Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd - [1988] HCA 25 - HCA 1988 case summary — Zoe

[46]

No doubt an Australian court in appropriate circumstances will enforce an obligation of confidentiality on the part of a member of the Australian Security Intelligence Organization (ASIO), that organization having been established for the purpose of protecting Australia's security. But even in such a case the court may be called upon to consider whether the Australian public interest in publication overrides the interest in preserving confidentiality: see The Commonwealth v. John Fairfax & Sons Ltd. [25] . Likewise, if an action to enforce an obligation of confidence owed by a member or former member of a foreign State's security service were to lie in the courts of this country, an Australian court could be called upon to determine whether the Australian public interest in disclosure of the relevant information required publication since the public interest in freedom of information and discussion is a material factor to be considered when a restraint on publication is sought. A question would then arise whether the Australian court should inquire into and determine what, if any, damage to the foreign State had been or would be caused by disclosure, including any detriment to its public interest. Such an inquiry might require an Australian court to resolve an issue which it could not appropriately entertain or competently determine, namely, what was, on balance, in the public interest of the foreign State. Moreover, if the Australian court were to decide that disclosure would be detrimental to the public interest of the foreign State but in the public interest of this country, the invidious task would remain of determining whether detriment to the foreign State should be given any, and if so what, weight against the local public interest. Even if one were to ignore questions of damage to, and the public interest of, the foreign State, the Australian court would be required to resolve the question whether the public interest of this country should prevail over the prima facie right of the foreign State to prevent disclosure. A situation in which an Australian court could be called upon to determine whether the prima facie rights of a foreign State should be overridden by a superior Australian public interest in disclosure would inevitably involve a real danger of embarrassment to Australia in its relationship with that State.

[57]

I am in general agreement with the judgment of the majority but I would identify the governing principle in a somewhat different way. The case is unusual and the particular features of the case which call for consideration should be briefly stated. The action is brought on behalf of the Government of the United Kingdom (which is, for the purposes of this litigation, a foreign government) to protect that Government's intelligence secrets and to prevent or impede a former officer of its Security Service from disclosing confidential political information without its consent, the disclosure of intelligence secrets or of any information of the stated kind being allegedly harmful to the discipline of the Service and to British security which is the concern of the Service. In describing the United Kingdom Government as "foreign", I do not depreciate the historical, institutional and ethnic ties between this country and the United Kingdom. The description of the United Kingdom Government as "foreign" merely makes the point that Australia and the United Kingdom are independent in their internal government and in their conduct of foreign affairs: cf. Lord Denning's description of New Zealand as a "foreign State" in Attorney-General (New Zealand) v. Ortiz [28] . The threshold problem in this case is whether an Australian court should enforce an obligation of confidence (a term intended to embrace the several obligations which the appellant seeks to enforce) owed to a foreign government and thereby protect that government's intelligence secrets and confidential political information. I have no doubt that, in the absence of a contrary statutory provision, an Australian court should refuse to enforce an obligation of confidence in an action brought for the purpose of protecting the intelligence secrets and confidential political information of a foreign government. I would identify this as the governing principle which applies whatever government might invoke the jurisdiction of the court and whatever be the source of the obligation of confidence which the government seeks to enforce.

[59]

At the outset, a distinction can be drawn between two bases on which the court might refuse to enforce such an obligation of confidence though it is an obligation recognized by foreign law. The first basis is that it would be contrary to the public policy of the forum State to enforce the obligation; the second is that the court denies the capacity in international law of the relevant provision of the foreign law to give rise to the obligation sought to be enforced. The distinction is between a refusal to enforce what is recognized as an existing obligation and a denial of the existence of the obligation sought to be enforced. Sometimes the first basis is expressed as a rule that foreign laws offensive to the policy of the domestic law will not be enforced, domestic public policy prevailing over the offensive foreign law. As Sir Hersch Lauterpacht observed in Netherlands v. Sweden; Convention of 1902 [29] : "in the sphere of private international law the exception of ordre public, of public policy, as a reason for the exclusion of foreign law in a particular case is generally - or, rather, universally - recognized." Where the court refuses to enforce an obligation on the first basis, the court accepts the capacity of the foreign law to give rise to a legal obligation but declines to enforce the obligation inconsistently with the public policy of the domestic law. Thus in Dynamit Actien-Gesellschaft v. Rio Tinto Co. [30] , the House of Lords refused enforcement of a contract relating to trading with the enemy while assuming that German law, as the proper law of the contract, might have held the contract to be enforceable as consistent with German public policy. English public policy prevailed over German law. The question whether the court should refuse to enforce an obligation arising under foreign law is not answered by reference to any similarity between the relevant provisions of the foreign and domestic laws but by reference to the exigencies of the public policy of the domestic law and the actual effect which application of the foreign law would have. As Professor Kahn-Freund (Selected Writings (1978), p. 234) wrote:

[63]

It is clear that independent countries may have differing interests in matters of security and foreign relations. Therefore, it could be prejudicial to the security of the Australian people and damaging to the foreign relations of this country if Australian courts were to enforce every claim which might be made on behalf of any foreign government to protect its intelligence secrets and confidential political information. Nobody suggests that the law exposes our nation to such peril. The public policy of the law throughout Australia precludes an Australian court from enforcing a claim which is damaging to Australian security and foreign relations. To give effect to this public policy, a court must be able to discriminate between the cases where it would and cases where it would not be damaging to Australian security and foreign relations to protect the intelligence secrets and confidential political information of the foreign government. But a court does not have the capacity to decide for itself whether Australian security and foreign relations are served by permitting (perhaps encouraging) disclosure of the intelligence secrets and the confidential political information of foreign governments or by prohibiting such disclosure. Nor can the court devise for itself satisfactory criteria and procedures for determining the circumstances in which disclosure should be permitted or encouraged and the circumstances in which disclosure should be prohibited. Unless, in cases of the present kind, the court were to inquire into and assess for itself whether Australian security and foreign relations are to be served by permitting or prohibiting disclosure - an inquiry and assessment which a court is quite unfitted to undertake - the court is constrained to seek and accept the opinion of the Executive Government of the Commonwealth upon the matter. Of course, the court sometimes takes account of and defers to the views of the Executive on matters which are the peculiar responsibility of that branch of government: see In re Westinghouse Uranium Contract [31] . There is no objection to that course, provided the Executive's views are limited to matters within the Executive's area of responsibility - in this case national security and foreign relations - and provided the seeking and expression of the Executive's views are not likely to embarrass the Executive in discharging its responsibilities in connexion with those matters. However, if the court were to adopt a practice of seeking and acting on the expression of an opinion by the Executive in cases of the present kind, the practice would itself be a possible source of embarrassment to the Executive in the discharge of its responsibilities. Whenever proceedings in an Australian court were in contemplation by a foreign government for the enforcement of an obligation of confidence owed by one of its security agents, an opinion would have to be obtained from the Executive on the question whether Australian security and foreign relations would be damaged by enforcing that obligation. The inquiry might be an embarrassment to the Executive. And if the Executive were to express an opinion, any divergence between the measure of support given by the Executive to the foreign government's claim and the judgment of the court might be a source of international misunderstanding.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties