Sankey v Whitlam

142 CLR 1
21 ALR 505

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(Judgment by: GIBBS ACJ)

Between: SANKEY
And: WHITLAM

Court:

Judges:
Gibbs ACJ.Stephen J.
Mason J.
Jacobs J.
Aickin J.

Subject References:
Criminal Law
Evidence
Declaration

Judgment date: 9 November 1978

Sydney

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Judgment by:
GIBBS ACJ

On 20th November 1975 informations were laid under the Justices Act, 1902 (NSW), as amended ("the Justices Act") by a private citizen, Mr. Sankey, against Mr. Whitlam, who had recently ceased to be Prime Minister of Australia, and three other gentlemen who had been members of his Ministry: Mr. Connor, who had been Minister for Minerals and Energy, Dr. Cairns, who had been Treasurer, and Mr. Justice Murphy (as he now is) who had been Attorney-General. For convenience I shall refer to these four former Ministers as "the defendants". One of them, Mr. Connor, has since died. Two informations were laid against each defendant, and a summons was issued on each information. The first information alleged an offence against s. 86 of the Crimes Act 1914 (Cth), (as amended) ("the Crimes Act"), and the second a conspiracy at common law. The informations were respectively in the following terms, omitting immaterial words:

1. "That on or about the thirteenth day of December, in the year of Our Lord one thousand nine hundred and seventy four in Australia" (the defendants) "conspired with each other to effect a purpose that was unlawful under a law of the Commonwealth, that is to say to effect the borrowing by the Commonwealth of Australia from overseas sources a sum in the currency of the United States of America not exceeding the equivalent of $4,000 million in contravention of the Financial Agreement, 1927 as amended, the Constitution Alteration (State Debts) Act, 1928 and the Financial Agreement Act, 1944 as amended."

2. "That on or about the thirteenth day of December, in the year of Our Lord one thousand nine hundred and seventy four within New South Wales and the Australian Capital Territory" (the defendants) "conspired with each other to deceive His Excellency the Governor-General of Australia, the Honourable John Robert Kerr, K.C.M.G., K. St. J., in that they being members of the Federal Executive Council and at a meeting of the same agreed with each other to recommend for the approval of the said Governor-General inter alia that the said Honourable Reginald Francis Xavier Connor be authorised to borrow for temporary purposes a sum in the currency of the United States of America not exceeding the equivalent of $4,000 million, notwithstanding that at the time of the said agreement the said proposed borrowing was not for nor intended to be for temporary purposes only and was in contravention of the Financial Agreement, 1927 as amended, the Constitution Alteration (State Debts) Act, 1928 and the Financial Agreement Act, 1944 as amended."

The matters came before Mr. Leo S.M. in the Court of Petty Sessions at Queanbeyan. Mr. Leo first heard argument on questions of jurisdiction and on whether the informations charged offences known to the law. He gave his decision on these questions on 15th March 1976. He ruled, inter alia, that the Financial Agreement is a law of the Commonwealth within s. 86 of the Crimes Act, and that the first information discloses an offence against that section. He announced that he would proceed to take the evidence for the prosecution under s. 41 of the Justices Act. Two of the defendants, Messrs. Whitlam and Connor, then applied to the Supreme Court of New South Wales for orders in the nature of certiorari, prohibition and mandamus and for a declaration that the magistrate should not proceed further with the hearing of the informations but should discharge the defendants. Their applications were heard by the Court of Appeal, which dismissed them: Connor v. Sankey (1976) 2 NSWLR 570 . One question raised by these applications was whether the magistrate was correct in holding that the first information, laid under s. 86 of the Crimes Act, alleged an offence known to the law.

The majority of the Court (Moffitt P. and Reynolds J.A.) declined to answer that question. They held that it was estalished by the decision of the Full Court of New South Wales in Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 that the Supreme Court, in the exercise of its supervisory power under the prerogative writs, would not interfere with the decision of a magistrate conducting committal proceedings, and that it would not be proper to usurp the authority of a magistrate conducting such proceedings by making a declaration as to the order he should make. The third member of the Court of Appeal, Street C.J., held that Ex parte Cousens; re Blacket (2) should not be followed and that the Supreme Court had power to grant prohibition against a magistrate conducting committal proceedings if there were a want or excess of jurisdiction; he further held that if the defendants could establish that the informations alleged offences not known to the law declaratory relief should be granted. However, he rejected the defendants' arguments, and held inter alia that the first information alleged an offence known to the law.

After the decision of the Court of Appeal was pronounced, the proceedings in the Court of Petty Sessions were resumed. There had been issued, on behalf of Mr. Sankey, a number of subpoenas duces tecum; those with which we are concerned were addressed, respectively, to Mr. D. F. N. Reid, Secretary of the Executive Council, Parliament House, Canberra; The Secretary, Department of Minerals and Energy, Canberra; Mr. A. R. G. Prowse, Department of the Treasury, Canberra; Sir Frederick Wheeler, Secretary of the Treasury, Canberra; and Mr. John O. Stone, Deputy Secretary (Economic), Department of the Treasury, Parkes. A second subpoena duces tecum addressed to Sir Frederick Wheeler had been issued on behalf of Mr. Whitlam. Counsel were given leave to appear on behalf of the Commonwealth to object to the production of some, but not all, of the documents covered by these subpoenas, on the ground that they belonged to a class of documents which the public interest required should not be disclosed. Affidavits, sworn respectively by Mr. A. T. Carmody (the Secretary to the Department of the Prime Minister and Cabinet), Mr. Lynch (the Treasurer) and Mr. Nixon (the Minister of State for Transport and the Acting Minister of State for National Resources), were filed in support of the objections.

It will be necessary to refer in more detail, later in this judgment, to the nature of the documents in question and to the form of objection raised. Counsel for Mr. Whitlam, Mr. Connor and Dr. Cairns supported the objection made by the Commonwealth, even in respect of the documents mentioned in the subpoena issued on behalf of Mr. Whitlam, but went further, and argued that the documents to whose production the Commonwealth had not objected should not be produced. It will be convenient to refer to these objections as claims to privilege, although the expression "Crown privilege" is now regarded as inaccurate to describe the rules of evidence with which we are concerned. The argument as to the admissibility of the documents extended over some days. Evidence was given by Mr. Wentworth M.H.R. and Senator Wright that certain of the documents had been tabled in the House of Representatives and in the Senate. It appears that neither House gave leave to Mr. Wentworth or Senator Wright to give evidence of this kind, and for this reason Mr. Leo later held that the evidence was admitted in breach of parliamentary privilege and should be disregarded. This evidence had not been completed when Mr. Leo decided to discontinue the proceedings on the ground that he was disqualified by reason of possible bias. This decision led to further litigation in the Supreme Court, which ordered the magistrate to continue the hearing: Sankey v. Whitlam (1977) 1 NSWLR 333 . The defendants other than Mr. Justice Murphy applied for special leave to appeal to this Court from that decision but their applications were eventually dismissed by consent.

