that material. The case concludes with a set of
questions relating to F which for all practical purposes are identical
to
those relating to A, B, C, D, E, G and K.
7. The plaintiffs in action M104 of 1983 are H, I, and J. In this action the
case describes in some detail the incidents of the
contract of employment
between the Commonwealth and each of the plaintiffs. With respect to each
plaintiff the contract included
a term (set out in par. 17 of the case) as to
the confidentiality of the identity of the employee which is identical to that
which
has already been set out. The case includes material which corresponds
to the facts set out earlier in this judgment in paragraphs
numbered 14, 19,
31, 33, 34, 40(a) and 41. The paragraph which corresponds to par. 34 includes
an additional subparagraph identified
as (f), which reads as follows:
"(f) In order to facilitate (c) above, ASISThe case concludes by setting out seven questions for the consideration of the Court. Questions numbered 1, 2, 3, 6 and 7 correspond precisely with the questions numbered 1, 2, 3, 4 and 5 in each of the other cases. Questions 4 and 5 are as follows:
requests training in specific skills from the
army and the army provides that training;"
"4. Do the facts stated in paragraphs 11, 13 and
15 lead to the implication of either of the
terms alleged by the said plaintiffs in
paragraph 19.
5. If yes to question 4 above:
(a) is each of the terms unenforceable
insofar as it purports to prevent the
defendants from disclosing to the Chief
Commissioner the name of each of the said
plaintiffs;
(b) is each of such terms enforceable in viewThe facts stated in pars 11, 13, and 15 refer to H, I and J respectively and detail aspects of the contract of employment of each of them. That information is relevant to matters of national security and the Court has ordered that it not be disclosed. Paragraph 19 details an alleged implied term of confidentiality applicable specifically to the Sheraton Hotel incident.
of national interest in maintaining
security."
8. It is now possible to turn to the issues. Those issues are clearly drawn between the parties and we do not think it will be necessary to distinguish between the plaintiffs, notwithstanding that in the case of K there is no contractual term as to the confidentiality of his identity.
9. In the first place, the Commonwealth contends that the term of the contract of each of the plaintiffs except K should be construed as creating a qualified obligation of confidentiality which does not prevent the Commonwealth from disclosing the identity of the plaintiffs to the Victorian Police Commissioner in order that he might investigate alleged breaches of the criminal law. The learned Solicitor-General argues that the parties should not be presumed to have intended to create an absolute obligation of confidentiality which might conflict with the public duty of the Commonwealth to protect the community against crime or confer an immunity from the criminal law. We do not think that the argument should be accepted. The term of the contract is expressed plainly and emphatically. Subject to the interests of ASIS the Commonwealth assures the plaintiffs of its complete loyalty in maintaining the confidentiality described. Of course, the term, like any other contractual term, is subject to the operation of the general law: Parry-Jones v. Law Society (1969) 1 Ch 1, at p 9; Smorgon v. Australia and New Zealand Banking Group Ltd. [1976] HCA 53; (1976) 134 CLR 475, at p 488. Save for the considerations of public policy to which we will turn, there is no relevant operation of the general law to override the contractual term in the present cases. The Commonwealth is under no legal duty to make the disclosures which it desires to make. Nevertheless, it is submitted that the parties should be taken to have intended the term to have no application to circumstances such as the present. To our minds, the circumstances point the other way. They were highly unusual circumstances. The plaintiffs were participants in an exercise undertaken at the direction of the Commonwealth in the course of training to develop a covert operational capability for clandestine work overseas. They were required to develop physical and intellectual skills which exhibited aggression and ruthless efficiency. They were described from the Bar table, without demur, as "young men, apparently highly motivated, who were in the course of a training exercise to prepare themselves for tasks in defence of this country at great risk to their own lives". Of course, it was not contemplated that their training in Australia would require them to commit criminal offences. The plaintiffs allege that they have not done so and it is not said in the case that they have. They say that they believed, and it is not denied that they so believed, that all necessary advices had been given and authorities obtained to ensure that the exercise could be carried out without the commission of any offences. Furthermore, when consideration is given to the facts in the stated cases concerning the requirements of national security there is every reason to conclude that the plaintiffs understood it to be the fact and that it was the intention of the parties that the confidentiality of their association with ASIS would be jealously safeguarded by the Commonwealth.
10. The alternative submission of the Commonwealth is that, accepting the
intention of the parties to be as we have expressed it,
nevertheless the Court
will not lend its aid to the enforcement of the Commonwealth's obligation of
confidentiality because to do
so would be contrary to public policy. It is
accepted that the underlying principle is that expressed by Isaacs J. in
Wilkinson
v. Osborne [1915] HCA 92; (1915) 21 CLR 89, at p 97:
"In my opinion the 'public policy' which aAnd, at p. 98, Isaacs J. continued:
Court is entitled to apply as a test of validity to
a contract is in relation to some definite and
governing principle which the community as a whole
has already adopted either formally by law or
tacitly by its general course of corporate life,
and which the Courts of the country can therefore
recognize and enforce. The Court is not a
legislator: it cannot initiate the principle; it
can only state or formulate it if it already
exists.
The rule of law as to contracts against public
policy is constant - namely, that every bargain
contrary to such a social governing principle is
regarded as prejudicial to the State, or, in other
words, contrary to 'public policy', or, as it is
sometimes called, 'policy of the law', and the
State by its tribunals refuses to enforce it."
"The Courts refuse to give effect to such a
bargain, not for the sake of the defendant, not to
protect any interest of his - indeed, they do not
fail to notice that his failure to abide by his
agreement sometimes adds dishonesty to
illegality - but they refuse to enforce the bargain
for the sake of the community, who would be
prejudiced if such a bargain were countenanced."
11. Interference with the administration of justice has long been recognized
as a head of public policy to which the courts will
have regard when asked to
enforce a contract. In Collins v. Blantern [1799] EngR 101; (1767) 2 Wils. KB 347, at p 350 [1799] EngR 101; (95
ER 850, at p 852), Wilmot
L.C.J. said of a contract to stifle a prosecution
for perjury:
"This is a contract to tempt a man to transgressIn Gartside v. Outram (1856) 26 LJ Ch 113, Wood V.C. held that confidential communications involving fraud were not privileged from disclosure. At p 114, the Vice-Chancellor said:
the law, to do that which is injurious to the
community: it is void by the common law; and the
reason why the common law says such contracts are
void, is for the public good. You shall not
stipulate for iniquity. All writers upon our law
agree in this, no polluted hand shall touch the
pure fountains of justice."
"The true doctrine is, that there is no confidenceEach of these cases were concerned with actual crime or fraud. But in Egerton v. Brownlow (Earl) [1853] EngR 885; (1853) 4 HLC 1, at p 163 [1853] EngR 885; (10 ER 359, at p 424), Lord Lyndhurst stated the principle in broader terms:
as to the disclosure of iniquity. You cannot make
me the confidant of a crime or fraud, and be
entitled to close up my lips upon any secret which
you have the audacity to disclose to me relating to
any fraudulent intention on your part: such a
confidence cannot exist."
"It is admitted, that any contract or engagementIn Howard v. Odhams Press, Ld. (1938) 1 KB 1, the Court of Appeal refused to enforce a contract which would have prevented the defendants from giving information to third parties which might assist them to secure the conviction of persons who had defrauded them in the past or to prevent the commission of frauds against them in the future. At pp. 30-31, Slesser L.J. said:
having a tendency, however slight, to affect the
administration of justice, is illegal and void."
"It may be said that the particular facts on whichIn Initial Services Ltd. v. Putterill (1968) 1 QB 396 the Court of Appeal came to a similar conclusion, holding that the exceptions to the implied obligation of a servant not to disclose information or documents received in confidence extended to any misconduct of such a nature that it ought in the public interest to be disclosed to one who had a proper interest to receive it. The misconduct in question in that case centred on conduct alleged to be contrary to provisions of the Restrictive Trade Practices Act 1956 and misrepresentation in relation thereto. At p. 405, Lord Denning M.R. referred to the decision of the Court of Appeal in Weld-Blundell v. Stephens (1919) 1 KB 520 (affirmed on appeal (1920) AC 956), saying:
this agreement is said to be illegal are not those
precisely of stifling a prosecution or compounding
a crime; but the agreement would in my opinion have
the necessary effect of restricting the opportunity
which the defendants and others might otherwise
possess to assist the authorities in the
investigation of, and, if necessary, in the
prosecution of the alleged crimes."
