Sankey v Whitlam
142 CLR 121 ALR 505
(Judgment by: STEPHEN J)
Between: SANKEY
And: WHITLAM
Judges:
Gibbs ACJ.
Stephen J.Mason J.
Jacobs J.
Aickin J.
Subject References:
Criminal Law
Evidence
Declaration
Judgment date: 9 November 1978
Sydney
Judgment by:
STEPHEN J
This case is concerned with two quite distinct matters, the scope and application of the doctrine of Crown privilege and the meaning and effect of s. 86 (1) (c) of the Crimes Act 1914 (Cth).
Crown privilege: the problem generally
The first of these matters, that of Crown privilege, involves two principles which are of quite general importance to our system of government and of justice. Such is the vigour and breadth of these principles that each, given its fullest extent of operation, will at its margins encounter and conflict with the other. This case involves just such a conflict and it is with its resolution that the Court has to concern itself.
These principles, stated in their broadest form, each reflect different aspects of the public weal. Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.
The problem restated
These general principles may be restated more narrowly and in a form which reflects the problem presented by the particular facts of this case. On the one hand, a measure of secrecy must surround at least some aspects of what has been called the counsels of the Crown; the executive government of the Commonwealth should, in those cases where real need arises, be able to preserve the confidentiality both of information which it possesses and of advice which it receives. On the other hand, in civil and criminal cases alike, the course of justice must not be unnecessarily impeded by claims to secrecy and those who, with the Governor-General, exercise the executive power of the Commonwealth, Ministers of the Crown acting in exercise of their offices, should, in common with those officers of the public service of the Commonwealth who advise them, be as amenable to the general law of the land as are ordinary citizens.
Some understanding of the way in which the interaction of these principles presently arises for consideration can be gained from a narration of the following sequence of events: the institution by a private informant of proceedings charging a former Prime Minister and members of his cabinet with conspiracy unlawfully to effect the borrowing by the Commonwealth of four billion dollars and with conspiracy to deceive the Governor-General in relation to that borrowing; the service by the informant of subpoenas duces tecum upon a number of senior public servants seeking production of a number of official papers at the ensuing committal proceedings; claims by the executive government of the Commonwealth to immunity from the production of certain of those papers at those proceedings; the upholding of those claims by the magistrate; the institution of declaratory proceedings, independent of the committal proceedings, to test the lawfulness of those claims; finally the removal of those declaratory proceedings into this Court. Add to this the fact that certain of these documents have been tabled in Parliament, the informant contending that they thereby lose any confidentiality which they may previously have possessed while for some of the defendants it is said that to permit evidence of their tabling is to infringe Parliamentary privilege. This, in summary, forms the background to the present proceedings.
Leaving aside for the moment the question of Parliamentary privilege, the area in which apparent conflict of principle calls for reconciliation lies in the extent to which what is commonly, although somewhat inaccurately, described as Crown privilege will operate to exclude from evidence matter otherwise admissible and which may be highly material to the case sought to be made out by the informant. The scope of Crown privilege has been much examined in recent times and a number of aspects formerly debatable no longer remain in doubt. However the quite special features of this case involve aspects hitherto little explored. Prominent among these special features is the fact that it is criminal proceedings against former Ministers of the Crown in relation to their conduct in office which are in question, that a number of documents of which production is sought, relating as they do to that conduct, concern the affairs of the executive government at the highest level, and that the proceedings have been instituted by a private citizen and not by the Crown.
So much for the general nature of the problems which this case presents. As already mentioned, the case also involves a quite distinct argument concerning the meaning of s. 86 (1) (c) of the Crimes Act, the provision relied upon as the foundation for one of the two charges laid against the defendants to the committal proceedings. However it is to the question of Crown privilege that I first turn.
The criminal proceedings
Rather than set out in full the two informations laid against the four defendants I summarize their terms. The first alleges that the four of them conspired to effect a purpose unlawful under a law of the Commonwealth, namely the borrowing by the Commonwealth from overseas sources of a sum not exceeding four billion United States dollars in contravention of the Financial Agreement 1927, the Constitution Alteration (State Debts) 1928 and the Financial Agreement Act 1944 (Cth). The second alleges that the four defendants conspired to deceive the then Governor-General in that, being members of the federal Executive Council, they agreed at a meeting of that Council to recommend for his approval that one of them, the late Mr. Connor, be authorized to borrow for temporary purposes not more than four billion United States dollars, notwithstanding that that borrowing was not intended for temporary purposes only and was in breach of the three above instruments .
These informations were returnable at Queanbeyan Court of Petty Sessions as long ago as 8th December 1975 yet the hearing of the committal proceedings has not much advanced. It is unnecessary to follow the convoluted course of those proceedings to date. It has already involved more than one sortie into the New South Wales Supreme Court and an application to this Court. By November 1977 matters had progressed to the stage that the magistrate, having heard lengthy argument on behalf not only of the informant and of the defendants other than Mr. Justice Murphy, whose counsel neither made any submissions in relation to Crown privilege nor took any part in the argument thereon, but also of those entities, including the Commonwealth, whose officers were in receipt of subpoenas, ruled on the several claims to Crown privilege that had been made in respect of certain of the documents the subject of those subpoenas. He did so in the course of a carefully considered judgment, in which he dealt with the modern authorities on Crown privilege. His ruling was largely adverse to the informant who, in December 1977, instituted proceedings in the New South Wales Supreme Court seeking various declarations. Although not taking the form of an appeal, the declarations sought to challenge much of the magistrate's conclusions as reflected in his ruling. One of the defendants, Mr. Whitlam, soon afterwards filed a cross-claim which challenges other aspects of the ruling, being those adverse to the interests of the defendants.