Thereafter Mr. Leo again resumed hearing argument and evidence in relation to the question whether the documents were privileged from production. On 3rd November 1977 he gave his decision. He upheld the claim to privilege for all documents for which privilege was claimed except certain documents described as the "Loan Council documents" which he decided to inspect. He also decided to inspect all documents the subject of the subpoenas for which privilege was not claimed by the Commonwealth. An objection had also been taken, in Mr. Carmody's affidavit, to oral evidence being adduced relating to certain discussions concerning the formulation or carrying out of government policy, but Mr. Leo gave no ruling on that question and it was agreed in argument before us that it would be premature to deal with it at the present stage. After inspection, Mr. Leo decided that he would not order the production of the Loan Council documents, but would order the production of all other documents for which privilege had not been claimed on behalf of the Commonwealth.

Mr. Sankey then commenced proceedings against the defendants (other than Mr. Connor who was deceased), the magistrate and the Commonwealth in the Supreme Court of New South Wales for declarations that the documents to which the magistrate had accorded privilege should be produced and could be used if otherwise admissible in the committal proceedings. He also sought an order in the nature of mandamus requiring the magistrate to order the production of the documents or alternatively an order that the Commonwealth produce the documents for inspection by the Court. Mr. Whitlam lodged a cross-claim by which he sought declarations that the Financial Agreement 1927, as amended, was not a law of the Commonwealth within the meaning of s. 86 (1) (c) of the Crimes Act and that the effecting of a borrowing by the Commonwealth is not, by reason of such borrowing being in contravention of the Financial Agreement 1927, as amended, the effecting of a purpose that is unlawful under a law of the Commonwealth within the meaning of s. 86 (1) (c) of the Crimes Act. Mr. Whitlam further sought declarations that the documents for which the Commonwealth had not claimed privilege nevertheless should not be disclosed or admitted in evidence. Upon the application of the Attorney-General of the Commonwealth this cause pending in the Supreme Court has been removed into this Court. By consent, an order has been made that Mr. Justice Murphy cease to be a party to the cause so removed.

Declaratory Relief

At the outset it is necessary to consider an argument advanced by counsel for Dr. Cairns that the Court has no power to grant declaratory relief on the application of an informant in committal proceedings, or alternatively that if it has such power it would not be a proper exercise of its discretion to use it. Counsel drew a distinction between the position of an informant and that of a defendant in such proceedings. He submitted that where an accused person is wrongly denied the protection of the law, and his liberty is endangered, the Court will make a declaration; accordingly, he said, a declaration could be made on the cross-claim. However he submitted that no similar reason exists for making a declaration on the application of an informant .

It is well established that the power of the court to make a declaration, under a provision such as s. 75 of the Supreme Court Act, 1970 (NSW), as amended, or O. 26, r. 19 of the Rules of this Court, is a very wide one: Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421 , at pp 435-436 . It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v. Attorney-General [1911] 1 KB 410 , which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioners of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence - see especially per Farwell L.J. (1911) 1 KB, at p 422 . Since that time there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings. A reference to some of these cases is given in Young: Declaratory Orders (1975) par. 2005, but it is enough for me to refer to only two of them. In Munnich v. Godstone Rural District Council (1966) 1 WLR 427 , at pp 435, 437, 438; [1966] 1 All ER 930 , at pp 933, 935, 939 it was held that the fact that the question of law which was in issue in that case had already arisen in criminal proceedings and had been decided adversely to the plaintiff was no bar to the making of the declaration which the plaintiff sought. In this Court, in I.X.L. Timbers Pty. Ltd. v. Attorney-General (Tas.) (1963) 109 CLR 574 , Windeyer J. made a declaration on a question of constitutional law that arose in a pending prosecution, although he expressed the view that it would have been preferable if the matter had proceeded before the magistrate and been brought to this Court on appeal if necessary (1963) 109 CLR, at pp 575-576 .

Most of the cases in which declarations have been made in matters which could have been, or were, the subject of criminal proceedings were cases where the criminal offence consisted of a breach of a regulatory provision, such as a failure to comply with an administrative requirement, a planning provision or a by-law. It has accordingly been suggested that a distinction should be drawn between offences involving moral turpitude - mala in se - and breaches of statutory and administrative regulations and prohibitions - mala quia prohibita - and that it is only in the latter case that a declaration will be made: see Zamir: The Declaratory Judgment (1962), pp. 215-224. There is however no authority that would deny to the courts the power to make a declaration in matters which could be or have been the subject of proceedings for crimes involving moral turpitude, and it would be most unsatisfactory to make the power of the court depend upon so arbitrary and uncertain a test, although the nature of the criminal conduct alleged to have been committed or contemplated will no doubt be one of the circumstances to be considered in deciding in what manner the discretion of the court should be exercised. Some of the cases to which I shall later refer provide illustrations of circumstances in which there would be power to make declarations which would have the effect of interfering with criminal proceedings in respect of offences which involve serious criminality in the ordinary sense .

It seems that the question whether a declaratory judgment may be made in relation to pending committal proceedings has arisen only in New South Wales. The discussion of the question in the courts of that State often begins with the decision in Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 . In that case the defendant, who was charged with treason allegedly committed in Japan and was brought before an examining magistrate, sought prohibition to restrain the magistrate from further proceeding on the ground that the courts of New South Wales had no jurisdiction to adjudicate upon the charge. Prohibition was refused, and it appears that the ground of the decision - or at least one of the grounds - was that the Supreme Court has no power to interfere by a prerogative writ with a magistrate conducting committal proceedings, because such proceedings are executive in their nature. However I am, with respect, unable to agree that it is involved in this decision that the Supreme Court has no power to make a declaration which will affect the conduct of committal proceedings. The two sorts of relief are governed by different principles, and if the decision of a magistrate is immune from review by means of the prerogative writs it does not follow that a declaration cannot be made in relation to the subject matter of the proceedings - so much is recognized in the judgment of Walsh J. in Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR, at p 428 . On the other hand, if prohibition does lie, a declaration can nevertheless be made, for the existence of an alternative remedy is no bar to the making of a declaration, but merely a matter to be weighed by the court in the exercise of its discretion. For these reasons I do not consider it necessary in the present case to consider whether Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 was correctly decided.

As Jordan C.J. pointed out in Ex parte Cousens; Re Blacket (1946) 47 SR (NSW), at p 147:

"In substance, a committing magistrate determines nothing, except that in his opinion a prima facie case has been made out for committing the accused for trial."

The Attorney-General, in deciding whether or not to present an indictment, will not be bound by the decision of the magistrate as to whether a prima facie case has been made out. These circumstances, however, seem to me to be irrelevant to the question whether the court has power to make a declaration which will affect the conduct of committal proceedings. The word "right", in the expression "declarations of right" in s. 75 of the Supreme Court Act, 1970 (NSW) and O. 26, r. 19 is used in a sense that is wide and loose. It includes what might more precisely be described as privileges, powers and immunities. And the power to make a declaration extends to enable a plaintiff to have it declared that he is under no duty or liability to the defendant - that was established by Guaranty Trust Co. of New York v. Hannay & Co. [1915] 2 KB 536 as well as by Dyson v. Attorney-General [1911] 1 KB 410 . There is no reason in principle why a declaration should not be made that committal proceedings have been invalidly instituted or wrongly continued against the person seeking the declaration. For example, if the courts of New South Wales had no jurisdiction to entertain the charge brought against the defendant in Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 it would, in my opinion have been within the power of the Supreme Court to make a declaration accordingly. Another example is provided by Reg. v. Schwarten; Ex parte Wildschut (1965) Qd R 276 . In that case the Full Court of Queensland issued prohibition to a magistrate to restrain him from wrongly proceeding with the hearing of a committal proceeding in respect of a charge of manslaughter which had been commenced by another magistrate. Whether or not prohibition lay in such a case, the court could in my opinion have made an appropriate declaration.