"In Weld-Blundell v. Stephens, Bankes L.J.Weld-Blundell v. Stephens was a case where the duty to maintain confidentiality was not excluded where the consequence of disclosure was the exposure of a civil wrong which had been committed. The decision of the Court of Appeal in Initial Services Ltd. v. Putterill was referred to with apparent approval in British Steel Corporation v. Granada Television Ltd. (1981) AC 1096 by Lord Wilberforce (at p 1169) and by Lord Fraser of Tullybelton (at p 1201). It is unnecessary to explore all the circumstances in which the enforcement of a duty of confidentiality may lead to a perversion of the administration of justice and so injure the public welfare. For an extensive review of the cases, see the judgment of Sheppard J. in Allied Mills Industries Pty. Ltd. v. Trade Practices Commission (1981) 34 ALR 105, at pp 126-141.
rather suggested (at p 527) that the exception
(that is, the exception to an obligation of
confidentiality) is limited to the proposed or
contemplated commission of a crime or a civil
wrong. But I should have thought that was too
limited. The exception should extend to crimes,
frauds and misdeeds, both those actually committed
as well as those in contemplation, provided
always - and this is essential - that the
disclosure is justified in the public interest.
The reason is because 'no private obligations can
dispense with that universal one which lies on
every member of the society to discover every
design which may be formed, contrary to the laws of
the society, to destroy the public welfare': see
Annesley v. Anglesea (Earl) (1743) LR 5 QB
317n; 17 State Tr 1139."
12. The relevant circumstances of the present cases are that although the Commonwealth is under no legal duty to disclose the names of the plaintiffs to the Victorian Chief Commissioner, it desires to do so and the disclosure of the names will assist the Commissioner in his investigation of criminal offences which he believes to have been committed. The question is whether the public interest in the administration of justice precludes the Court in the exercise of its equitable jurisdiction from restraining that disclosure.
13. It is no doubt true, as Mr. Strahan of Counsel appearing for the plaintiff G submitted, that there is a public interest in the enforcement of contractual rights which must be overborne by a greater public interest before injunctive relief should be denied. He argued that in the present cases the strength of the public interest in the administration of justice was diminished by a number of factors, namely, the positive belief of all the plaintiffs that they had not engaged in any unlawful conduct, the absence of any specific allegation against any of the plaintiffs, and the absence of serious consequences flowing from the exercise. Be that as it may, the conclusion is inescapable that there was an apparently serious breach of the peace, there was what appeared to be an act causing wilful damage to property and a number of masked men were seen in public carrying sub-machine guns. Moreover, the Deputy Commissioner of Police has sworn an affidavit in which he deposes to his belief that the participants committed breaches of the criminal law and that he must know the identity of the participants if he is to carry out a proper investigation. It follows that while there may be cases where the triviality of the alleged breaches of the criminal law will not lead a court to withhold relief by way of injunction to restrain a threatened breach of a duty of confidentiality such a submission cannot succeed in this case.
14. In our view, therefore, leaving aside for the moment any consideration of the question of national security, the only conclusion that is open in the present cases is that if the Court was to grant the plaintiffs the permanent injunctions which they seek it would be elevating their private right to confidentiality above the interest of the community in the efficient investigation of alleged breaches of the law. The Commonwealth seeks to advance that interest, yet the injunctions would prevent it from doing so. The administration of justice, and in particular the enforcement of the criminal law, must always rank highly in any assessment of the public interest.
15. As Lord Simon of Glaisdale said in D. v. N.S.P.C.C. [1977] UKHL 1; (1978) AC 171, at p
231:
"Thus it is clear that the administration ofIn coming to the conclusion that the injunctions should not be granted we do not draw any distinction between the plaintiffs. The considerations and the result must be the same whether the duty of confidentiality arises from a term of the contract of employment or from the operation of principles of equity on the nature of the relationship. Indeed, the conclusion must be a fortiori in the case of a threatened breach of an equitable right to confidence.
justice is a fundamental public interest. But it
is also clear that it is not an exclusive public
interest. It is an aspect (a crucially important
one) of a broader public interest in the
maintenance of social peace and order."
16. However, the plaintiffs next invoke considerations of national security to support their claim. As Lord Simon of Glaisdale said in the passage we have just cited, the administration of justice, important though it is, may on occasions have to give way to an even more compelling public interest. In a proper case, national security may well satisfy that description: Alister v. The Queen [1984] HCA 85; (1984) 58 ALJR 97, at p 109. The plaintiffs rely in particular on the agreed facts contained in the stated cases, from which we have set out extracts earlier in these reasons, contained in pars 31 and 34. Those paragraphs show that the original advice given by ASIS to the Commonwealth was that the disclosure of the names of the participants would be prejudicial to the national and international security of Australia, that for the achievement of its objects and purposes it is generally necessary that ASIS and the Commonwealth ensure that the identity of the plaintiffs be kept confidential, that the disclosure to foreign intelligence services of the identity of the plaintiffs would be prejudicial to the international and national security of Australia and that if the names of the plaintiffs were made public this would be prejudicial to the national and international security of Australia. Armed with the agreement of the Commonwealth on those significant matters, the plaintiffs argue that any matter of public policy derived from the public interest in the efficient administration of the criminal law must give way.
17. However, the Commonwealth argues primarily that any question of national
security is wholly irrelevant to the plaintiffs' claim.
In the alternative,
while it admits the truth of the matters to which we have adverted it asserts
that as matters now stand the
disclosure of the names of the participants to
the Victorian Chief Commissioner of Police would not prejudice the national
security
of Australia. The significance of the phrase "as matters now stand"
is three-fold. In the first place, the Chief Commissioner has
given an
undertaking as described in par. 33 in the cases from which extracts have been
set out earlier in these reasons. In the
second place, the Victorian
Parliament has enacted the Criminal Proceedings Act 1984 (Vic.) specifically
to empower the courts of
that State to make certain orders for confidentiality
in relation to criminal proceedings arising out of the Sheraton Hotel
incident.
In the third place, the Commonwealth Parliament has enacted the
Judiciary Amendment Act 1984 (Cth), the result of which is to give
effect
throughout Australia to any orders to ensure confidentiality made pursuant to
the Victorian
Act. In introducing into the
Senate the Bill for the Judiciary
Amendment Act 1984 the Attorney-General concluded his second reading
speech
with the following
statement:
"The amendments contained in this Bill will
enable the criminal law of Victoria to take its due
course, but at the same time will provide a
procedure designed to ensure that the national or
international security of Australia, or the
physical safety of persons is not prejudiced in the
process."
18. The Commonwealth denies that there is any inconsistency between its
present stand with respect to national security and the
facts outlined in the
stated cases. It is asserted that the original advice which is set out in
par. 31 has been overtaken by the
legislative scheme which has been put in
place in Victoria and throughout the Commonwealth and by the undertaking of
the Chief Commissioner
as to the confidentiality of any investigations prior
to the institution of proceedings. It remains true to say, as is said in
sub-pars
34(e), (g) and (i), that it is generally necessary that ASIS and the
Commonwealth ensure that the identity of the participants be
kept confidential
and that the disclosure to foreign intelligence services of their identity
would be prejudicial to the national
and international security of Australia
as would be the case if their names were made public. Presumably the
Government of the Commonwealth
is satisfied, as also is the Parliament, that
disclosure of the names of the participants to the Chief Commissioner and the
conduct
of any criminal proceedings will not lead to their identity becoming
known either to foreign intelligence services or to the public.
19. If it were open to the Court to conduct as it were a balancing exercise between competing principles of public policy - as the plaintiffs urge us to do - it may be difficult for the Court to reject the present view of the Commonwealth. It is true, as is argued for the plaintiffs, that national security may be invoked by a private litigant as a reason for the Court to refrain from allowing the production of a document or oral evidence. It is the duty of the Court and not the privilege of the executive government to decide whether evidence will be admitted: Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1, at pp 38-45, 68-69. However, the considered opinion of the responsible Minister or Government on a question of public interest immunity will always carry great weight. This is particularly so where questions of national security are involved. The consequence of a decision of a court on a matter of national security which is contrary to the considered view of the government could be very serious indeed. On the other hand, that may not be the case in the present matters where it is the plaintiffs rather than the Commonwealth who are asking the Court to ensure the continued confidentiality of the identity of the plaintiffs. Such a course could in no way be seen to threaten national security. Indeed, if the scepticism of the Counsel appearing for the plaintiffs as to the efficacy of the legislative scheme or of the undertaking of the Chief Commissioner in preserving from public knowledge or from the knowledge of foreign intelligence services were to be shared by the Court - as it could well be - then notwithstanding the view of the Commonwealth the balancing exercise could result in the public interest in the administration of justice giving way to the higher public interest in the preservation of national security. In that event the injunctions to ensure continued confidentiality would be granted.