I defer comment upon the propriety of seeking declaratory relief in the circumstances and in the terms which it has been sought. Nor will I debate the appropriateness of the term "Crown privilege". I use it to describe those situations in which the law requires that relevant evidence be not tendered because to do so would be detrimental to the public interest. Its use is convenient; it has for many years served as a generic description of this area of the law and, despite the inaptness of the two words of which it is composed, should not mislead if treated as no more than a descriptive label.
The claims to privilege
The documents for which Crown privilege are claimed in the present case are not documents in any way concerned either with the defence of the Commonwealth or with the conduct of the nation's foreign affairs. They are, however, very much concerned with the highest level of the executive government, with the deliberations of Cabinet Ministers and with the advice given to those Ministers by heads of Commonwealth departments .
It was only for some of the documents the subject of subpoenas that the Commonwealth claimed privilege, claims which the magistrate upheld. Moreover the informant is no longer concerned to insist upon production of certain of these documents the area of debate as between informant and Commonwealth being narrowed accordingly. However the claim to Crown privilege is insisted upon on behalf of Mr. Whitlam in instances where the Commonwealth did not assert it and this has enlarged again the area of inquiry, as well as raising the question whether it is open to Mr. Whitlam to claim a Crown privilege which the Commonwealth has consciously foregone. The magistrate rejected each of Mr. Whitlam's claims to Crown privilege.
The documents for which the Commonwealth successfully claimed privilege and which remain in issue between it and the informant are as follows: an explanatory memorandum and schedule referable to the minutes of a meeting of the Executive Council held on 7th January 1975, memoranda of various kinds passing between Treasury and the Department of Minerals and Energy together with letters between the respective Ministers, a Treasury minute paper and certain Loan Council documents.
On behalf of Mr. Whitlam additional claims to privilege apply to minutes of the meeting of the Executive Council held on 13th December 1974 together with the explanatory memorandum and schedule for that meeting, Executive Council minutes of three subsequent meetings and documents passing between the Department of Minerals and Energy or its Minister and persons not forming part of the executive government, including a so-called "list of energy items".
Executive Council documents
The first category in which the Commonwealth claim is contested, the Executive Council explanatory memorandum and schedule for its meeting of 7th January 1975, was the subject of an affidavit sworn by Mr. Carmody, the Secretary to the Department of the Prime Minister and Cabinet, who is also Secretary to Cabinet. He there described the general character of these documents as follows:
"8. Where a matter is to be brought before a meeting of the Federal Executive Council a Minute Paper for the Federal Executive Council is prepared. Such minute sets out the advice which is tendered to the Council in the form of a recommendation for the approval of the Governor-General in Council. The minute is signed by the Minister of State submitting the matter for approval.
9. Each such minute is accompanied by an Explanatory Memorandum containing a brief explanation of the matter of which approval is sought. The Explanatory Memorandum also usually sets out the reasons for the advice tendered to the Governor-General in Council.
10. All minutes to be submitted to the Federal Executive Council are prior to the meeting listed on what is known as a Schedule. The Schedule is a formal document which is signed by those present at the meeting of the Council as a record of the proceedings and as evidencing the approval of minutes listed on it. If the Governor-General is not present at the meeting the minute and the Schedule are subsequently submitted to him for signature."
In par. 14 of Mr. Carmody's affidavit he goes on to say:
"14. The documents referred to in the last preceding paragraph of this my affidavit 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."
This is followed by his formal statement of objection to the production of these documents and to the adducing of oral evidence "relating to discussions concerning the formulation or carrying out of government policy. . .".
Some features of the claim to privilege for these particular documents should be mentioned. None is claimed for the minute papers of the four meetings of the Executive Council mentioned in the subpoenas but the schedules of each meeting, apparently no more than a list of relevant minutes although naming and bearing the signatures of those present at the meeting in question and signed by the Governor-General, are, in respect of three of those meetings, the subject of such a claim. It is solely because the informant now seeks production of one only of these schedules that it is only the production of that one which remains in issue. Paragraph 14 of Mr. Carmody's affidavit does not reveal, nor is it otherwise readily apparent, why the disclosure of such schedules would involve those detrimental consequences of which Mr. Carmody speaks, the minutes of the very meetings to which the schedules relate are not themselves the subject of any claim by the Crown to privilege. The same comment applies to the memoranda for those meetings, since they are described as containing no more than "a brief explanation of the matter of which approval is sought" that is, of the recommendation which, when adopted, appears in the disclosed minutes. Again, no objection is made to production of the explanatory memorandum or schedule for the Executive Council meeting of 13th December 1974, being documents of the same class as those for which privilege is claimed: yet the claim to privilege in par. 14 is based primarily upon the class, rather than any particular contents, of those latter documents.