Not all judges in New South Wales have shared the view of the majority of the Court of Appeal in Connor v. Sankey (1976) 2 NSWLR 570 or have regarded the decision in Ex parte Cousens; Re Blacket as authority preventing the making of declarations in relation to the conduct of committal proceedings. In Bacon v. Rose (1972) 2 NSWLR 793 . Street C.J. held that if it had been established that committal proceedings had been begun without the prior approval of the Minister, which was made by statute a condition precedent to the institution of proceedings for the offence in question, he could and would have made a declaration to that effect. In the event, however, he found that the plaintiff had not made out her entitlement to the declaration sought. In Willesee v. Willesee (1974) 2 NSWLR 275 Holland J. made a declaration that the plaintiff (who was charged with assault) was entitled, under the First Offenders (Women) Act, 1918 (NSW) to have the hearing of committal proceedings conducted in private and otherwise in accordance with the provisions of that Act. On the other hand in Acs v. Anderson (1975) 1 NSWLR 212 the Court of Appeal upheld a decision of Holland J. who had refused, in his discretion, to make a declaration that the liquidator of a company had power to waive professional privilege claimed by a solicitor called to give evidence at committal proceedings of instructions given to him by persons acting on behalf of the company. The majority of the Court of Appeal left open the question whether a declaration could have been obtained in such a case. Finally in Bourke v. Hamilton (1977) 1 NSWLR 470 Needham J. held that if it were demonstrated that the evidence taken on behalf of the prosecution at committal proceedings was not such as would have enabled a magistrate correctly applying the law to have formed the opinion that a prima facie case had been made out, he had power to make a declaration and would be prepared to exercise the power. However after reviewing the evidence he was not satisfied that it had been established that no charge could properly result in the committal of the plaintiffs for trial and he declined to make a declaration.

Of these cases Bacon v. Rose and Willesee v. Willesee present little difficulty. In the former case it was claimed that the plaintiff was exposed to proceedings that had been wrongly brought, and in the latter that the proceedings were being conducted in a manner contrary to that provided by statute. There was in these cases clear power to grant a declaration. In both cases the question involved was principally one of law and the decision of that question was determinative, in the first case, of whether the proceedings should continue and, in the second case, of whether they should be conducted in public or in private. In these circumstances there were good reasons for exercising the discretionary power of the court by granting a declaration. Similar considerations apply to the cross-claim brought by Mr. Whitlam for the declarations as to the Financial Agreement 1927. If the provisions of that Agreement are not a "law of the Commonwealth" within s. 86 (1) (c) of the Crimes Act, the charges against the defendants under that section cannot be sustained. In my opinion the court has power to declare that a charge brought against an accused person is one not known to the law, since the accused has a "right" not to be exposed to proceedings that have no legal substance. Of course in exercising its discretion the court will have regard to the power of the examining magistrate to commit the accused for trial for an offence different from that charged in the information (see Justices Act, ss. 30,41) but in the present case the circumstances are such that it is quite improbable that evidence given on committal proceedings on the charge under s. 86 (1) (c) could make out a prima facie case of any other offence (except possibly that of conspiracy which is already charged).

The question whether the power to grant declaratory relief extends to enable the court to declare that particular evidence is admissible or inadmissible, or that the evidence led by an informant is sufficient to make out a prima facie case, is a much more difficult one, because it is not so clear, in such cases, that the plaintiff has any "right", even within the widest sense of that word, in respect of which he can seek relief. Grave doubts on this point were expressed by Hutley J.A. (with whom Moffitt P. agreed) in Acs v. Anderson (1975) 1 NSWLR, at pp 215-217 , but I need not consider whether there would be power to grant declaratory relief in all such cases. In my opinion it would be within power to grant a declaration of the kind sought by Mr. Sankey in the present case. It seems to me that when an informant has properly required the production on subpoena of an admissible document, and the Commonwealth has objected to the production of the document on the ground that the public interest requires that it should not be disclosed, it is possible to regard the Commonwealth as asserting, against the informant as well as against the court, a "right" to withhold production of the document, and that in those circumstances the court has power to grant declaratory relief if the objection is held to be untenable. The same reasoning would not justify the making of a declaration that documents for which privilege was not claimed should not be admitted, but as will appear I need not decide whether it would be proper to make a declaration in such a case.

In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalties; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. I am not intending to criticize those concerned with the conduct of Bourke v. Hamilton (1977) 1 NSWLR 470 , or to show any disrespect for the careful judgments delivered in that matter - indeed I have derived much assistance from them - when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration - in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v. Dunn (1973) 2 NSWLR 468, at p 470 , that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere "administrative cautions" (cf. Ibeneweka v. Egbuna (1964) 1 WLR 219 , at p 224 ) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.

Notwithstanding the importance of refraining from interfering with the ordinary course of committal proceedings I have formed the opinion that we should proceed to dispose of the questions raised by Mr. Sankey's claim. The circumstances of the case are of course most exceptional. In addition the very fact that the questions have been argued in this Court after the proceedings have already been long delayed is a cogent reason for putting them finally to rest. In this respect the attitude of an ultimate appellate court before which questions of this kind have been argued may necessarily be somewhat different from that which would be taken by a court lower in the judicial hierarchy. There is no reason to doubt that we should dispose of the cross-claim for declarations as to the questions arising under s. 86 of the Crimes Act. I have not overlooked that a declaration which raised the same issues of substance, although it was different in form, was sought in Connor v. Sankey (1976) 2 NSWLR and that no application was made for special leave to appeal against the decision of the Court of Appeal. However that circumstance is outweighed by the desirability of bringing this matter to a conclusion.

Section 86 (1) (c) of the Crimes Act and the Financial Agreement

Section 86 (1) of the Crimes Act provides (inter alia) as follows:

"A person who conspires with another person -

(a)

to commit an offence against a law of the Commonwealth;

(b)

to prevent or defeat the execution or enforcement of a law of the Commonwealth ;

(c)

to effect a purpose that is unlawful under a law of the Commonwealth;

(d)

to effect a lawful purpose by means that are unlawful under a law of the Commonwealth; or

(e)

to defraud the Commonwealth or a public authority under the Commonwealth, shall be guilty of an indictable offence."

By s. 86 (3) it is provided that in s. 86 "'law of the Commonwealth' includes a law of a Territory". The first charge in each information is framed on the assumption that to effect a borrowing "in contravention of the Financial Agreement 1927 (as amended), The Constitution Alteration (State Debts) Act 1928 (sic) and the Financial Agreement Act 1944 (as amended)" is to effect a purpose that is unlawful under a law of the Commonwealth.