20. This discussion is predicated upon the premise that it is open to the Court to determine which of the two competing interests should prevail. But the truth is that questions of national or international security do not arise in these actions, which are brought by the plaintiffs for permanent injunctions to enforce their contractual or equitable rights. In substance, each plaintiff is suing in support of a personal right, namely, a right to have his identity kept confidential, the threatened denial of which he alleges will cause him loss, damage, embarrassment and ridicule. He is not suing, and has no standing to sue, in defence of security. The Commonwealth does not raise the question of security in these actions and, although the intention of the Commonwealth in these cases has been made known, that question cannot arise until it is first determined whether the Commonwealth is otherwise precluded from divulging the plaintiffs' identities. In other words, it is not until it is known whether the plaintiffs are entitled to their injunctions that any question of security arises. If the injunctions are refused, it is for the Commonwealth then to consider whether it is in the public interest to keep all or any of the plaintiffs' identities confidential or to disclose them. The refusal of the injunctions does not compel the Commonwealth to take one course or the other. Considerations of national and international security do not compete with the principles which govern the enforceability of the plaintiffs' contracts or any equitable obligation of confidence. Those considerations arise as a separate and subsequent matter. There is no inconsistency in saying that as a matter of public policy the Court will not enforce an obligation to keep the plaintiffs' identities confidential because that obligation has a tendency to interfere with the administration of justice, whilst at the same time recognizing that whether or not a plaintiff's identity ultimately remains confidential will depend upon the decision of the Commonwealth in the exercise of a choice which is open to it and which will be made with the public interest in national and international security in mind.
21. That being so, the conclusion follows that the plaintiffs' attempt to enforce the Commonwealth's obligation to preserve confidentiality must fail. In the result, the responsibility for the preservation of Australia's national and international security must lie squarely with the Commonwealth Government, as of course it should.
22. We would answer the questions in the stated cases as follows:
In actions M 101 of 1983, M 102 of 1983, M 103 of 1983 and
M 105 of 1983:
1. Yes
2. (a) Yes
(b) No3. There is no such enforceable duty.
(b) No3. There is no such enforceable duty.
question 3.5. Unnecessary to answer.
BRENNAN J. In five actions brought in the original jurisdiction of this Court, eleven plaintiffs seek orders restraining the Minister of State for Foreign Affairs, the previous Director-General of the Australian Secret Intelligence Service ("ASIS"), the Acting Director-General and the Commonwealth of Australia from disclosing the plaintiffs' respective identities. To preserve their anonymity and to ensure that the institution of the proceedings does not strip it away, the plaintiffs are identified merely by the letters A to K. Conscious of the risk that the plaintiffs may lose the anonymity they seek to protect if the actions were to go to trial, the parties in each action have agreed upon the stating of a case for the opinion of the Full Court pursuant to s.18 of the Judiciary Act 1903 (Cth). The cases are stated in similar terms; some of them in substantially the same terms. I shall quote the material parts of the stated cases without distinguishing among them for I do not apprehend that there is any significance in the source of the quotations for the determination of the questions of law reserved for our consideration.
2. The actions have their origin in "a special project to develop covert action capability", that being a capability which "ASIS is required to maintain ... for use in wartime or in other very special situations". Whatever a "covert action capability" may be, it "is maintained on a contingency basis". An understanding of these dim and uncertain notions is not necessary. What was done to develop the covert action capability is stated.
3. In June 1982 the then Minister of State for Foreign Affairs gave his approval to the special project. ASIS "took steps to implement the project" in August 1982. The plaintiff known as F "was asked by his superiors at ASIS to commence the project. He was responsible for the recruitment and training of persons for the project". A "very small unit was established within ASIS to recruit and train a small group" who "were to be part time agents who would come together for periods of intensive training but would otherwise pursue their normal civilian occupations". Between 11 and 30 November 1983, the plaintiffs A, B, C, D, E and G temporarily left their civilian employment "and were involved in a training course organized by ASIS as part of the project". The plaintiff K, a member of the Australian Regular Army "was also involved in the conduct of the first part of the course". The final phase of the training period was a particular "exercise". The eleven plaintiffs all "participated in the exercise" on 30 November 1983 at the Sheraton Hotel in Melbourne.
4. The origin of the exercise is described in three of the stated cases in
these terms:
" Some of the participants ('the team') had earlierThe team had been "supplied with firearms and blank ammunition by an ASIS officer. A sledge hammer for possible use in the exercise was purchased by them with the approval of the said officer".
been told by an officer of ASIS that their job
during the exercise was to conduct surveillance
on a man who, for the purpose of the exercise was
held 'hostage' by two 'guards'. Subsequently,
the team was advised by the said officer that
they were required to effect the rescue of the
participant hostage from a room on the tenth
floor of the hotel where again for the purpose of
the exercise, he was being held by the two
guards. A written instruction to this effect was
given to the participant team leader. It
required the rescue to be effected early in the
morning of 30th November, 1983, using the minimum
force necessary."
5. In addition to "the team", there were those participants who played the
roles of hostage and guards. One of the participants,
the plaintiff K, had
the role of "providing advice on any military aspects of the exercise" and he
attended the Sheraton Hotel "to
advise on tactical procedures if required".
He was asked "to wait in the foyer of the hotel and observe if there was any
reaction
from other persons in the hotel to the course or conduct of the
exercise". This is what happened:
" In the course of the exercise, one of the
participants accompanied by four other
participants used a sledge hammer to break open a
door to the room on the tenth floor of the hotel
in which the participant hostage was held. When
the manager of the hotel went to investigate what
was happening, he was met by one of the
participants wearing a mask. The manager and the
participant entered the lift from which the
manager had emerged. They jostled one another
until the lift arrived at the ground floor, the
participant telling the hotel manager that nobody
would be hurt. Subsequently, a group of
participants, most of whom were wearing party
masks, emerged from the hotel lift at ground
floor level and made their way through the hotel
past guests and staff to an awaiting car. They
carried firearms, including a pistol and two
sub-machine guns. The motor car, driven by
another participant, drove off but was
subsequently stopped by members of the Victoria
Police Force. The four occupants of the motor
car were apprehended and subsequently another
participant involved in the incident at the hotel
was questioned by the Police. During the conduct
of the exercise, K remained in the foyer of the
hotel and knew nothing of the events which were
occurring in the lift or on the tenth floor."
6. It is not appropriate to comment upon the offences which are revealed or
suggested by this paragraph of the stated cases, much
less to consider whether
the plaintiffs or any of them are criminally responsible for those offences.
But it is entirely clear that
neither ASIS nor the Minister nor the Executive
Government could confer authority upon any of the plaintiffs to commit an
offence
or immunity from prosecution for an offence once committed. The
incapacity of the Executive Government to dispense its servants
from obedience
to laws made by Parliament is the cornerstone of a parliamentary democracy. A
prerogative to dispense from the laws
was exercised by mediaeval kings, but it
was a prerogative "replete with absurdity, and might be converted to the most
dangerous
purposes" (Chitty Prerogatives of the Crown (1820), p.95). James II
was the last King to exercise the prerogative dispensing power
(see Holdsworth
A History of English Law, vol.vi, pp.217-225), and the reaction to his doing
so found expression in the Declaration
of Right. It was there declared that
"the pretended power of dispensing with laws, or the execution of laws, by
regal authority,
as it hath been assumed and exercised of late, is illegal".
By the Bill of Rights the power to dispense from any statute was abolished
(1
Will. & Mar. Sess.2, c.2, s.XII). Whatever vestige of the dispensing power
then remained, it is no more. The principle,
as expressed
in the Act of
Settlement, is that all officers and ministers ought to serve the Crown
according to the laws. It is
expressed more
appropriately for the present
case by Griffith C.J. in Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139, at pp 155-156:
" If an act is unlawful - forbidden by law - aThis is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when Executive Governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies. Then it seems desirable to the courts "that sometimes people be reminded of this and of the fate of James II, as Scrutton L.J. reminded the London County Council" in R v. The London County Council. Ex parte The Entertainments Protection Association (1931) 2 KB 215, at p 229 (per Windeyer J. in Cam and Sons Pty.Ltd. v. Ramsay (1960) 104 CLR 247, at p 272).
person who does it can claim no protection by
saying that he acted under the authority of the
Crown."
7. It is desirable to call the principle to mind in this case, for some
paragraphs included in the stated cases could be relevant
to the questions of
law which arise only if ministers or the senior officers of ASIS were
competent to authorize the doing of unlawful
acts. The cases state that the
Minister of State for Foreign Affairs in June 1982 "gave his approval" to the
special project; his
successor in March 1983 "was advised of the existence of
the project and of its objects and gave his approval". The case in F's
action
states that on 26 November 1983 the then Director-General of ASIS "was
informed that firearms would be carried, but concealed
and he gave the
exercise his approval. On 30th November 1983 the (then Director-General) was
informed of a plan which was presented
to him by the team leader. This plan
was that one participant would dress as a waiter and ask that the door to the
suite in which
the hostage was held be opened so that he could obtain a
signature to a parcel delivery. If the subterfuge plan failed, the
participants
would break the lock on the door by force. With one reservation,
the use of force", the then Director-General and F "approved the
plan". The
cases state that at all material times each of A, B, C, D, E, G and K held an
honest belief that:
" (a) ASIS was an important branch of the
Australian Government;
(b) anything he was instructed or authorized to
do by ASIS had the authority of the
Australian Government;
(c) he was authorized to carry weapons in the
hotel and other places and to break down the
door of the hotel room in which the hostage
was held if this was necessary to carry out
the exercise successfully;
(d) the plan of the participants' team leader hadIt is further stated:
been approved. This plan was that one
participant would dress as a waiter and ask
that the door to the suite in which the
hostage was held be opened so that he could
obtain a signature to a parcel delivery. If
the subterfuge plan failed, the participants
would break the lock on the door by force."