The explanation of all this must lie in the fact that the Commonwealth, unlike Mr. Whitlam, has made no claim to privilege wherever documents have come to be tabled in Parliament. The minutes of the four meetings of the Executive Council were, apparently, so tabled. It is not clear to me whether the explanatory memorandum and schedule for the meeting of 13th December 1974 was also tabled; if so it would, no doubt, account for the distinction which is drawn between it and later explanatory memoranda and schedules. Although the foregoing explains the existence of features of this claim to privilege which are otherwise puzzling, those features nevertheless exist and may prove relevant to the availability of Crown privilege for these documents.
Other documents
The remaining documents for which the Commonwealth claims Crown privilege can conveniently be dealt with in three categories; first, a number of inter-ministerial and inter-departmental documents; secondly, a minute paper by a Treasury officer addressed to the Treasurer; thirdly, papers which may be described as Loan Council documents.
The first of these categories, the general body of inter-ministerial and inter-departmental documents, are the subject of affidavits sworn by two Ministers of the present government, Mr. Nixon and Mr. Lynch. The former refers to three Treasury memoranda to the Department of Minerals and Energy, together with two copy letters from the then Treasurer to the Minister for Minerals and Energy. It describes them as of a class which public interest requires should not be disclosed, adding that their non-disclosure is "necessary" for the proper functioning of the Executive Government and of the public service. The affidavit of Mr. Lynch refers to two documents presently relevant. The first is a "note for file", recording a meeting held between the Secretary to the Treasury and certain of his senior officers at which the Secretary reported upon an earlier meeting he had attended with Ministers and the Secretary of the Department of Minerals and Energy and gave instructions for the carrying out of decisions made at that earlier meeting. This was, incidentally, a document not sought by the informant but only by Mr . Whitlam in a subpoena served by him. The second is a letter from the Minister for Minerals and Energy to the Treasurer. The claim to privilege is again a class claim and, with only slight verbal changes, the reasons urged for non-production are the same as those given by Mr. Lynch.
Neither deponent claims to have read the relevant documents and the privilege claimed is expressly founded upon the class of documents in question.
In a separate affidavit Mr. Lynch claims Crown privilege for a minute paper from a Mr. Stone of Treasury to the Treasurer relating to the proposed overseas borrowing of four billion dollars. Again the same grounds of objection are taken, grounds relying upon the class of document in question, being "a communication between a senior official of the Australian Public Service and a Minister of the Crown in relation to matters of policy". What is notable about this minute paper is that what purports to be a complete copy of it appeared not only in one of the many books published in Australia and dealing with the political and constitutional crises of 1975, in relation to which the author thought that the former government's attempted overseas borrowings was relevant, but also in a national news magazine circulating throughout Australia. If what has been so published is in fact a copy of Mr. Stone's minute it will have already received very wide publicity in this country.
The last category of documents the subject of the Commonwealth's claim to privilege which the magistrate upheld and which the informant contests consists of various documents associated with the Commonwealth's Loan Programme as submitted to meetings of the Australian Loan Council in 1974 and early 1975. It emerged in argument before us that all that the informant required from the numerous documents falling within this category was the negative evidence that the Commonwealth's programme did not include the proposed loan of four billion dollars. For reasons which will later emerge it is unnecessary now to say more about these documents, production of which is objected to upon the ground that it will be injurious to the proper functioning of the Loan Council.
This concludes the category of documents for which the Commonwealth claims Crown privilege. On behalf of Mr. Whitlam that same privilege is also claimed for all Executive Council documents , whether or not tabled in Parliament, and for a group of documents passing between the Department of Minerals and Energy or its Minister and outside parties, which were tabled in Parliament .
Leaving aside, for the present, the case of Loan Council documents, I consider that none of the documents for which privilege has been claimed, whether by the Commonwealth or on Mr. Whitlam's behalf, should, in the circumstances of this case, be accorded Crown privilege.
Factors in the balancing process
I have reached this conclusion by weighing as best I can those competing aspects of the public interest here in question and by concluding that those favouring non-disclosure are outweighed by those favouring disclosure. The latter consist not only of the usual, quite general concern that the course of justice should not be impeded but also of more particular considerations which flow from the unusual character of the present proceedings, involving as they do criminal charges against a former Prime Minister and senior members of his Ministry directly related to their conduct in office.
The character of the proceedings has a triple significance. First, it makes it very likely that, for the prosecution to be successful, its evidence must include documents of a class hitherto regarded as undoubtedly the subject of Crown privilege. But, then, to accord privilege to such documents as a matter of course is to come close to conferring immunity from conviction upon those who may occupy or may have occupied high offices of State if proceeded against in relation to their conduct in those offices. Those in whom resides the power ultimately to decide whether or not to claim privilege will in fact be exercising a far more potent power: by a decision to claim privilege dismissal of the charge will be well-nigh ensured. Secondly, and assuming for the moment that there should prove to be any substance in the present charges, their character must raise doubts about the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being the reasons in fact relied upon in this case. Those reasons, the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it. Thirdly, the high offices which were occupied by those charged and the nature of the conspiracies sought to be attributed to them in those offices must make it a matter of more than usual public interest that in the disposition of the charges the course of justice be in no way unnecessarily impeded. For such charges to have remained pending and unresolved for as long as they have is bad enough; if they are now to be met with a claim to Crown privilege, invoked for the protection of the proper functioning of the executive government, some high degree of public interest in non-disclosure should be shown before his privilege should be accorded.