The Financial Agreement was made between the Commonwealth and the States in December 1927 and was "approved" by the Financial Agreement Act 1928. Subsequently the Constitution was altered, as appears in the Constitution Alteration (State Debts) 1928 (No. 1 of 1929), by the insertion of s. 105A. The material provisions of that section are as follows:

"1. The Commonwealth may make agreements with the States with respect to the public debts of the States, including -

...

(f)

the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States.

2. The Parliament may make laws for validating any such agreement made before the commencement of this section.

3. The Parliament may make laws for the carrying out by the parties thereto of any such agreement.

4. Any such agreement may be varied or rescinded by the parties thereto.

5. Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.

..."

Thereafter the Financial Agreement was "validated" by the Financial Agreement Validation Act 1929. Since that time the Financial Agreement has been amended on a number of occasions and the agreements effecting the amendments have been "approved" by various statutes, including the Financial Agreement Act 1944. A copy of the agreement approved or validated was in each case set out in the schedule to the Act effecting the approval or validation.

Under cl. 3 (8) of Pt I of the Financial Agreement, as amended, the Commonwealth and each State must submit to the Australian Loan Council constituted by the Agreement a programme setting forth the amount it desires to raise by loans during each financial year for purposes other than (inter alia) "temporary purposes". If the Loan Council decides that the total amount of the loan programme for the year cannot be borrowed at reasonable rates and conditions it then decides the amount to be borrowed during the year and the Agreement provides for the allocation of such amount between the Commonwealth and the States: cl. 3 (9), (10). Any such decision of the Loan Council is final and binding: cl. 3 (15). By cl. 4 (4) of Pt I of the Agreement it is provided as follows:

"While Part III of this Agreement is in force, moneys shall not be borrowed by the Commonwealth or any State otherwise than in accordance with this Agreement."

Part III of the Agreement is still in force. Clause 6 of Pt I deals with borrowings by the Commonwealth within the Commonwealth, and cl. 6 (3) provides that where any such borrowing is for temporary purposes, the provisions of the Agreement, other than cl. 6, shall not apply.

The purpose alleged by the informations to have been "unlawful under a law of the Commonwealth" was the borrowing by the Commonwealth of the sum of $4,000 million. If the Commonwealth had borrowed that sum otherwise than in accordance with the Agreement it would have committed a grave breach of the Agreement itself. In one sense such a borrowing would have been unlawful, for a breach of contract is unlawful in the sense that it involves the violation of a legal right and creates a legal wrong: see Rookes v. Barnard [1964] AC 1129 , at pp 1186, 1201, 1234 . However the phrase "a purpose that is unlawful under a law of the Commonwealth" is clearly intended to mean a purpose that is rendered unlawful by the law itself. A written law which authorizes or approves of the making of a contract does not thereby render a breach of the contract unlawful; that result is brought about by the rules of the common law. Where a law of the Commonwealth does no more than approve of or validate an agreement, the purpose of breaking that agreement could not be said to be "unlawful under a law of the Commonwealth". The only provision that might have rendered unlawful the proposed borrowing to which the informations refer was cl. 4 (4) of Pt I of the Financial Agreement. Two questions therefore arise: (1), was the Financial Agreement itself "a law of the Commonwealth"; and (2), if not, did the Financial Agreement derive its efficacy from some law of the Commonwealth in such a way that the law, rather than the Agreement, could properly be regarded as the source of the prohibition contained in cl. 4 (4) and as rendering a breach of the Agreement unlawful.

The Financial Agreement purports to be an agreement, not a law. It was not made by any legislature, although it received legislative approval and ratification. It may be varied or rescinded by the parties: s. 105A (4). Section 105A itself draws a distinction between the agreements which it authorizes on the one hand and laws made to validate or carry out any such agreement on the other. It is apparent that the Financial Agreement is not a law in the ordinary sense and is not treated by s. 105A as being a law. However s. 105A (5) makes the Financial Agreement binding upon the Commonwealth and the States, notwithstanding anything in the Constitution, or in the Constitutions of the States, or in any law of the Parliament of the Commonwealth or of any State. The effect of this provision "is to make any agreement of the required description obligatory upon the Commonwealth and the States, to place its operation and efficacy beyond the control of any law of any of the seven Parliaments, and to prevent any constitutional principle or provision operating to defeat or diminish or condition the obligatory force of the Agreement": New South Wales v. The Commonwealth (No. 1) (1932) 46 CLR 155 , at p 177 . It has been said by Starke J. that the Financial Agreement "is part of the organic law of the Commonwealth" and by McTiernan J. that s. 105A (5) "imbues with the force of a fundamental law any agreement to which it applies": New South Wales v. The Commonwealth (No. 1) (1932) 46 CLR, at pp 186, 229 . In Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1 , at p 282 , Rich and Williams JJ. said that "the agreement derives overriding statutory force from s. 105A of the Constitution". None of these statements was made with the present question in mind and all fall far short of saying that the Financial Agreement is a law of the Commonwealth. It is true to say that the Financial Agreement has the force of law, even of an organic law, so far as the Commonwealth and the States are concerned. However it does not create rights in or impose duties on other persons; it is binding by s. 105A (5) only on the Commonwealth and the States. Notwithstanding s. 105A (5) I do not think it accurate to describe the Financial Agreement as a law. It is in truth sui generis, an agreement whose provisions are rendered paramount over the Constitutions of the Commonwealth and the States and over their laws. However even if it could be described as a law, it is not a law of the Commonwealth, because it is not made by or under the authority of the Parliament of the Commonwealth.

Section 105A (3) enables the Parliament to make laws "for the carrying out by the parties thereto of any such agreement", and this power authorizes the enactment of "laws to procure the fulfilment of the agreement": New South Wales v. The Commonwealth (No. 1) (1932) 46 CLR, at p 178 . In my opinion it would have been competent for the Parliament to procure the enforcement of the Financial Agreement by making it an offence to conspire to effect any purpose which the Agreement prohibits. The Parliament has not however enacted any such law. The penal provisions of s. 86 (1) should not be extended to include matters which in their ordinary and natural meaning they are not apt to embrace. I conclude that the Financial Agreement is not "a law of the Commonwealth" within the meaning of that section.

The question then is whether the prohibition contained in cl. 4 (4) of the Financial Agreement should be regarded as in effect imposed by the Financial Agreement Acts or the Financial Agreement Validation Act, which were of course laws of the Commonwealth. The original agreement itself provided (by cl. 1 of Pt I) that it should have no force or effect and that it should not be binding on any party unless and until it was approved by the Parliaments of the Commonwealth and of the States. The amending agreements contained similar provisions. The Financial Agreement Acts fulfilled this condition precedent: cf. Placer Development Ltd. v. The Commonwealth (1969) 121 CLR 353 , at p 357 . The validation of the original agreement was necessary because the agreement was made before s. 105A came into force. The Financial Agreement Acts and the Financial Agreement Validation Act enabled the provisions of the Financial Agreement to come into operation, but they did not go further and require that those provisions should be observed. There is nothing in those Acts that provides expressly or by implication that the Financial Agreement should have the same effect as if it were contained in the Acts themselves and the Acts do not themselves prohibit the parties from acting in breach of the Financial Agreement. The mere approval by statute of an agreement does not give to the rights and obligations created by the agreement the same effect as if they had been contained in the statute; the authorities to which we were referred in argument illustrate that further words are necessary to achieve that result - see Caledonian Railway Co. v. Greenock and Wemyss Bay Railway Co. (1874) LR 2 Sc & D 347, at p 349 ; Reg v. Midland Railway Co. (1887) 19 QBD 540 and Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] AC 260 , at pp 283-285, 312-313 . For these reasons it is not possible to say that the Financial Agreement Acts or the Financial Agreement Validation Act rendered it unlawful for the Commonwealth to borrow money other than in accordance with the Financial Agreement.

