A v Hayden

A v Hayden - [1984] HCA 67 - HCA 1983 case summary — Zoe

[43]

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 the 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.

[53]

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. [7] . 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 [8] ; Hutchinson v. Scott [9] ; Patterson v. Lowe [10] . 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.

[63]

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 [26] 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 [27] , 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 [28] , 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 [29] . In Butler v. Board of Trade [30] , 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 [31] 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.

[68]

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. [32] , Isaacs J. said that the well-known dictum in The Zamora [33] , 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 [34] 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 [35] 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.

[90]

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 acknowledgment 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 co-operating with the authorities.

[98]

the phrase "public policy" appears to mean the 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 [7] . It is well settled that a contract is not enforceable if its enforcement would be opposed to public policy: Mogul Steamship Co. v. McGregor, Gow & Co. [8] . 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 [9] . New heads of public policy come into being, and old heads undergo modification. In 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 extraordinary case that may arise" [10] . He conceded that [11] "it may be that Judges are no better able to 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". Notwithstanding the criticism of these remarks by Lord Wright in Fender v. St. John-Mildmay [12] , I find them compelling. 1. (1853) 4 H.L.C. 1 [10 E.R. 359]. 2. [1902] A.C. 484. 3. [1938] A.C. 1, at pp. 10-11, 38-41. 4. (1853) 4 H.L.C., at pp. 70-71 [10 E.R., at p. 388]. 5. (1774) 1 Cowp. 37, at p. 39 [98 E.R. 954, at pp. 955-956]. 6. (1943) 43 S.R.(N.S.W.) 352, at pp. 355-356. 7. (1944) 69 C.L.R. 69. 8. (1915) 21 C.L.R. 89, at p. 97. 9. [1892] A.C. 25, at pp. 39, 51. 10. [1918] 1 K.B. 331, at p. 342. 11. (1853) 4 H.L.C., at p. 149 [10 E.R., at p. 419]. 12. (1853) 4 H.L.C., at p. 151 [10 E.R., at p. 419]. 13. [1938] 1 A.C., at pp. 40-41.

[101]

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.

[155]

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 [16] ; Smorgon v. Australia & New Zealand Banking Group Ltd. [17] 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.

[162]

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. In Gartside v. Outram [21] , Wood V.C. held that confidential communications involving fraud were not privileged from disclosure. The Vice-Chancellor said [22] : The true doctrine is, that there is no confidence 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. Each of these cases was concerned with actual crime or fraud. But in Egerton v. Brownlow (Earl) [23] , Lord Lyndhurst stated the principle in broader terms: It is admitted, that any contract or engagement having a tendency, however slight, to affect the administration of justice, is illegal and void. In Howard v. Odhams Press Ltd. [24] , 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. Slesser L.J. said [25] : It may be said that the particular facts on which 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 Initial Services Ltd. v. Putterill [26] 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 U.K. and misrepresentation in relation thereto. Lord Denning M.R. referred to the decision of the Court of Appeal in Weld-Blundell v. Stephens [27] , saying [28] : In Weld-Blundell v. Stephens [29] , Bankes L.J. rather suggested 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) [30] . 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. [31] by Lord Wilberforce and by Lord Fraser of Tullybelton [32] . 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 [33] . 1. (1767) 2 Wils. K.B. 347, at p. 350 [95 E.R. 850, at p. 852]. 2. (1856) 26 L.J. Ch. 113. 3. (1856) 26 L.J. Ch., at p. 114. 4. (1853) 4 H.L.C. 1, at p. 163 [10 E.R. 359, at p. 424]. 5. [1938] 1 K.B. 1. 6. [1938] 1 K.B., at pp. 30-31. 7. [1968] 1 Q.B. 396. 8. [1919] 1 K.B. 520 (affd. [1920] A.C. 956). 9. [1968] 1 Q.B., at p. 405. 10. [1919] 1 K.B., at p. 527. 11. (1743) 17 State Tr. 1139, at p. 1230 (Howell), referred to in L.R. 5 Q.B. 317n. 12. [1981] A.C. 1096, at p. 1169. 13. [1981] A.C., at p. 1201. 14. (1981) 55 F.L.R., at pp. 149-166; 34 A.L.R., at pp. 126-141.

[173]

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.

[188]

(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 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. It is further stated: 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. These 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: Whatever you military men think, you shall find that you are under civil jurisdiction, and you but gnaw a file, you will break your teeth ere you shall prevail against it.

[208]

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.

[209]

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 Ltd. [43] , 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" [44] . 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) [1] ; Horne v. Barber [2] . 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.

[213]

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 [4] ) 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 [5] Lord Goddard spoke 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 Vict., inserting ss. 322B and 326 in the Crimes Act 1958 Vict.. 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 [6] . 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 [7] . 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.

[222]

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. M.104 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.

[236]

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 insistence 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.

[237]

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. [16] ; Buckley v. Tutty [17] ) 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 effect. 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 insistence 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.

[239]

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 [18] . 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 [19] ), 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 insistence 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 [20] ; Grant v. Downs [21] ; Baker v. Campbell [22] . Once it appears, however, that enforcement or insistence 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 oher 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.

At a glance

Court

Decision date

Before

Source

Judgment (247 paragraphs)

Parties