The strongest ground made out for the claim to Crown privilege in this case is, however, that many of the documents do concern this very level of government decision-making, an area which has customarily been spoken of as pre-eminently one for the application of the privilege. For example, it has, in the past, been usual to speak of cabinet minutes and the like as unquestioningly entitled to Crown privilege; in Conway v. Rimmer [1968] AC 910 each of their Lordships in turn spoke in this vein [1968] AC at pp 952, 973, 979, 987, 993 and in Reg. v. Lewes Justices; Ex parte Home Secretary (Rogers v. Home Secretary) [1973] AC 388 , at p412 Lord Salmon said much the same, as did Menzies J. in Lanyon Pty. Ltd. v. The Commonwealth (1974) 129 CLR 650 , at p 653 , albeit with a qualification relating to "very special circumstances"; so too Mason J. in Australian National Airlines Commission v. The Commonwealth (1975) 132 CLR 582 , at p591 . Documents of this character have often been coupled with defence secrets and with the nation's diplomatic relations with foreign governments as archetypes of Crown privilege. However, all this has been said in judgments which were concerned with situations very different from the present and usually in the context of a general description of the doctrine of Crown privilege, often as a preliminary to the actual application of that doctrine to the particular facts of the case in hand.
In no case, from what seems to have been one of the first judicial considerations of Crown privilege, viz. Anderson v. Hamilton (1816) 2 Br & B 156n (129 ER 917) , to date, has a Court been concerned with criminal charges alleging against Ministers of the Crown that they conspired together, in their role as Ministers, to effect unlawful purposes. Judicial descriptions of the general doctrine of Crown privilege must necessarily be affected by the facts of the case in hand; they cannot be applied to wholly unforeseen and quite different circumstances and used as rules of law governing those circumstances. Instead the principles upon which Crown privilege is founded and by reference to which it has operated must be applied to the very special circumstances of the present case .
Those principles are, I think, clear enough and I entertain no doubt as to their application in the present case.
That the task of a Court, in dealing with a claim to Crown privilege, is to weigh competing public interests is clear: their Lordships said so in Conway v. Rimmer, notably by Lord Reid [1968] AC, at pp 950-995 , by Lord Morris [1968] AC, at pp 956-957, 972 ,by Lord Pearce [1968] AC, at pp 986-987 and by Lord Upjohn [1968] AC, at p 992 ,and again in Rogers v. Home Secretary, especially by Lord Reid [1973] AC, at p 400 , by Lord Pearson [1973] AC, at p 406 by Lord Pearson [1973] AC, at p 406 and by Lord Salmon [1973] AC, at p 712 . Lord Denning M.R. had earlier expressed a like view in In re Grosvenor Hotel, London (No. 2) (1965) Ch 1210, at p 1246 . In Konia v. Morley (1976) 1 NZLR 455 the New Zealand Court of Appeal similarly spoke of weighing the two aspects of public interest against each other (1976) 1 NZIR, at pp 46, 467 . Scottish law, as declared on appeal to the House of Lords in Glasgow Corporation v. Central Land Board 1956 S.C. (H.L.) 1. , is to the same effect-per Lord Normand 1956 S.C. (H.L.), at pp. 12-14, 16. and especially per Lord Radcliffe who 1956 S.C. (H.L.), at pp. 18-19. , speaks of the interests of government as not exhausting the public interest, another aspect of which is the need that impartial justice be done in the courts of law. The United States, Supreme Court, in United States v. Nixon (1974) 418 US 683, at p 711 (41 Law Ed 2d 1039, at p 1066) , spoke of the same concept, although the weight it attached to the due administration of justice gave to its balancing process a quality different from that applicable in Commonwealth jurisdictions.
What are now equally well established are the respective roles of the court and of those, usually the Crown, who assert Crown privilege. A claim to Crown privilege has no automatic operation; it always remains the function of the court to determine upon that claim. The claim, supported by whatever material may be thought appropriate to the occasion, does no more than draw to the court's attention what is said to be the entitlement to the privilege and provide the court with material which may assist it in determining whether or not Crown privilege should be accorded. A claim to the privilege is not essential to the invoking of Crown privilege. In cases of defence secrets, matters of diplomacy or affairs of government at the highest level, it will often appear readily enough that the balance of public interest is against disclosure. It is in these areas that, even in the absence of any claim to Crown privilege (perhaps because the Crown is not a party and may be unaware of what is afoot), a court, readily recognizing the proffered evidence for what it is, can, as many authorities establish, of its own motion enjoin its disclosure in court. Just as a claim is not essential, neither is it ever conclusive, although, in the areas which I have instanced, the court's acceptance of the claim may often be no more than a matter of form. It is not conclusive because the function of the court, once it becomes aware of the existence of material to which Crown privilege may apply, is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured.