A similar conclusion should be reached in relation to s. 105A. That section renders the Financial Agreement binding and gives it paramountcy over the Constitutions and laws of the Commonwealth and the States. However, s. 105A does not make it unlawful to effect a borrowing otherwise than in accordance with the Financial Agreement; it is left to the Parliament, if so advised, to make laws having that effect. In any case, if it could be said that a borrowing in breach of the Financial Agreement was unlawful under the Constitution, in my opinion the Constitution is not a law of the Commonwealth within s. 86 of the Crimes Act. The Constitution is not a law made by or under the authority of the Parliament of the Commonwealth. In its original form it was an enactment of the Parliament of the United Kingdom. Assuming that a law passed in accordance with s. 128 for the alteration of the Constitution can be described as a law of the Commonwealth, the alteration, when it takes effect, becomes part of the Constitution - part of the fundamental law from which the Parliament of the Commonwealth derives its legislative power - and can no longer be regarded merely as an exercise of the legislative power of the Commonwealth.

The same reasoning disposes of the arguments based on the Constitution Alteration (State Debts) 1928. That Act provided only for the alteration of the Constitution by the insertion of s. 105A. If it was a law of the Commonwealth it did not require the prohibition contained in cl. 4 (4) of the Financial Agreement to be observed, and it did not render unlawful a borrowing made otherwise than in accordance with the Financial Agreement.

For these reasons the purpose specified in the first charge in each information was not a purpose that was unlawful under a law of the Commonwealth within s. 86 (1) (c). The first charge discloses no offence in law. It should be declared accordingly .

Section 26 of the Justices Act

Before I turn to consider the claims that certain documents should not be produced or admitted in evidence I should notice a preliminary submission made by counsel for Dr. Cairns. This was that s. 26 of the Justices Act, under which the subpoenas for the production of the documents were issued, does not, indeed could not, bind the Commonwealth. The answer to this submission is of course that the subpoenas were not issued to the Commonwealth. They were issued to individual persons who do not cease to be subject to the law because they happen to hold official positions under the Commonwealth. However counsel for Dr. Cairns went on to submit that the persons to whom the subpoenas were addressed held the documents only as servants of the Commonwealth and could not be compelled to produce them without the authority of the Commonwealth. His argument was that the proper course, if a servant lacks authority to produce documents, is to issue a subpoena to the employer, but that this could not be done in the present case because s. 26 does not apply to the Commonwealth. It is unnecessary to consider whether this argument could have been sustained if properly taken. No objection has been taken to the production of the documents on this ground either by the persons to whom the documents were addressed or by the Commonwealth; as will shortly be seen, the objections which they have raised were that the documents belonged to a class which public interest required should not be disclosed. This preliminary argument must fail.

The documents in question

I must now describe the documents which it is claimed by one party or another are privileged from production. First there are the documents in respect of which privilege was claimed by the Commonwealth and allowed by the magistrate. These were as follows:

1. An explanatory memorandum and schedule relating to a meeting of the Executive Council held on 7th January 1975. It should be explained that when a matter is brough before a meeting of the Executive Council a minute paper is prepared; it sets out the advice tendered to His Excellency the Governor-General in Council and is signed by the Minister concerned. Each minute is accompanied by an explanatory memorandum which usually sets out the reasons for the advice. All minutes to be submitted to the Executive Council are listed on a schedule, which is signed by those present at the meeting. If the Governor-General is not present at the meeting the minute and the schedule are later submitted to him for signature. The Commonwealth did not claim privilege for the minute paper to which the explanatory memorandum and schedule now in question related.

2.(a) Three memoranda from a senior official of the Treasury to a senior official of the Department of Minerals and Energy. To one of these memoranda are attached copies of two letters from the then Treasurer to the then Minister for Minerals and Energy.

(b) A note in the files of the Treasury recording a meeting with the Prime Minister on 13th December 1974.

3. A minute paper from Mr. John O. Stone to the Treasurer dated 10th December 1974, being a communication (or a copy thereof) addressed by a senor official of the Treasury to his Minister. This document is said to be distinguishable from those in category 2, because what purported to be a copy of it has been published in The Bulletin and in a book by Alan Reid called The Whitlam Venture.

4. "The Loan Council documents", viz. loan programmes submitted by or on behalf of the Commonwealth to certain meetings of the Loan Council, loan programmes approved at such meetings and minutes of such meetings.

Privilege was claimed for the documents in category 1 by the affidavit of Mr. Carmody, which stated that all members of the Executive Council are required to take an oath or affirmation of secrecy. The affidavit contained the following:

"The documents referred to . . . relate to advice given and recommendations made to the Federal Executive Council and the deliberations and decisions of that Council and to the inner workings of the Executive Government of the Commonwealth of Australia. In my opinion such documents belong to a class of documents which public interest requires should not be disclosed. Further, disclosure of such documents would inhibit the proper functioning of the Executive Government and non-disclosure of such documents is necessary for the proper functioning of the public service."

Mr. Carmody personally considered the documents for which he claimed privilege, but the Ministers by whose affidavits privilege was claimed for the documents in the other categories did not. The claim in relation to the documents in categories 2 and 3 was made in words of which the following are typical:

"I have formed the opinion that the document referred to should be withheld from production and disclosure on the ground that it belongs to a class of documents which public interest requires should not be disclosed. Further, in my opinion, the non-disclosure of documents of that class is necessary for the proper functioning of the Executive Government. Further, non-disclosure of such documents is necessary for the proper functioning of the Public Service."

In the case of the Loan Council documents it was claimed that they belonged to a class of documents which public interest requires should not be dislosed and that their non-disclosure is necessary for the proper functioning of the Australian Loan Council and that it would be prejudicial to the proper functioning of that Council to make any such disclosure.

The documents for which privilege was not claimed by the Commonwealth, and which the magistrate has ordered to be produced, but in respect of which the cross-claim is made, are the following:

5.(a) Minute paper for a meeting of the Executive Council of 13th December 1974 with explanatory memorandum and schedule.

(b) Minute papers for meetings of the Executive Council held on 7th January 1975, 28th January 1975 and 20th May 1975.

6.(a) A number of documents ("documents (a) to (x)") being letters, telexes and notes, mainly between the Minister for Minerals and Energy or his senior officals and various companies or persons not in the service of the Government.