" At the commencement of the exercise, the team wasThese parts of the stated cases seem calculated to raise, perhaps obliquely, the plea of superior orders sometimes raised by military personnel (cf. O'Connor and Fairall Criminal Defences (1984) pp.136-138; Oppenheim's International Law 7th ed. (1967), pp.568-572). It may be that the ASIS officers who induced the beliefs stated and who issued the "exercise cards" regarded ASIS as a para-military force and encouraged the plaintiffs so to regard it. That may be a correct view. But if that view engenders the proposition that participation in an ASIS exercise exempts ASIS officers from obedience to the ordinary laws of the land, the proposition must meet with the same reply that Hale C.J. gave some 300 years ago to a captain of military who asserted exemption from the jurisdiction of the ordinary courts:
given Commonwealth exercise cards by ASIS
personnel. These cards state that the bearer is
on a Commonwealth exercise. The team was
instructed by ASIS personnel to show these cards
should they be questioned as to their activities
during the exercise."
" Whatever you military men think, you shall find(The Case of Captain C (1673) 1 Ventris 250, at p.251 (86 E.R.167, at p.168)).
that you are under civil jurisdiction, and you
but gnaw a file, you will break your teeth ere
you shall prevail against it."
8. The Commonwealth Parliament has made no law granting to ASIS officers exemption from any law; it is unnecessary to consider whether its constitutional powers could support such a law in times of peace. It is sufficient to say that none of the approvals given is capable of affecting any criminal responsibility which a particular plaintiff may have incurred in the exercise at the Sheraton Hotel. The exercise cards with which they were issued were no passport to immunity from the operation of the ordinary laws of Victoria.
9. As a result of the exercise at the Sheraton Hotel the Victorian Police
propose to investigate whether any of the crimes following
were committed:
" (a) possession of a prohibited weapon contrary to
section 32 of the Firearms Act 1958 (Vic.);
(b) criminal damage contrary to section 197 of
the Crimes Act 1958 (Vic.);
(c) burglary contrary to section 76(1)(b)(ii) of
the Crimes Act 1958;
(d) having an article for use in burglary
contrary to section 91(1) of the Crimes Act
1958;
(e) affray;
(f) wilful damage contrary to section 9 of the
Summary Offences Act 1966 (Vic.);
(g) common assault;
(h) assault with a weapon contrary to section 23
of the Summary Offences Act 1966;
(i) assault in company contrary to section 23 of
the Summary Offences Act 1966; and,
(j) possession of a silencer contrary to sectionThe Victorian Police propose to apprehend offenders and to bring charges against them. The form in which those facts are stated in the cases is not satisfactory (it is said that the Deputy Commissioner "has sworn an Affidavit in which he deposes" to those facts) but the fact that an investigation is to be conducted is stated in a subsequent paragraph. The Premier of Victoria has requested the Minister of State for Foreign Affairs to provide the names of the plaintiffs to the Chief Commissioner of Police for Victoria who "has agreed to take any measures necessary to preserve the confidentiality of the identity of the participants so far as practicable to do so in the conduct of his investigation of breaches of the criminal law alleged to have arisen out of the exercise and in the conduct of any prosecution arising out of such investigation". The Minister of State for Foreign Affairs, the present Acting Director-General of ASIS, and the Commonwealth "desire to comply with the request of the Chief Commissioner to disclose the names of the participants to him the disclosure of which he alleges will enable him to investigate alleged breaches of the criminal law, to apprehend offenders and to bring charges against them".
34 of the Firearms Act 1958."
10. The plaintiffs have obtained interim orders from this Court restraining the defendants from disclosing the plaintiffs' names to any person. They seek permanent restraining orders to prevent that disclosure. Except in K's case, the plaintiffs rely upon the terms of their respective contracts of employment with the Commonwealth. In all cases including K the plaintiffs assert a duty owed to them by the Commonwealth not to disclose their respective identities.
11. The existence of contracts between the Commonwealth and each of the
plaintiffs except K is stated in the respective cases.
The cases do not state
how the Commonwealth became a party to those contracts. No statute authorizes
the establishment of ASIS,
the employment of its officers or the making of
contracts on behalf of the Commonwealth. Like the British Security Service,
ASIS
is neither established by statute nor recognized by the common law; it
has no defined status (Brownlie's Law of Public Order and
National Security
2nd ed. (1981) p.307). ASIS "was originally established in 1952 and now
operates under the authority of a 1978
Cabinet Directive"; the Minister of
State for Foreign Affairs is "responsible for ASIS which forms part of the
activities carried
on by the Commonwealth". Though ASIS was not established
and is not governed by statute, Parliament has appropriated moneys for
ASIS:
see Appropriation Act (No.1) 1983-84 (Cth), Sched.2 Div.319. The authority of
the Commonwealth (that is, the Crown in right
of the Commonwealth) to
establish and, subject to appropriation, to maintain ASIS must rest in the
prerogative power of the Commonwealth.
Having regard to what is stated in the
cases and to the course of the argument, it may be assumed for present
purposes that the
prerogative power of the Crown in right of the Commonwealth
has been validly exercised to employ ASIS officers and that the plaintiffs
were so employed (cf. New South Wales v. Bardolph [1934] HCA 74; (1934) 52 CLR 455, at pp
462, 495-496, 502-503, 508). The cases
state that the
respective contracts
between the Commonwealth and
each of the plaintiffs except K contain the
following term:
" It was a term of each of (the plaintiffs'
contracts) of employment with the Commonwealth
that his identity would be kept confidential, and
in particular, except insofar as might be
necessary for the conduct of the functions of
ASIS, there would not be disclosed to any person:
(a) the name, address, occupation or any other
particular identifying or likely to identify
him as a person who has worked for ASIS;
(b) any act or thing done by him in the course of
his training or work for ASIS."
12. The defendants' opening submission invited the Court to read down this
term by treating the language of the stated cases as
the text of a contract
and by construing that text so as to create a more qualified obligation of
confidentiality than the obligation
expressed by the stated cases. But the
stated cases do not purport to set out the text of the contracts, written or
oral, from which
the content of the term is to be derived. They set out the
relevant term of the respective contracts as an ultimate fact. Order
35
r.1(2) provides that a special case "shall concisely state such facts and
documents as are necessary to enable the Court to decide
the questions raised
by the special case". The parties cannot bind the Court to a proposition of
law that is expressed or implied
by the stated case, but the Court is not at
liberty to find any facts inconsistent with what the parties have concurred in
stating.
The Court cannot find the content of the term to be more qualified
than the cases state it to be. If the cases had stated a contractual
text
which had to be construed in order to define the content of the contractual
term, the defendant would have been at liberty to
argue for a qualified
construction, but the Court must take it to be a fact that a promise was made
to each of the plaintiffs except
K in the terms stated in the cases. It is
immaterial that O.35 r.1(4) permits the drawing of inferences (a provision
different from
the rule which governed the case stated in R v. Rigby [1956] HCA 38; (1956)
100 CLR 146). There is no room for an inference that
the respective
promisees
were in fact promised something different
from what is stated in the cases.
It may be a question of law,
however, whether
the person who in fact made the
promise had authority
to do so and whether the promise is enforceable against
the
party whom it purports
to bind.
13. The plaintiffs are entitled to found their claim for relief on the footing that the persons who employed them promised (as the cases state) that the Commonwealth would keep their identity confidential and would not disclose that identity to anyone except in so far as might be necessary for the conduct of the functions of ASIS. The cases state that disclosure of the plaintiffs' identities to the Commissioner of Police is "not necessary for the conduct of the functions of ASIS". The question of law that arises is this: is the Crown in right of the Commonwealth bound by such a promise? The primary question is not whether, in the circumstances stated in the cases, the promise should be enforced. That question arises contingently upon the Crown in right of the Commonwealth being bound in law by the promise.
14. The promise stated in the cases is susceptible of observance in many situations. The relevant situation in which the plaintiffs seek to have the promise enforced is one where criminal offences are reasonably suspected to have been committed, and where the responsible police authorities ask for the identity of the persons who are known to have been involved in the events which have given rise to the suspicion of crime to assist the police in their investigation. The term of the contract as it is stated to be in the cases embraces that situation. The Court is therefore constrained to treat the contract as purporting to bind the Commonwealth to refuse to disclose to the responsible police authorities the identity of the plaintiffs if the plaintiffs become involved in an ASIS exercise which causes the police reasonably to suspect that criminal offences have been committed and reasonably to request disclosure of the plaintiffs' identity to assist in their investigation into the suspected offences and into the plaintiffs' involvement in those offences. We are not concerned with a purported contract which binds the Commonwealth to exercise a discretion about disclosing a plaintiff's identity. We are concerned with a purported contract which in effect bargains away the Executive Government's discretion to act according to its own appreciation of the exigencies of national security on the one hand and the enforcement of the law on the other. Each of the contracts on which the plaintiffs rely purports to deny to the Executive Government a discretion to disclose or to refrain from disclosing a plaintiff's identity according to its own view as to the course which better serves the public interest. The contract purports to bind the Commonwealth to refuse to disclose a plaintiff's identity even though the Executive Government is of the view that, in the public interest, that identity should be disclosed to assist the police in their investigation into the plaintiff's involvement in offences which are reasonably suspected to have been committed.