That this is the touchstone by which the doctrine of Crown privilege operates emerges from those passages to which I have already referred in Conway v. Rimmer [1968] AC 910 and Rogers v. Home Secretary [1973] AC 388 , It was felicitously expressed by Lord Radcliffe in the Scottish appeal already referred to, Glasgow Corporation v. Central Land Board. His Lordship was there referring to Scots law but subsequent cases have shown it to be no different to what has now been established as the law in England. His Lordship said 1956 SC (HL), at pp 18-19:
"The power reserved to the Court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the Courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the Court would be better qualified than the Minister to measure the importance of such principles in application to the particular case that is before it."
I refrain from further citation of authority other than to quote the concise statement by Lord Pearson in Rogers v. Home Secretary where his Lordship said [1973] AC, at p 406:
"The court has to balance the detriment to the public interest on the administrative or executive side, which would result from the disclosure of the document or information, against the detriment to the public interest on the judicial side, which would result from non-disclosure of a document or information which is relevant to an issue in legal proceedings. Therefore the court, though naturally giving great weight to the opinion of the appropriate Minister conveyed through the Attorney-General or his representative, must have the final responsibility of deciding whether or not the document or information is to be disclosed."
The public interest as a variable
Relevant aspects of the public interest are not confined to strict and static classes. As Lord Hailsham of St. Marylebone observed in D.v. National Society for the Prevention of Cruelty to Children [1978] AC 171 , at p 230 "The categories of public interest are not closed . . .". In that case their Lordships discerned an aspect of the public interest, hitherto unremarked and which was quite unconnected with the affairs of central government but which was nevertheless proper to weigh in the balance and which in the outcome sufficed to outweigh that other public interest which exists in there being available to the court the information necessary for it to do justice between litigants.
That case provides an illustration of the need to consider the particular nature of the proceedings in which the claim to Crown privilege arises in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process. It was just such a recognition of the need to take account of what was in issue in the particular case that led Lord Keith, in Glasgow Corporation v. Central Land Board 1956 SC (HL), at p 25 , to cite with approval an earlier authority which spoke of the possibility that "a matter of private right might be of such magnitude, and might indeed be so related to public interest, as to make the problem a delicate one and difficult to solve" and then to go on to consider the magnitude of the private right in the instant case, concluding that "everything must depend on the particular circumstances of the case. It is impossible to lay down broad and general rules" 1956 SC (HL), at pp 25-26 . Lord Reid referred to the like consideration when, in Conway v. Rimmer, in rejecting the notion that a Minister's claim to privilege was conclusive, he pointed out [1968] AC, at p 943 , that the Minister had no duty to consider the degree of public interest involved in a particular case in frustrating the due administration of justice, it mattering not to the Minister "whether the result of withholding a document is merely to deprive a litigant of some evidence on a minor issue in a case of little importance or, on the other hand, is to make it impossible to do justice at all in a case of the greatest importance". In Rogers v. Home Secretary Lord Reid [1973] AC, at p 401 , adverted to the same theme when, in weighing the competing claims of public interest, he gave less weight to the public interest that the course of justice should not be impeded than might otherwise have been the case because the documents production of which were being resisted "only came into existence because the applicant is asking for a privilege and is submitting his character and reputation to scrutiny. The documents are not used to deprive him of any legal right."
Perhaps the most striking example of the way in which the nature of the case will bear upon the judicial process of weighing aspects of the public interest is afforded by that well recognized exception to the general rule that Crown privilege is properly applicable to conceal the identity of police informers. It is an exception of long standing and is discussed by Kellock J. in the Supreme Court of Canada in Reg. v. Snider (1954) 4 DLR 483, at pp 490-491 . His Lordship refers first to the way in which Viscount Simon in Duncan v. Cammell, Laird [1942] AC 624 explicitly confined his observations on Crown privilege to civil cases and continues:
"Even in criminal proceedings it has been held, for example, that the usual rule that the channel of information giving rise to a prosecution is not to be disclosed upon the ground of public interest, is not an absolute rule. In Hardy's Case (1794) 24 State Trials 199, at p 808 Eyre C.J. said: 'There is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed: if it can be made appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it'. In referring to the above statement and to others of the same character, Viscount Simon said at the above page: 'Indeed, Eyre C.J., in the passage referred to appears only to be restricting needless cross-examination.' [1942] AC, at p 634.
There is, accordingly, not only a public interest in maintaining the secrecy of documents where the public interest would otherwise be damnified, as, for example, where disclosure would be injurious to national defence or to good diplomatic relations, or where the practice of keeping a class of document is necessary for the proper functioning of the public service, but there is also a public interest which says that 'an innocent man is not to be condemned when his innocence can be proved': per Lord Esher M.R. in Marks v. Beyfus (1890) 25 QBD 494, at p 498 . It cannot be said, however, that either the one or the other must invariably be dominant."
This exception was referred to in Rogers v. Home Secretary [1973] AC 388 and, most recently, by Lord Diplock and by Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children [1978] AC, at pp 218, 232 . Lord Simon of Glaisdale said of it [1978] AC, at p 232:
"The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial:."