(b) Documents containing list and cost of energy items, compiled by or on behalf of the Minister for Minerals and Energy or his Department and presented to a meeting of the Executive Council on 13th December 1974. (at p34)

The documents in categories 5 and 6 appear to be indistinguishable in their general nature from those in categories 1 and 2 respectively. It appears that the Commonwealth did not claim privilege for them because they had been tabled in Parliament. However the magistrate refused to act on the evidence that the documents had been so tabled. On behalf of Mr. Whitlam it was submitted that he was right in doing so. To receive and act upon the evidence would, it was said, infringe the privileges of Parliament. To that submission I now turn.

Privileges of Parliament

It is not in contest that the privilege declared by Art. 9 of the Bill of Rights 1688 is one of the privileges of the Senate and of the House of Representatives under s. 49 of the Constitution. By Art. 9 it was declared:

"That the freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."

In the present case the charges brought against the defendants are not based on anything said or done in Parliament, and it is not sought to support those charges by evidence of anything which was said or done in Parliament. The purpose of the evidence given by Mr. Wentworth and Senator Wright is to show that certain documents were tabled and were thereby made public and were for that reason not privileged from production assuming that they would otherwise have been privileged. However one important reason for the privilege stated in Art. 9 is that a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences. From this it was argued that if evidence could be given that documents had been tabled in Parliament, with the effect that the documents were thereby rendered admissible, in some cases against the Minster who had tabled them, Ministers might be inhibited in the performance of their duties and might be led, by fear of the possible consequences, to refrain from tabling documents that ought to be tabled. This argument carries the doctrine of parliamentary privilege beyond its proper limits. To prove that a document had been tabled would not be to use against the Minister concerned evidence that he had tabled it. What might be used against the Minister in the case suggested would be a document which had come into existence outside Parliament, and which was not part of the proceedings of Parliament or entitled to protection as such, but which was claimed to be privileged from production for quite a different reason, namely that it should not be disclosed in the public interest. One matter relevant to the consideration of such a claim is whether the document has been published. A document which has been tabled in either House of the Parliament must be "considered public", and even if not ordered to be printed may be inspected at any time by any member of the House in which it was tabled and by other persons with the permission of the President of the Senate or the Speaker as the case may be: Standing Order 362 of the Standing Orders of the Senate and Standing Order 320 of the Standing Orders of the House of Representatives. It would be an absurd result if it were impermissible to prove that a document which by the Standing Orders of both Houses of the Parliament should be "considered public" could not be proved to be so, and if the question whether a document should be allowed in evidence had to be decided on the assumption that the document had never been made public, when that assumption was false and notoriously so. If it were proved that a document had been tabled, and had become public, so that it would not be against the public interest to disclose it, it would of course be irrelevant to the question of admissibility whether the document had been tabled by the person against whom it was intended to be used, or by a stranger to the suit. To show that it had become public, it would not be necessary to prove by whom it had been tabled, but simply that it had been tabled.

An alternative argument submitted was that it was a breach of parliamentary privilege for Mr. Wentworth and Senator Wright to give evidence that the documents had been tabled in Parliament when neither of those gentlemen had first obtained the leave of the House of which he was a member to give the evidence. The effect of the decisions as to the admission of evidence as to proceedings in Parliament is stated in May's Parliamentary Practice, 19th ed. (1976), pp. 88-89 as follows:

"The practice of the Commons regarding evidence sought for outside the walls of Parliament touching proceedings which have occurred therein also conforms to Article 9 of the Bill of Rights. This fact is well recognized by the courts, which have held that Members cannot be compelled to give evidence regarding proceedings in the House of Commons without the permission of the House."

The cases of Plunkett v. Cobbett (1804) 5 Esp 136 (170 ER 763) and Chubb v. Salomons (1852) 3 Car & K 75 (175 ER 469) support this view. The relevant passages from those decisions are set out in Royal Commission into Certain Crown Leaseholds, (1956) St R Qd 225, at pp 230-232 by Townley J., who regarded them as establishing the proposition that "a member of the House of Commons is not bound to give evidence of what passes within the House without the permission of the House". The law as stated in these authorities is that a member of Parliament is not compellable to give the evidence without the permission of the House, rather than that he is not competent to give it without that permission, and the reports of the two English cases cited make it clear that it was there considered necessary that the witness should take an objection before the privilege would be granted. No doubt the privilege is that of the House, rather than that of the individual member, but the circumstances of the present case do not make it necessary to consider what the position would be if it appeared that the House wished to insist upon the privilege but the member took no objection.

The material placed before us is in some respects unsatisfactory. It does not contain a transcript of the evidence of Mr. Wentworth and Senator Wright but it does appear that neither of them objected to giving evidence. It appears from the reasons given by the magistrate that the House of Representatives had, by resolution, granted leave to Mr. Sankey and his legal representatives "to inspect the documents tabled in this House during the course of its proceedings which took place between 2.55 p.m. and 10.09 p.m. on 9th July 1975", and to issue and serve a subpoena for the production of the said documents in the proceedings commenced by Mr. Sankey, and had further granted leave to an appropriate officer of the House to attend at the hearings of the said proceedings and to produce the said documents. We were told that the Senate had passed a similar resolution. The magistrate considered that this leave did not go far enough; he held that "the leave granted does not waive any parliamentary privilege". In my opinion he took too narrow a view of the effect of the leave granted. Permission to produce to the court documents described as "documents tabled in this House" clearly implied permission to place before the court evidence as to what documents had been tabled, assuming that such permission was necessary. For all these reasons in my opinion the evidence of Mr. Wentworth and Senator Wright was properly received.

Moreover it appears from both Plunkett v. Cobbett (1804) 5 Esp 136 (170 ER 763) and Chubb v. Salomons (1854) 3 Car & K 75 (175 ER 469) that a member of Parliament, even if he has not obtained the permission of the House, cannot object to giving evidence of facts that occurred in the course of a sitting of Parliament, such as that a particular member spoke (without disclosing what he said) or was present and acted in a particular capacity (for example as Speaker, or as a peer). The fact that documents were tabled (without disclosing who tabled them) seems to be evidence of the same kind, i.e., merely of an event which happened, and must be divulged by a member called as a witness, even without the consent of the House.

I therefore conclude that we are not compelled to shut our eyes to reality, but must consider the question whether the documents that were tabled in Parliament should be produced in the light of the fact that they were so tabled.

Evidence Excluded as Prejudicial to the Public Interest ("Crown Privilege")

I must now attempt to state the principles according to which we must decide whether the documents which the Commonwealth seeks to withhold should nevertheless be produced and admitted in evidence, and whether the documents which the Commonwealth is willing to produce should nevertheless be withheld. For convenience I have spoken of the claims that the documents should be withheld from production as claims to privilege, but in Reg. v. Lewes Justices; Ex parte Home Secretary (Rogers v. Home Secretary) [1973] AC 388 , at pp 400, 406-407, 412 , the expression "Crown privilege" was criticized as wrong and possibly misleading. The decision in Conway v. Rimmer [1968] AC 910 did more than merely decide that an objection validly taken to the production of a document on the ground that it would be injurious to the public interest is not conclusive; it threw a new light on the principles governing the exclusion of evidence whose admission would be contrary to the public interest. The principles which I am about to discuss apply in relation to oral as well as to documentary evidence, but since in the present case it has been agreed that it would be premature to deal with the objections taken to oral evidence, I may confine my remarks to the application of the principles to documentary evidence.