15. In my opinion the Crown in right of the Commonwealth is incapable of binding itself by such a contract and none of its servants could have had authority to make a contract containing the term stated in the cases. Like the contract in Howard v. Odhams Press,Ld. (1938) 1 KB 1, it would "have the necessary effect of restricting the opportunity which the defendants and others might otherwise possess to assist the authorities in the investigation of, and, if necessary, in the prosecution of the alleged crimes". Slesser L.J. said of a contract which he thus described that "it was in the public interest that nothing should be agreed by the defendants which might have the effect of preventing the authorities knowing the facts" (at pp.31 and 33). The objection to the promise not to disclose is not that it runs counter to a legal duty to disclose, but that it purports to deny to the Executive Government a discretion, whatever the circumstances may be, to disclose in order to assist in the investigation of a criminal offence. The variety of circumstances comprehended by the promise and the unqualified obligation not to disclose in any circumstances (except for the purposes of ASIS) would preclude the Executive Government from furnishing information that might otherwise be available to assist the police to enforce the law. Such a promise has a tendency adversely to affect the administration of justice and is void (Egerton v. Brownlow (Earl) [1853] EngR 885; (1853) 4 HLC 1, at p 163 [1853] EngR 885; (10 ER 359, at p 424); Horne v. Barber [1920] HCA 33; (1920) 27 CLR 494, at pp 499-500). Take an extreme case. If one of the plaintiffs involved in the "exercise" had live ammunition in his gun and fired it as he was leaving the hotel and killed an innocent bystander, the promise of non-disclosure on which the plaintiffs rely would preclude the Executive Government from disclosing the identity of the killer. It may be argued that the promise was not intended to cover extreme cases, but the difference between such a case and the present lies only in the seriousness of the offences suspected to have been committed. Yet the promise is in absolute terms. If the scope of the promise extends to the present case, it extends to the extreme case and it cannot be given a disparate operation.
16. It is easier to accept that the Executive Government should not disclose
identities if the offence suspected to have been committed
is at the other end
of the criminal calendar - say, a minor traffic offence. But the range of
offences and the diversity of circumstances
in which they are committed merely
illustrate the public interest in the Commonwealth's reservation of its
ability to decide on its
response to a request for information to assist in
criminal investigation according to the circumstances of each case. In
Commissioners
of Crown Lands v. Page (1960) 2 QB 274, Devlin L.J. said (at p
291):
" When the Crown, or any other person, is
entrusted, whether by virtue of the prerogative
or by statute, with discretionary powers to be
exercised for the public good, it does not, when
making a private contract in general terms,
undertake (and it may be that it could not even
with the use of specific language validly
undertake) to fetter itself in the use of those
powers, and in the exercise of its discretion."
17. Though the ability to disclose information is not a power, the principle
stated by Lord Devlin (and cited with approval by Mason
J. in Ansett Transport
Industries (Operations) Pty.Ltd. v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54, at p
78) applies equally
to that ability
to act. The Crown cannot bargain away its
ability to act in the public
interest. In Sykes v. Director of Public
Prosecutions (1962)
AC 528 Lord Goddard spoke, at p 567, of "the duty of every
citizen
to assist in the detection and suppression
of crime". That may
be
pitching it too high if his Lordship had a legal rather than a
moral duty in
mind, especially when misprision
of felony has gone
from the criminal calendar
in Victoria with abolition of the distinction
between felonies and
misdemeanours (see
Crimes (Classification
of Offences) Act 1981 (Vic.),
inserting ss.322B and 326 in the Crimes Act 1958 (Vic.)). But the ability of
any citizen to assist in the detection and suppression of crime cannot be
bargained away except where
the crime is not a matter of public concern (cf.
Kerridge v. Simmonds (1906) 4 CLR 253). That is not to say that
obligations
of
confidence cannot be accepted by contract or imposed by law but such
obligations cannot
enjoin silence where disclosure
is reasonably
required by
the police (or other law enforcement agency) to assist in the investigation
of
crimes reasonably suspected
to have been
committed and such disclosure is
justified in the public interest (cf. Initial Services
Ltd. v. Putterill
(1968) 1 QB
396, at p 405).
A term of a contract not to disclose confidential
information though disclosure is
reasonably so required to be
made and though
disclosure is in the public interest is void. A general term not to disclose
information
might be read down so as
to permit disclosure
in those
circumstances, but unless disclosure in those circumstances is permitted the
term is void whether the
contract be made by
the Crown or by a subject. The
term is void because it is contrary to public policy.
The Crown has no
capacity
to bind itself by
a term which is contrary to public policy, and no
servant or agent of the Crown has
or can be given authority to
bind the Crown
by
such a term. The powers of the Crown cannot be exercised contrary to what
the law
recognizes as public policy.
It follows that
the Crown's ability to
assist in the investigation of crimes reasonably suspected to
have been
committed cannot
be fettered by an
unqualified contractual obligation not to
disclose the identity of a person: circumstances
may arise which justify
disclosure in
the public interest.
18. Indeed, such a contract, if made to protect the identity of a servant of
the Crown should the servant commit an offence, would
give immunity from
prosecution so far as the concealing of the servant's identity could achieve
it. In substance, though not in form,
the servant would be dispensed by the
Crown from responsibility to obey the criminal law. That was the evil which
the Declaration
of Right was concerned to condemn. No consideration of
national security can warrant either the Crown's dispensation of its servant
from responsibility for the commission of a criminal offence nor its promise
not to disclose his identity if he is involved in the
commission of a criminal
offence or in what is reasonably suspected to have been the commission of a
criminal offence. The need
for a secret service cannot be met by promising
its officers anonymity to protect them if they choose, whether for good motive
or
bad, to commit crimes. In the absence of Parliamentary dispensation, the
Executive Government can promise no immunity from the ordinary
processes of
the law. If such a promise were given and honoured irrespective of the
circumstances which evoked its observance, it
would be an inducement to crime
wholly inconsistent with the rule of law. What Clark J. said in delivering
the opinion of the Supreme
Court of the United States in Mapp v. Ohio [1961] USSC 142; 367 US
643 (1961), at p 659 [1961] USSC 142; (6 L Ed 2d 1081, at p 1092), is manifestly true:
" Nothing can destroy a government more quicklyNo agency of the Executive Government is beyond the rule of law. ASIS must obey the law and, if its officers do not, the Executive Government must be free to do what it thinks right in the public interest in the circumstances as they occur. It makes no difference that the Executive Government of the Commonwealth is not charged with the execution of the criminal laws of Victoria; it is incapable of promising ASIS officers that it will not assist the Crown in right of Victoria from executing those laws when ASIS officers are involved in what are reasonably suspected to be criminal offences and the Executive Government thinks that it is in the public interest to assist.
than its failure to observe its own laws, or
worse, its disregard of the charter of its own
existence."
19. The stated cases set out a number of grounds of national security which
militate against disclosure of the identity of the plaintiffs
and it has been
argued that those considerations should be put in the balance to determine
whether enforcement of a promise of non-disclosure
is contrary to the public
interest. I do not list all the considerations stated in the cases. It may
well be contrary to the interests
of national security to do so. But a
recital of the considerations which are public knowledge suffices to show that
there are indeed
countervailing considerations which might lead the Executive
Government to refrain from disclosing the identity of ASIS officers
in
particular circumstances. The cases state:
" (a) The maintenance by ASIS of an ability
effectively to discharge its functions is of
great importance to the national security of
Australia;
(b) In order effectively to discharge its
functions ASIS requires to recruit and train
suitable persons to work on its behalf;
(c) For the purpose both of training new
recruits and maintaining the capability of
existing officers ASIS requires from time to
time to conduct training exercises;
(d) Further, in order properly and efficiently
to discharge its functions, ASIS requires to
maintain contact and liaison with and the
goodwill and co-operation of:
(i) similar organisations in some foreign
countries;
(ii) officers and agents involved in
gathering intelligence in foreign
countries;
(e) For the achievement of its objects and
purposes, it is generally necessary that
ASIS, and the Commonwealth by its servants
and agents, ensure and be seen by any person
concerned to enquire or investigate to
ensure, that the identity of each of A, B,
C, D, E, G and K be kept confidential and in
particular, except insofar as might be
necessary for the conduct of the functions
of ASIS, that there be not disclosed to any
person:
(i) the name, address, occupation and any
other particular identifying or likely
to identify him as a person who has
worked for ASIS;
(ii) any act or thing done by him in the
course of his work for ASIS.