If in the balancing process the circumstances of a particular case can affect the relative weight to be given to each of the respective public interests when placed in the scales, the outcome in the present case seems to me to be clear. I have already described the quite special aspects of the present case which in my view serve to give unusual weight to considerations favouring disclosure. The only outstanding characteristic of the contents of the other scale is that many documents in question are communications at or near the highest level of government; if not all attain the status of "Cabinet papers and the like" most at least approach it. This feature apart, the documents in question are unremarkable; nothing about them or the claims to privilege made for them comes anywhere near tipping the scales in favour of non-disclosure. The affidavits sworn by members of the present ministry and by senior public servants make it clear that all the claims to Crown privilege are class claims, not contents claims; it is not suggested that to disclose the contents of any of the documents, the Loan Council documents apart, will of itself result in detriment to the public interest flowing directly from the nature of what is disclosed. The detriment perceived is, rather, that generalized form of apprehended harm which, it is said, will flow from a realization by Cabinet Ministers and by public servants that what they conceived to be confidential communications can, in the event of appropriate curial proceedings being instituted, become public knowledge.
Those who urge Crown privilege for classes of documents, regardless of particular contents, carry a heavy burden. As Lord Reid said in Rogers v. Home Secretary [1973] AC, at p 400 the speeches in Conway v. Rimmer [1968] AC 910 have made it clear "that there is a heavy burden of proof" on those who make class claims. Sometimes class claims are supported by reference to the need to encourage candour on the part of public servants in their advice to Ministers, the immunity from subsequent disclosure which privilege affords being said to promote such candour. The affidavits in this case make reference to this aspect. Recent authorities have disposed of this ground as a tenable basis for privilege. Lord Radcliffe in the Glasgow Corporation Case remarked 1956 SC (HL), at p 20 that he would have supposed Crown servants to be "made of sterner stuff", a view shared by Harman L.J. in the Grosvenor Hotel Case (1965) Ch, at p 1255: then, in Conway v. Rimmer [1968] AC 901 , Lord Reid dismissed the "candour" argument but found the true basis for the public interest in secrecy, in the case of cabinet minutes and the like, to lie in the fact that were they to be disclosed this would "create or fan ill-informed or captious public or political criticism. . . . the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind" [1968] AC, at p 952 and see as to the ground of "candour" per Lord Morris [1968] AC, at p 959 , Lord Pearce [1968] AC, at pp 987-988 and Lord Upjohn [1968] AC, at pp 933-934 . In Rogers v. Home Secretary [1973] AC, at p 413 Lord Salmon spoke of the "candour" argument as "the old fallacy".
It is, then, only the status or near-status of many of the documents in question as cabinet papers that requires further consideration. I have already referred to those authorities which have given unqualified recognition to the clear entitlement of such documents to Crown privilege; also to the fact that what was said in those cases was said in the course of a general consideration of the doctrine, and this in a context which did not require any decision upon documents in fact having the character of Cabinet papers. Moreover those cases involved none of the quite special features which pervade this case. While according to those authorities the great respect to which they are clearly entitled, it would be wrong to regard them as determinative of this case. To do so would be to ignore the warning so recently given by Lord Diplock when he said that "To construe a judgment as if its function were to lay down a code of law is a common error into which the English reliance upon precedent makes it easy to fall": D. v. National Society for the Prevention of Cruelty to Children [1978] AC, at p 220 . The judge-made law relating to Crown privilege is no code, it erects no immutable classes of documents to which a so-called absolute privilege is to be accorded. On the contrary its essence is a recognition of the existence of the competing aspects of the public interest, their respective weights and hence the resultant balance varying from case to case.
The considerations to which I have already referred and which arise out of the circumstances of this case do, I think, in themselves suffice to require that Crown privilege be denied to the documents here in issue, even those of the status of cabinet papers and the like.
Prior Publication
There is, moreover, a further factor pointing in the same direction. The public interest in non-disclosure will be much reduced in weight if the document or information in question has already been published to the world at large. There is much authority to this effect, going back at least as far as Robinson v. South Australia (No. 2) [1931] AC 704 , at p 718 per Lord Blanesburgh. In 1949 Kriewaldt J., sitting in the Supreme Court of the Northern Territory, had occasion to review the relevant authorities in his judgment in Christie v. Ford (1957) 2 FLR 202 , at p 209 . The reason of the thing necessarily tends to deny privilege to information which is already public knowledge. As Lord Blanesburgh observed (25) "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". In Whitehall v. Whitehall 1957 SC 30, at p 38 the Lord President (Clyde) in referring to a document already the subject of some quite limited prior publicity observed that "The necessity for secrecy, which is the primary purpose of the certificate, then no longer operates . . ."