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer [1968] AC, at p 940 , as follows:

"There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v. Rimmer [1968] AC, at p 940 , "the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it". In such cases once the court has decided that "to order production of the document in evidence would put the interest of the state in jeopardy", it must decline to order production.

An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. In the present case no suggestion has been made that the contents of any particular documents are such that their disclosure would harm the national interest. The claim is to withhold the documents because of the class to which they belong. Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognizes that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet minutes and minutes of discussions between heads of departments (Conway v. Rimmer [1968] AC, at pp 952, 973, 979, 987, 993 ; Reg. v. Lewes Justices; Ex parte Home Secretary [1973] AC, at p 412 ; Australian National Airlines Commission v. The Commonwealth (1975) 132 CLR 582 , at p 591 ), papers brought into existence for the purpose of preparing a submission to cabinet (Lanyon Pty. Ltd. v. The Commonwealth (1974) 129 CLR 650 ), and indeed any documents which relate to the framing of government policy at a high level (cf. In re Grosvenor Hotel, London (No. 2) (1965) Ch 1210, at pp 1247, 1255 ). According to Lord Reid, the class would extend to "all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies": Conway v. Rimmer [1968] AC, at p 952 .

One reason that is traditionally given for the protection of documents of this class it that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. However this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind. Another reason was suggested by Lord Reid in Conway v. Rimmer [1968] AC, at p 952:

"To my mind the most important reason is that such disclosure would create or fan ill-formed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind."

Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.

Although it is sometimes categorically stated that documents of this class will not be ordered to be disclosed, at least if proper objection is taken, it has been acknowledged in some authorities that the protection which this class enjoys is not absolute. In Conway v. Rimmer [1968] AC, at p 952 , Lord Reid recognized one exception - that cabinet minutes and the like can be disclosed when they have become only of historical interest. In Lanyon Pty. Ltd. v. The Commonwealth, Menzies J. said (1974) 129 CLR, at p 653 that there might be "very special circumstances" in which such documents might be examined. In Attorney-General v. Jonathan Cape Ltd. (1976) QB 752, at p 764 , Lord Widgery C.J. accepted that no court would compel the production of cabinet papers, but nevertheless refused an application to restrain publication of the diaries of a former cabinet Minister, which revealed, amongst other things, details of cabinet discussions and of advice given to cabinet. He said (1976) QB, at p 767:

"... it seems to me that the degree of protection afforded to Cabinet papers and discussion cannot be determined by a single rule of thumb. Some secrets require a high standard of protection for a short time. Others require protection until a new political generation has taken over."

Later his Lordship said (1976) QB, at p 770:

"The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility."

He concluded that there cannot be a single rule governing the publication of such a variety of matters. These remarks, althought directed to a different issue, afford useful guidance in considering the present question.

Although the statement that cabinet documents and other papers concerned with policy decisions at a high level ("state papers", as I shall henceforth call them) are immune from disclosure was repeated in Conway v. Rimmer [1968] AC 910 , it accords ill with the principles affirmed in that case. The fundamental principle is that documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary. That principle in my opinion must also apply to state papers. It is impossible to accept that the public interest requires that all state papers should be kept secret for ever, or until they are only of historical interest. In some cases the legitimate need for secrecy will have ceased to exist after a short time has elapsed; this will be so, to take Lord Widgery's example, when new taxation proposals have passed into legislation. In other cases it may be necessary to maintain secrecy for many years. This may be so where the documents concern national security or diplomatic relations, to give two obvious examples. In other words state papers do not form a homogeneous class, all the members of which must be treated alike. The subject matter with which the papers deal will be of great importance, but all the circumstances have to be considered in deciding whether the papers in question are entitled to be withheld from production, no matter what they individually contain.

If state papers were absolutely protected from production, great injustice would be caused in cases in which the documents were necessary to support the defence of an accused person whose liberty was at stake in a criminal trial, and it seems to be accepted that in those circumstances the documents must be disclosed: Duncan v. Cammell, Laird & Co. [1942] AC 624 , at pp 633-634 ; Conway v. Rimmer [1968] AC, at pp 966-967, 987 ; Reg. v. Lewes Justices; Ex parte Home Secretary [1973] AC, at pp 407-408 . Moreover a Minister might produce a document of his own accord if it were necessary to do so to support a criminal prosecution launched on behalf of the government. The fact that state papers may come to light in some circumstances is impossible to reconcile with the view that they enjoy absolute protection from disclosure.

The fact that members of the Executive Council are required to take a binding oath of secrecy does not assist the argument that the production of state papers cannot be compelled. In Attorney-General v. Jonathan Cape Ltd. (1976) QB 752 , Lord Widgery C.J. dealt with the suggestion that the publication of the diaries in that case would have been a breach by the Minister of his oath as a privy councillor, and said that it was necessary to show that whatever obligation of secrecy or discretion attaches to former cabinet Ministers, that obligation is binding in law and not merely in morals (1976) QB, at p 767 . Similarly, state papers are not protected from disclosure because they are confidential or because the Minister has taken an oath not to reveal them. The question is whether the disclosure of the documents would be contrary to the public interest. Confidentiality is not a separate head of privilege, but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] AC 405 , at p 433 .

For these reasons I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made. Moreover no such order should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf. Conway v. Rimmer [1968] AC, at p 953 ).

Before Conway v. Rimmer [1968] AC 910 it had become established that an objection to production should be taken by the Minister who is the political head of the department concerned, or failing him by the permanent head, and that the person taking the objection should himself have read and considered the documents and formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents to which they belong: Duncan v. Cammell, Laird & Co. [1942] AC, at p 638 ; Robinson v. South Australia (No. 2) [1931] AC 704 , at p 722 ; Bruce v. Waldron (1963) VR 3, at p 10 ; In re Grosvenor Hotel, London (1964) 1 Ch 464 ; In re Grosvenor Hotel, London (No. 2) (1965) Ch, at pp 1243-1244 . Although an affidavit sworn by a Minister or departmental head is no longer conclusive, it appears to me to be still highly desirable that the person who swears the affidavit should himself have seen the documents in question. Where the claim is that it would be contrary to the public interest to publish the contents of a particular document, it is obviously essential that the person asserting the claim should himself have seen the documents in question. Even where the claim is that the document belongs to a class which should be withheld, the court is still required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to the public interest, and the weight that would be given to an affidavit making an assertion of this kind would necessarily be reduced if the person swearing it had not himself seen the document.