(g) The disclosure to foreign intelligence
services of the identity of A, B, C, D, E, G
and K would be prejudicial to the
international and national security of
Australia;".
20. If the Crown in right of the Commonwealth were bound by an unqualified
promise not to disclose the plaintiffs' identities, these
considerations of
national security would reinforce the claim for an injunction. The Pelion of
national security would be piled
on the Ossa of contractual right. Absent the
contractual right, however, and considerations of national security are
irrelevant
to the judicial resolution of these cases. This Court is not
engaged in reviewing the exercise of the Executive Government's decision
- a
decision made in exercise of the discretion which the contract is incapable of
removing.
21. Where a discretion is exercised by the Executive Government, one might expect that, in the opinion of the Government, considerations of national security would sometimes outweigh considerations in favour of disclosing an ASIS officer's identity to assist law enforcement agencies. But the balancing of those considerations is for the Executive, not for the Court. The Court was invited to balance those considerations as though it were engaged in deciding whether an Executive claim of privilege from production of documents should be upheld: cf. Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1. There is no occasion for the Court to decide where the balance lies in the present case. It is not necessary now to consider whether a court has jurisdiction judicially to review the exercise of a prerogative power. We were referred to the recent decision of the Court of Appeal in England in The Council of Civil Service Unions v. The Minister for the Civil Service (unreported, 6 August 1984) where the Court held that it had "no power to review the exercise of the royal prerogative in the context of national security" but the questions there discussed have no present relevance. It was not argued here that, apart from contract, considerations of national security limit the Executive Government's discretion to disclose the plaintiffs' identities. The difficulties which would confront a court whose jurisdiction is invoked to review the exercise of such a discretion are obvious. They are powerfully stated by the Supreme Court of the United States in Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corporation [1948] USSC 46; 333 US 103 (1948), at p 111 [1948] USSC 46; (92 L.Ed. 568, at p 576). They need not trouble this Court in deciding the present case.
22. In the absence of a binding contract, the Executive Government was at liberty to exercise its own judgment as to whether it should disclose the plaintiffs' identities to the Victorian Police Commissioner or whether considerations of national security justified a refusal to do so. That was a matter for executive discretion, not for judicial decision. The confidentiality of ASIS officers' identities can rest on no more certain a foundation than executive judgment exercised honestly having regard to considerations of national security and to the public interest in the enforcement of the law. To some officers of ASIS, that foundation may and, in the present case, no doubt does seem to be insecure, but that is an inherent characteristic of a secret service whose existence depends upon executive fiat and whose working depends on mutual trust between its officers and the Executive Government. The officers of ASIS should know, and if they do not know they should be told, that they are bound - as every citizen is bound - by the criminal law and that no government and no superior officer has power to dispense them from the law or to promise them anonymity if they break it. Some passages in the case stated in action No.M104 of 1983 suggest that a different view has gained some currency. Unless the legislature has power to intervene and does intervene to grant an exemption from the law, the officers of ASIS cannot be granted relief by the courts that is not available to other citizens whose involvement in suspected criminal offences is under investigation. If this be thought too absolute a view to permit the effective training of a force to safeguard the nation's security, the remedy does not lie in a judicial dispensation from the law. Though the courts must interpret the law, they are bound by the law they interpret and the notion that they might grant a dispensation from the law affecting the investigation of criminal offences subverts the very purpose of their being. More, it subverts the rule of law upon which our system of government depends.
23. This is no consolation to those plaintiffs who held an honest belief that what they did was authorized and in accordance with a plan approved by their superior officers. When a party who ought to know the limits of his contractual capacity is relieved from performance of a purported contract because of his legal incapacity to enter into it, the other party may rightly feel the sting of injustice (cf. Wilkinson v. Osborne [1915] HCA 92; (1915) 21 CLR 89, per Isaacs J. at p 98). Where an ASIS officer is recruited on the promise that no matter what the circumstances, his identity will not be disclosed, he might be excused for believing that the person recruiting him had authority to make that promise. Then the sting of injustice is the sharper when he discovers that he, the recruit, not the person who recruited him, must bear the burden of their common mistake.
24. From sorry start to tragic finish, the stated cases describe the breaking of a promise that should never have been made. It should be said that the Commonwealth's opening argument would have challenged the proposition that an unqualified promise was made. But, as I have said, the stated cases are opaque and the actual promises made to the plaintiffs by those who recruited them cannot be ascertained except by reference to what those cases say.
25. The plaintiffs put an alternative ground to support their claim, namely, a duty of confidentiality arising from their employment. K puts his case on that ground alone. It may be shortly disposed of. A duty of confidentiality which the Commonwealth could not undertake by contract cannot be imposed on the Commonwealth by law. No doubt there are mutual obligations of confidentiality owed by the Commonwealth and the officers of ASIS but they are not unqualified. If an express promise cannot assist the plaintiffs in the present case, equally no non-contractual duty can do so.
26. The questions must be answered as follows:
In actions Nos. M101, M102 and M103 of 1983 -
Q.1. Yes, but the term as stated is not binding on
the Commonwealth.
Q.2. (a) Yes.
(b) No.
Q.3. No.
Q.4. No.
Q.5 No.
and in action No. M104 of 1983 -
Q.1. Yes, but the term as stated is not binding on
the Commonwealth.
Q.2. (a) Yes.
(b) No.
Q.3. No.
Q.4. No.
Q.5. Unnecessary to answer.
Q.6. No.
Q.7. No.
and in action No. M105 of 1983 -
Q.1. Not applicable.
Q.2. Not applicable.
Q.3. No.
Q.4. No.
Q.5. No.
DEANE J. These five cases illustrate the abiding wisdom of the biblical injunction against putting one's "trust in men in power" (Psalms 146:3; Jerusalem Bible, p.927). The plaintiffs have been described without dissent as "upright, decent men serving their country". The two rocks upon which they founder are however propositions of law which are not to be moved to meet the exigencies of hard cases. Shortly and relevantly stated, those propositions are: (i) that neither the Crown nor the Executive has any common law right or power to dispense with the observance of the law or to authorise illegality and (ii) that the courts of this country will not enforce the terms of a promise not to disclose information in circumstances where such enforcement would obstruct the due administration of the criminal law. Since there is a general correspondence between the facts of all five cases and the variations between them are not critical to the outcome, it is convenient to refer particularly to the first action in which the plaintiffs are identified as A,B,C,D and E. I shall refer to the plaintiffs in that case as "the five plaintiffs".
2. The five plaintiffs were part-time members of the Australian Security Intelligence Service ("ASIS"). Their role in the ill-fated "exercise" based on Melbourne's Sheraton Hotel was that of men in the field whose function it was to serve and to do what they were told. They participated in the exercise "at the direction of the Commonwealth" and were given "Commonwealth exercise cards by ASIS personnel" which stated that the bearer was on a Commonwealth exercise and which they were instructed "to show ... should they be questioned as to their activities during the exercise". It is common ground that successive Ministers of State for Foreign Affairs were advised and gave their "approval to a special project to develop covert action capability" and that "the exercise" was the outcome of steps taken by ASIS "to implement" that approved "project". It is also common ground that each of the plaintiffs, at all material times, held "an honest belief" that "anything he was instructed or authorised to do by ASIS had the authority of the Australian Government". Each of the plaintiffs alleges and the Commonwealth and other defendants do not deny that "everything done by him in the course of the exercise was done pursuant to instructions given to him by an officer of ASIS who was apparently acting within his authority" and that "he had an honest belief that ASIS before instructing or authorising him to do any act or thing would obtain any authority or consent necessary to make any act or thing lawful". In short, each of the five plaintiffs was directed by the Commonwealth to participate in the exercise and followed orders believing that any authority or consent which might be necessary to make his actions lawful had been obtained.
3. The five plaintiffs' trust in the Commonwealth and in those who approved the exercise or gave them their directions or instructions was completely misplaced. The "authority or consent necessary to make any act or thing lawful" was not obtained and, in the absence of special statutory provision, was probably not within the power of any person or combination of persons to grant. The "direction" to participate in the exercise, in the manner in which it was carried out, was a direction which the Commonwealth Executive could not lawfully give. To the extent that the five plaintiffs may themselves have been involved in criminal activities, the "Commonwealth exercise cards" which they were "instructed ... to show" should they be questioned were completely ineffectual to establish legal justification. The criminal law of this country has no place for a general defence of superior orders or of Crown or Executive fiat.