If the Executive Council minutes have in fact received wide publicity and if involved in that process has been the tabling of the minutes in Parliament, questions of proof and in particular of whether the proof of tabling involves an infringement of parliamentary privilege is said to arise. This I deal with later. Subject only to this, I would regard such publicity as going far towards destroying any claim to Crown privilege. The schedules associated with the minutes can scarcely survive as proper subjects for privilege if the minutes themselves have been made public. Likewise in the case of explanatory memoranda: if the minutes to which they relate have been made public, and in the absence of any claim that the actual contents of the memoranda are such that to publish them will prejudice the public interest, a mere class claim to privilege for them seems to be of relatively little weight
Mr. Stone's minute is also said to have been published, apparently without authorization. One question which arises is whether what has been published, copies of which appear as exhibits, is truly that minute. That could readily enough be resolved were the court to compare the original with those exhibits. I would see no objection to the adoption of such a straightforward course. It would provide a sure answer to the central question whether any aspect of the public interest will be injured by requiring the minute to be produced. If what has been published proves not to be Mr. Stone's minute the public interest will be furthered by ending the masquerade; if it is that minute, then its contents are already in the public domain and there can be no great public interest to be served by preserving its present ambiguous status. The prospect of a Court making a private examination of a document in the absence of the parties has long ceased to be regarded either as an impropriety or as a novelty. As Lord Hodson said in Conway v. Rimmer [1968] AC, at p 979:
"Each case is to be decided by the court. This means private inspection by the court in a proper case before production is ordered. This was thought at the time of the decision in Beatson v. Skene (1860) 5 H & N 838 (157 ER 1415) to have been objectionable and the same view was taken by this House in Duncan's Case [1942] AC 624 , but I see no objection to it in principle. Indeed the books contain a number of cases where as a preliminary to the consideration of production to the parties inspection by the court has been ordered."
and see per Lord Reid [1968] AC, at p 954 , Lord Pearce [1968] AC, at p 981 , and Lord Upjohn [1968] AC, at p 995 . To allow this minute Crown privilege if it has in fact featured on every news-stall in Australia would be to achieve "a result...little short of being ridiculous", as Lord Reid said of not altogether a dissimilar situation in his speech in Conway v. Rimmer [1968] AC, at p 950 .
In Rogers v. Home Secretary Lord Reid had occasion to distinguish between documents lawfully published and those which, as a result of "some wrongful means", have become public [1973] AC, at p 402 . That case was, however, concerned with a quite special class of document, confidential reports on applicants for licences to run gaming establishments, a class to which must apply considerations very similar to those which affect the reports of, or information about, police informers. There is, in those cases, the clearest public interest in preserving the flow of information by ensuring confidentiality and by not countenancing in any way breach of promised confidentiality. Those quite special considerations do not, I think, apply in the present case.
The other documents here in question have largely not been the subject of prior publication but all of them are in some degree affected by it. They consist of inter-ministerial and inter- and intra-departmental documents and of documents passing between a department and outside persons. All are apparently concerned with the proposed borrowing of four billion dollars which was the subject of the published Executive Council minutes. Once those minutes became public and subject to public speculation and discussion it is not easy to identify the particular quality of public interest which is said to reside in the non-production of these associated documents. Certainly the ministerial and other affidavits, involving no more than class claims and making only very general and unspecific references to the proper functioning of the executive and of the public service, provide no assistance in this regard.
It is in the light of all these circumstances that I have concluded that no Crown privilege should be accorded to any of these documents, once against excepting the Loan Council documents.
Loan Council documents
The position of what I have described as the Loan Council documents is in two respects different from that of other documents. The affidavit of Mr. Lynch which supports this claim to privilege is not confined to a mere reference to the proper functioning of the executive government and of the public service. It is both explicit and specific in relation to the class claim which it makes; its description of Loan Council meetings, of the matters there discussed between representatives of the governments of each entity in our federation and of the circumstances of those discussions, makes out a prima facie case of detriment to the public interest if these discussions, designedly held in secret, are to be subject to disclosure. What is, perhaps, more important is that it emerged in argument that the informant's case is in no way concerned with the contents of any of these Loan Council documents except in one specific, and what might be described as negative, respect. The informant has sought their production only for the purpose of establishing, if the need arises, that the alleged proposed borrowing of four billion dollars was not the subject of Loan Council consent .
The extent to which the Commonwealth has in fact availed itself of borrowings consented to by the Loan Council during the relevant period is information which is freely available to the public. It can only be to establish that any proposed borrowing consented to but not availed of did not include the sum of four billion dollars that the Loan Council papers are of materiality. At the conclusion of argument it seemed to me scarcely credible that an inspection of the papers would not reveal the practicability of extracting material in itself quite innocuous, consisting perhaps of no more than the figure of approved Commonwealth borrowings not in fact availed of, which would provide evidence of this negative character. Were production of such material, and of such material only, to be permitted, no public interest would be prejudiced and at the same time the course of justice would not be impeded unnecessarily. Authority for such a course is to be found in Conway v. Rimmer. Lord Reid [1968] AC, at p 946 , contemplated that part only of a document might properly be withheld, according to it alone privilege from production: Lord Pearce said [1968] AC, at p 988 , that the court might call for and itself inspect a document and then, if "part of a document is innocuous but part is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this will not give a distorted or misleading impression." A statement of the outcome of the inspection of the Loan Council documents which has in fact been undertaken by this Court appears at the end of the several statements of reasons for judgment in this case .
As will appear below, I have concluded that the terms of the charge alleging a conspiracy in breach of s. 86 (1) (c) of the Crimes Act 1914 in fact disclose no offence. Nevertheless, I have thought it appropriate to state my views concerning these Loan Council documents: they are, I think, relevant to the second charge, having regard to its concluding words.