It is however clear that the court should prevent the disclosure of a document whose production would be contrary to the public interest even if no claim is made by a Minister or other high official that its production should be withheld. In Conway v. Rimmer [1968] AC, at p 950 , Lord Reid said that it is the duty of the court to prevent the disclosure of a document, without the intervention of any Minister, "if possible serious injury to the national interest is readily apparent". In Reg. v. Lewes Justices; Ex parte Home Secretary [1973] AC, at p 407 Lord Simon of Glaisdale said that any litigant or witness may draw attention to the nature of the evidence with a view to its being excluded. There is earlier authority to the same effect, including, in this Court, Marconi's Wireless Telegraph Co. Ltd. v. The Commonwealth (No. 2) (1913) 16 CLR 178 , at pp 192, 206 . It is necessary that the court should have the power and the duty to prevent the production or use of a document when it would be injurious to the public interest to produce or use it even if the proper procedure for objection by or on behalf of the Minister has not been followed. In some cases a document may be called for and produced in circumstances in which there has been no opportunity to consider at an appropriate level of government whether objection ought to be taken to its disclosure. The court must then intervene if it appears that the public interest requires the document to be protected from disclosure. However it is very different if a Minister has considered the question and decided that no objection should be taken. In those circumstances it would be most exceptional for the court to intervene. No less respect is due to the opinion of a Minister who decides that the public interest would not be harmed by the production of the document than to that of a Minister who considers that the document ought not to be produced.

In Robinson v. South Australia (No. 2) [1931] AC, at p 718 , it was said that "the privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published". Other cases support that view: see Marconi's Wireless Telegraph Co. Ltd. v. The Commonwealth (No. 2) (1913) 16 CLR, at pp 188, 195, 199 ; Christie v. Ford (1957) 2 FLR 202 , at p 209 . However the submission made by counsel for Mr. Whitlam was that the position is different when the exclusion of a document is sought not because of its contents but because of the class to which it belongs. In such a case the document is withheld irrespective of its contents; therefore, it was said, it is immaterial that the contents are known. That is not so; for the reasons I have suggested, it may be necessary for the proper functioning of the public service to keep secret a document of a particular class, but once the document has been published to the world there no longer exists any reason to deny to the court access to that document, if it provides evidence that is relevant and otherwise admissible. It was further submitted that if one document forming part of a series of cabinet papers has been published, but others have not, it would be unfair and unjust to produce one document and withhold the rest. That may indeed be so, and where one such document has been published it becomes necessary for the court to consider whether that circumstance strengthens the case for the disclosure of the connected documents. However even if other related documents should not be produced, it seems to me that once a document has been published it becomes impossible, and indeed absurd, to say that the public interest requires that it should not be produced or given in evidence.

What I have just said applies to cases where it is established that a true copy of the document sought to be produced has in fact been published. The publication by an unauthorized person of something claimed to be a copy of an official document, but unauthenticated and not proved to be correct, would not in itself lend any support to a claim that the document in question ought to be produced. In such a case it would remain uncertain whether the contents of the document had in truth been disclosed. In some cases the court might resolve the problem by looking at the document for the purpose of seeing whether the published copy was a true one, but it would not take that course if the alleged publication was simply a device to assist in procuring disclosure, and it might be reluctant to do so if the copy had been stolen or improperly obtained.

Finally, the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v. Rimmer [1968] AC, at pp 953, 979, 981-982, 995; cf p 971 . However, where the objection is to the disclosure of a document because it belongs to a class, and the Minister, being represented, does not suggest that there is anything in its contents that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the objection is overruled.

Disclosure of the particular documents

It clearly follows from what I have said that Mr. Whitlam's cross-claim for a declaration that the documents in what I have called categories 5 and 6 should not be disclosed cannot succeed. Those documents have already been published, in the most formal and regular way, by tabling them in Parliament. Not only has the Minister concerned refrained from taking any objection, but counsel for the Attorney-General of the Commonwealth has submitted that the documents should be produced. The magistrate was correct in ordering them to be produced.

The documents in categories 1, 2 and 3 are all "state papers" within the meaning I have given to that expression. They belong to a class of documents which may be protected from disclosure irrespective of their contents. Full respect must be paid to the objections taken to their production, even though the Ministers did not swear that they had personally seen the documents. On the other hand the documents relate to a proposal which was never put into effect, has been abandoned and is of no continuing significance from the point of view of the national interest. The matters to which they refer occurred over three years ago. Their disclosure cannot affect any present activity of government. Moreover, if the documents can be withheld, the informant will be unable to present to the court his case that the defendants committed criminal offences while carrying out their duties as Ministers. If the defendants did engage in criminal conduct, and the documents are excluded, a rule of evidence designed to serve the public interest will instead have become a shield to protect wrongdoing by Ministers in the execution of their office. I hasten to add - although it should be unnecessary for me to do so - that these remarks are not intended to suggest that any of the defendants has been guilty of any offence; the material placed before us does not enable us to form any opinion whether or not Mr. Sankey can produce evidence that could make out a prima facie case against any defendant. I have been speaking hypothetically, and with reference to the principles concerned rather than to any established facts. For these reasons I conclude that the public interest in the administration of justice outweighs any public interest in withholding documents of this class, and that the public interest does not render it necessary that the documents in categories 1, 2 and 3 should be withheld from production.

This leaves category 4, the Loan Council documents. Although the charges laid under s. 86 of the Crimes Act are bad, the charge of conspiracy at common law states as an element that the proposed borrowing was in contravention of the Financial Agreement. The arguments presented to us did not raise for our consideration whether the charge was properly drawn or whether it was necessary to allege that the proposed borrowing was in contravention of the Financial Agreement. However, assuming that allegation to be material, the proposed borrowing, even if not made for temporary purposes, would not have contravened the Financial Agreement if it had received the approval of the Loan Council. If the assumption stated is correct, in endeavouring to substantiate the charge of conspiracy at common law it would be relevant to establish that the proposed borrowing was not authorized by the Loan Council. For the purpose of establishing that fact Mr. Sankey now wishes to prove by means of the Loan Council documents the amount which the Commonwealth was authorized by the Loan Council to borrow in the year in question. In fact the amount actually borrowed in that year is now public knowledge.

The Loan Council documents are concerned with decisions of policy made at a very high level by a body which exercises great financial power within the federation. There are strong reasons why the negotiations between the Commonwealth and the States during the meetings of the Loan Council should be protected from disclosure. However, all that Mr. Sankey now seeks to have disclosed is so much of the Loan Council documents as reveals the amount which the Commonwealth was authorized to borrow during the year 1974-1975, and disclosure of that amount after this lapse of time could not be detrimental to the public interest. If it is possible to seal up or otherwise deal with the documents so that they reveal that fact and no more, it would not be necessary in the public interest to withhold the relevant documents, with all else hidden, from production. In my opinion we should now inspect the Loan Council documents to see whether it is practicable to make this very restricted disclosure, and if it is practicable we should order disclosure to be made.

Conclusions

1. Mr. Sankey's application: I would make a declaration that all the documents in question, except the Loan Council documents, should be produced. If the Loan Council documents can be sealed up or otherwise dealt with so as to reveal only the amount which the Commonwealth was authorized to borrow during the year 1974-1975, I would declare that the relevant documents, so covered, be produced.

2. Mr. Whitlam's cross-claim:

(a)

I would make an appropriate declaration to the effect that the charges laid under s. 86 (1) (c) of the Crimes Act are unknown to the law.

(b)

I would dismiss the cross-claim for declarations that the documents to whose production no objection was taken should nevertheless not be produced.