4. The concerted action, the breaking open of the door with a sledge hammer, the "jostling" of the hotel manager, the firearms including automatic weapons and the masks combined to raise at least a reasonable apprehension that criminal offences had been committed and to call for investigation by the Victoria Police Force in the ordinary administration of the criminal law of that State. The Deputy Commissioner (Operations) of that Force has sworn an affidavit in which he deposes that he believes that the "participants" in the exercise "committed breaches" of the State's criminal law and that "it is essential that he identifies the participants in order to investigate properly whether any (such) crimes have been committed, to apprehend offenders and to bring charges against them". The Premier of Victoria has requested the Commonwealth to disclose the names of such participants to the State's Chief Commissioner of Police. For their part, the Commonwealth Minister of State for Foreign Affairs, the Acting Director-General of ASIS and the Commonwealth ("the defendants") all "desire to comply" with that request. The plaintiffs seek in these actions to restrain such disclosure. With the exception of one of the plaintiffs in the fifth action ("K") who relies upon a promissory representation, each plaintiff bases his claim to relief upon a provision of his "contract of employment". It is common ground that misprision of felony is defunct in Victoria and that none of the defendants is under any legal duty to disclose the relevant information either to the Chief Commissioner of Police or anyone else. In the absence of any such duty, the ordinary position under the law applies and each of the defendants is at liberty to remain silent and to preserve the confidentiality of his or its information (cf. Baker v. Campbell [1983] HCA 39; (1983) 57 ALJR 749, at p 773).
5. The stated case in the first action records that it was a "term" of the "contract of employment" of each of the five plaintiffs "with the Commonwealth" that his identity would be kept confidential and in particular that, except to the extent "necessary for the conduct of the functions of ASIS", there would not be disclosed "to any person" his name, address or any act or thing done by him in the course of his training or work with ASIS. The defendants do not suggest that disclosure of the names of any of the plaintiffs is in any way "necessary for the conduct of the functions of ASIS". Their first line of defence is a submission that the relevant provision of the contract of employment between each of the five plaintiffs and the Commonwealth does not mean what the agreed words say. Their second line of defence is that that provision of the contract is, to the extent that it would prevent disclosure to the Commissioner of Police of the identity of the relevant plaintiff in the circumstances which have arisen, void and unenforceable.
6. Ordinarily, there would be considerable force in a submission that a general term of a contract requiring the preservation of confidentiality of the identity of one of the contracting parties should be read as subject to implied limitations including a limitation that would permit disclosure to an officer of a competent police force investigating a reasonably apprehended breach of the criminal law by that party to the contract (cf. Tournier v. National Provincial and Union Bank of England (1924) 1 KB 461, at pp 472-473, 481 and 486; Smorgon v. Australia & New Zealand Banking Group Ltd. [1976] HCA 53; (1976) 134 CLR 475, at pp 488-489). There is, however, no room for the implication of such a limitation in the provision of the contract set out in the stated case in the action brought by the five plaintiffs. The parties have agreed in that stated case on the ultimate fact of the content of the relevant provision of the contract in words ("there would not be disclosed to any person") that are clear and, subject to the specified limitation in relation to the conduct of the functions of ASIS, general. Whatever may be the position with regard to disclosure under legal compulsion or in performance of legal duty, it is simply not open to the defendants to maintain that that provision of the contract should be read down to exclude the voluntary disclosure which the defendants threaten so as to give the provision the opposite effect in the circumstances of the first action to that which would be produced by the words set out in the agreed case which has been stated for the purposes of that very action.
7. On the other hand, the defendants' argument based on public policy must prevail. The relevant proposition of law was shortly stated at the commencement of this judgment. It is that the courts of this country will not lend their aid to enforce a promise not to disclose information where the circumstances are such that enforcement or insistance upon observance of the promise would obstruct the due administration of the criminal law of Australia, whether Commonwealth or State. The rationale of that proposition is that, apart from the exceptional case (such as that of a professional legal adviser) where the overall administration of the law itself requires that confidentiality be maintained, it would be contrary to public policy for the courts to enforce a right on the part of one person to insist that another fail or refuse to disclose relevant information to assist those entrusted with the ordinary administration of the criminal law in the proper investigation and prosecution of criminal activity: the enforcement by the courts of such a private right to insist that another fail or refuse to disclose relevant information would involve the courts in the obstruction of the due administration of the criminal law which is a mainstay both of the rule of law which they exist to serve and of the very existence of effective private rights. For the purposes of that proposition, the investigation of actual or reasonably apprehended criminal activity by a regular law enforcement agency of the Commonwealth or of a State is part of the administration of the criminal law. Whether enforcement or observance of a term of a particular promise of confidentiality would obstruct that administration is a question which must be determined in the context of the circumstances of the particular case. Plainly enough, the enforcement of such a promise by an order forbidding a threatened voluntary disclosure to the Commissioner of a State Police Force of the identity of the participants in joint activity which involved actual or reasonably apprehended offences against the criminal law of that State would involve obstruction of the due administration of that criminal law.
8. In stating the relevant proposition in terms of unenforceability by the courts, I have avoided the question whether a general contractual promise which, properly construed, requires the maintenance of confidentiality notwithstanding that the administration of the criminal law will be obstructed thereby is wholly or partially "illegal", "void" or "invalid". That question raises problems of terminology and substance, including the nature and effect of any distinctions between "illegal", "void", "invalid" and "unenforceable" (cf. Brooks v. Burns Philp Trustee Co. Ltd. [1969] HCA 4; (1969) 121 CLR 432, at pp 458ff; Buckley v. Tutty [1971] HCA 71; (1971) 125 CLR 353, at pp 379ff.) and the identification of the precise principles governing the residual enforceability (if any) of such a general contractual promise to the extent that the maintenance of confidentiality would not adversely affect the due administration of the criminal law. At one end of the scale is the case where the direct and immediate operation of the contractual promise to preserve confidentiality is to obstruct the due investigation of crime by concealing information about criminal activity and where it would seem clear enough that the promise itself is tainted with illegality and is void. At the other end of the scale is the case where a general promise of confidentiality is innocently given and where it is only in remote and unforeseen circumstances that an adverse effect upon the due administration of the criminal law would result from its observance: in such a case, there is much to be said for the view that the result is superseding unenforceability merely to the extent that observance of the promise would have such an adverse affect. Those questions have not, however, been investigated in argument in the present actions and they are best left to another day. I have also refrained from seeking to determine whether there is some more general principle of which the particular proposition is an emanation and, if there is, to identify and define its outer limits. The statement of the proposition by reference to whether enforcement or insistance upon observance of a promise of confidentiality would obstruct the due administration of the criminal law suffices for present purposes since it is clear that the enforcement of the promise of confidentiality in the instant cases by an order restraining the defendants from disclosing the plaintiffs' identities to the Chief Commissioner would, in the circumstances as disclosed by the stated cases, involve obstruction of the due administration of the criminal law of Victoria.
9. It was submitted on behalf of the plaintiffs that there should be weighed against any considerations of public interest favouring disclosure of their identity to the Chief Commissioner of Police a variety of countervailing considerations of public interest, including considerations going to national security, which militate against such disclosure. If this Court were required to determine the overall balance of competing considerations of public interest, there would be much force in that submission since the considerations favouring preservation of the confidentiality of the identity of the plaintiffs, though varying from case to case, are substantial and counsel for the plaintiffs have convincingly demonstrated the inadequacies of the Commonwealth-Victorian legislative scheme which offers no effective protection against disclosure of the identity of a plaintiff charged with an offence unless and until the court (be it Supreme Court or Justice of the Peace) before which he is charged is persuaded, in the exercise of a largely unconfined statutory discretion, to order that justice be administered in secret (see Criminal Proceedings Act 1984 (Vict.) and Judiciary Amendment Act 1984 (Cth)). In the present actions however, the Court is not concerned to perform the type of balancing exercise which may be involved in deciding whether disclosure or production of documents should be ordered or evidence should be compelled or received (cf. Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1, at pp 38-39,56ff.,95-96). While general considerations of public policy, such as considerations of national security, may prevail over a prima facie entitlement to discovery, production or disclosure in the actual course of the administration of justice by the courts (see, e.g., Gaming Board of Great Britain v. Rogers (1973) AC 388), they provide neither foundation nor justification for the making by a court of a positive order which would obstruct the due administration of the criminal law at the suit of one who is asserting some contractual or other private right. The proposition that the courts of this country will not lend their aid to enforce a promise not to disclose information where the circumstances are such that enforcement or insistance upon observance of the promise would obstruct the due administration of the criminal law which it is a function of the courts to advance is not a provisional one which is subject to being overruled by some perceived balancing of other considerations of public interest. In some cases, of course, a balancing process may be involved in determining whether the enforcement of a promise to maintain confidentiality has the overall effect of advancing, rather than obstructing or adversely affecting, the due administration of the criminal law. The obvious example is where the promise to maintain confidentiality is that of a professional legal adviser and relates to communications which are properly the subject of legal professional privilege (see, e.g., Weld-Blundell v. Stephens (1919) 1 KB 520, at pp 544-545,547; Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 688; Baker v. Campbell, at pp 774-775). Once it appears, however, that enforcement or insistance upon observance of such a promise would obstruct the due administration of the criminal law, the principle which precludes enforcement by the courts is operative without any further weighing process being necessary or other considerations of public interest being relevant. Indeed, the position of the ordinary individual under the law would be such as to make non-disclosure the only safe course if he were unable to ascertain whether he was under an enforceable obligation to observe a promise to maintain confidentiality unless and until it was known whether it would ultimately be held that other considerations, such as matters of national security of which he might well be completely unaware, outweighed the obstruction of the due administration of the criminal law which enforcement or observance of the promise would involve. While one would expect the considerations of public interest upon which the plaintiffs rely to weigh heavily with the defendants on the question whether the identity of all or any of the plaintiffs should be disclosed by the Commonwealth to the Commissioner of Police, they are simply not in point in so far as the five actions in this Court are concerned.
10. Two further matters should be mentioned. The first is that the facts that the "project" was "approved" by the responsible Minister, that a "direction" was given by the Commonwealth and that an "instruction" was given by those in authority, while providing neither immunity nor indemnity in respect of any breach of the criminal law, could well be relevant on the question of what, if any, penalty should be imposed in the event that any of the plaintiffs is charged and convicted. A court before whom any of the five plaintiffs was charged might well consider, if the question of penalty were reached, that the major share of the blame for the whole sorry mess lies squarely on the shoulders of those who gave directions and instructions to decent men in the name of their country. The second is that some of the material before the Court has been kept secret with the consequence that full disclosure of the factual merits of the case which the plaintiffs make against the Commonwealth is precluded and meaningful discussion of the considerations which would have been relevant to answering one question which it has proved unnecessary to answer (Question 4 in M104 of 1984) would not have been possible. The parties have, however, agreed that there are exceptional and compelling considerations going to national security which have required that the confidentiality of the relevant material be preserved. Indeed, the fact that all parties are agreed on the need for secrecy has itself been an important factor in my concurrence in the departure from the ordinary principle that justice must be openly administered in open court (cf. Australian Broadcasting Commission v. Parish [1980] FCA 33; (1980) 29 ALR 228, at p 254).
11. The questions in the stated cases should be answered:
Actions Nos. M101,M102 and M103 of 1983.
l. Yes.
2. (a) Yes.
(b) No.
3. There is no such enforceable duty.
4. No.
5. No.
Action No. M104 of 1983.
l. Yes.
2. (a) Yes.
(b) No.
3. There is no such enforceable duty.
4. Unnecessary to answer in light of the answer to
Question 3.
5. Unnecessary to answer.
6. No.
7. No.
Action No. M105 of 1983.
1. Not applicable.
2. Not applicable.
3. There is no such enforceable duty.
4. No.
5. No.I would make no order as to the costs of any party.
ORDER
Actions No. M101 of 1983 and No. M103 of 1983 1. Would the disclosure by the defendants to the ChiefCommissioner of Police of the State of Victoria of theAnswer: Yes.
name of each of the plaintiffs identified as A, B, C, D,
E, and G as a participant in the exercise amount to a
breach of the term of the agreement referred to in
paragraph 13 above ("the term")?
2. Is the term:
(a) unenforceable in so far as it purports to preventAnswer: (a) Yes.
the defendants from disclosing to the Chief
Commissioner the name of each of the said
plaintiffs;
(b) enforceable in view of the national interest in
maintaining security?
(b) No.3. Do the circumstances give rise to a duty owed by the
Commonwealth to each of A, B, C, D, E, G, and K to treatAnswer: There is no such enforceable duty.
as confidential information and in particular, except in
so far as necessary to carry out the functions of ASIS,
not to disclose to any person:
(a) the name, address occupation or any other
particular identifying or likely to identify him as
a person who has worked for ASIS;
(b) any act or thing done by him in the course of his
work for ASIS:
notwithstanding that such a duty prevents the defendants
from disclosing to the Chief Commissioner the names of
the participants in the exercise?
4. Does the answer to any of the above questions depend
upon the judicial determination of the allegations orAnswer: No.
any and which of them contained in paragraphs 37, 38, 39
and 40 hereof?
5. Are the plaintiffs identified as A, B, C, D, E, G and K
entitled to a permanent injunction in the terms of theAnswer: No.
order made herein on the 15th day of December 1983 or in
any and what like terms?
Action No. M102 of 1983 1. Would the disclosure by the defendants to the
Chief
Commissioner of Police of the State of Victoria of theAnswer: Yes.
Plaintiff's name as a participant in the exercise amount
to a breach of the term of the agreement referred to in
paragraph 27 above?
2. Is the term:
(a) unenforceable in so far as it purports to preventAnswer: (a) Yes.
the defendants from disclosing to the Chief
Commissioner the Plaintiff's name?
(b) enforceable in view of the national interest in
maintaining security?
(b) No.3. Do the circumstances give rise to a duty owed by the
Commonwealth to the plaintiff to treat as confidentialAnswer: There is no such enforceable duty.
information and in particular, except in so far as
necessary to carry out the functions of ASIS, not to
disclose to any person:
(a) the name, address, occupation or any other
particular identifying or likely to identify him as
a person who has worked for ASIS;
(b) any act or thing done by him in his work for ASIS:
notwithstanding that such a duty prevents the defendants
from disclosing to the Chief Commissioner the names of
the participants in the exercise?
4. Does the answer to any of the above questions depend
upon the judicial determination of the allegations orAnswer: No.
any and which of them contained in paragraphs 32 and 34
hereof?
5. Is the Plaintiff entitled to a permanent injunction in
the terms of the order made herein on the 15th day ofAnswer: No.
December 1983 or in any and what like terms?
Action No. M104 of 1983 1. Would the disclosure by the defendants to the
Chief
Commissioner of Police for the State of Victoria of theAnswer: Yes.
name of each of the Plaintiffs identified as H, I and J
as a participant in the exercise amount to a breach of
the term of the agreement referred to in paragraph 17
above ("the term")?
2. Is the term:
(a) unenforceable in so far as it purports to preventAnswer: (a) Yes.
the defendants from disclosing to the Chief
Commissioner the name of each of the said
plaintiffs;
(b) enforceable in view of the national interest in
maintaining security?
(b) No.3. Do the circumstances give rise to the duty owed by the
Commonwealth to each of the plaintiffs to treat asAnswer: There is no such enforceable duty.
confidential information and not to disclose to any
other person or body outside ASIS:
(a) the name, address, occupation or any other
particular identifying or likely to identify him as
a person who has worked for ASIS;
(b) any act or thing done by him in his work for ASIS:
notwithstanding that such a duty prevents the defendants
from disclosing to the Chief Commissioner the names of
the participants in the exercise?
4. Do the facts stated in paragraphs 11, 13 and 15 lead to
the implication of either of the terms alleged by theAnswer: Unnecessary to answer in the light of the
said plaintiffs in paragraph 19?
answer to question 3.5. If yes to question 4 above:
(a) is each of the terms unenforceable in so far as itAnswer: Unnecessary to answer.
purports to prevent the defendants from disclosing
to the Chief Commissioner the name of each of the
said plaintiffs;
(b) is each of such terms enforceable in view of
national interest in maintaining security?
6. Do the answers to any of the above questions depend upon
the judicial determination of the allegations or any andAnswer: No.
which of them contained in paragraphs 12, 14 and 16
hereof?
7. Are the Plaintiffs identified as H, I and J entitled to
a permanent injunction in the terms of the order madeAnswer: No.
herein on the 15th day of December 1983 or in any and
what like terms?
Action No. M105 of 1983 1. Would the disclosure by the defendants to the
Chief
Commissioner of Police of the State of Victoria of theAnswer: Not applicable.
name of each of the plaintiffs identified as A, B, C, D,
E and G as a participant in the exercise amount to a
breach of the term of the agreement referred to in
paragraph 13 above ("the term")?
2. Is the term:
(a) unenforceable insofar as it purports to prevent theAnswer: Not applicable.
defendants from disclosing to the Chief
Commissioner the name of each of the said
plaintiffs;
(b) enforceable in view of the national interest in
maintaining security?
3. Do the circumstances give rise to a duty owed by the
Commonwealth to each of A, B, C, D, E, G and K to treatAnswer: There is no such enforceable duty.
as confidential information and in particular, except in
so far as necessary to carry out the functions of ASIS,
not to disclose to any person:
(a) the name, address, occupation or any other
particular identifying or likely to identify him as
a person who has worked for ASIS;
(b) any act or thing done by him in the course of his
work for ASIS:
notwithstanding that such a duty prevents the defendants
from disclosing to the Chief Commissioner the names of
the participants in the exercise?
4. Does the answer to any of the above questions depend
upon the judicial determination of the allegations orAnswer: No.
any and which of them contained in paragraphs 37, 38, 39
and 40 hereof?
5. Are the plaintiffs identified as A, B, C, D, E, G and K
entitled to a permanent injunction in the terms of theAnswer: No.
order made herein on the 15th day of December 1983 or in
any and what like terms?
No order as to the costs of the cases stated.
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