The informant as private prosecutor
It remains only to say something of three matters related, directly or indirectly, to the Crown privilege point. The fact that the informant is a private citizen and that the committal proceedings are not the result of any initiative on the part of any government or police force can, I think, have no effect upon the question of Crown privilege. The nature of proceedings may affect the relative weight to be given to the respective public interest considerations but should not otherwise be of significance. If the criminal law should ever be found to be being used as a mere instrument with which to obtain access to material otherwise the proper subject of Crown privilege a solution lies not in any change in the doctrine of Crown privilege but rather in preventing any such mischievous abuse of the processes of the criminal law.
Who may rely on Crown privilege
The second matter can also be disposed of quite shortly. It is whether a party other than the Crown can raise a claim to Crown privilege and, if so, whether he may do so in the face of a deliberate failure by the Crown itself to claim such privilege. The first part of this question is not, I think, in doubt; the second part I prefer to leave unanswered for reasons which I shall state. The first must, I think, be answered "Yes". If, as the authorities disclose, it is appropriate for a court of its own motion to exclude material from evidence when it appears to it that to permit its production in open court will be prejudicial to the public interest, it can scarcely be contended that a litigant may not himself initiate matters by inviting the court's attention, in the first instance, to the character of such material. Such a litigant will necessarily be at a disadvantage. He will not possess the special knowledge and resources which uniquely qualify the Crown competently to judge what may imperil the public interest if publicly disclosed. But this goes rather to the outcome of his claim than to the making of it and will in any event, in obvious cases of State secrets, perhaps present little difficulty. Much will no doubt depend upon the apparent character of the document or information in question.
The second part of the question is of direct application to the present case. I have proceeded upon the footing that Mr. Whitlam may properly advance a claim to Crown privilege for such of those Executive Council papers as the Crown made no claim for. That has seemed to me a convenient course in this particular case, having regard to the conclusion which I have reached upon the Crown privilege claims generally. However this is not to be taken as reflecting any concluded view on the issue, which I prefer to leave open. I do so because I consider that much may depend upon particular circumstances, especially upon the reasons for the Crown's deliberate failure itself to claim privilege. If, for example, it were to do so upon some erroneous view of the law as to entitlement to Crown privilege that might present a very different circumstance from the case where the Crown expressly states that it makes no claim because it considers that no detriment to the public interest will flow from disclosure. The present case might have provided an example of the former: if it had appeared both that the Crown's sole reason for not claiming privilege for certain Executive Council papers was that it believed that their being tabled in Parliament was a necessary disqualification and that that belief was erroneous in law it may be that this would have afforded good ground for entertaining another party's claim to privilege. I think this issue is, on the whole, one better left to be resolved when the occasion positively requires it.
The issue of parliamentary privilege
The third matter is that concerning parliamentary privilege. Counsel for Mr. Whitlam relies upon this as requiring that, in the case of cabinet minutes, their tabling in Parliament should be excluded from all consideration. To do otherwise, so it is said, impeaches or questions that "freedom of speech and debates or proceedings in Parliament" insisted upon in 1688 in the Art. 9 of the Bill of Rights and infringes parliamentary privilege.
The intrusion into these proceedings of this question of parliamentary privilege demonstrates some of the difficulties which arise when resort is had to an action seeking declaratory relief as a means of affecting the course of pending proceedings. Neither this Court nor the Supreme Court of New South Wales before which these proceedings were first instituted has any appellate jurisdiction in respect of the still part-heard committal proceedings and this Court is concerned with what occurred in the committal proceedings only to the limited extent to which it provides a factual background against which declarations might be made. What is more, all it can know of those proceedings is what the parties have chosen to put before it. This consists of some material on affidavit together with the magistrate's summary of his decision and his reasons for that decision. It has before it no transcript of the committal proceedings as a whole.
The issue as to parliamentary privilege is not the subject of any claim for declaratory relief. It arises, if at all, only as a response to one answer which the informant makes to the cross-claim by Mr. Whitlam seeking a declaration that documents for which Crown privilege was not claimed by the Commonwealth should nevertheless be accorded that privilege. Whether it ever properly arises at all is, I think, at best very doubtful.
I have said that, in my view, prior publicity given to a document is a factor in determining whether a claim to Crown privilege properly attaches: such publicity necessarily affects whatever weight might otherwise be given to a submission that to fail to shield that document from the public gaze would be injurious to the public interest. But it is the fact of prior publicity that is material, not the particular medium by which publicity has been obtained. Before the magistrate the informant set out to prove tabling of the documents in Parliament; whether he sought also to show the fact of ultimate importance, namely that the documents in fact received wide publicity in consequence, does not precisely appear but it rather seems that he did not. The magistrate apparently had before him the relevant Standing Orders of both Houses. These provide that documents presented to the House "shall be considered public"; however they go on to restrict all public access to such documents, making it wholly dependent upon the permission of the presiding officer.
If the claim to Crown privilege for these particular documents depended exclusively upon the question of their having become matters of public knowledge it would be necessary for this Court either to have before it an adequate factual basis concerning public knowledge upon which to determine the claim to Crown privilege or to adopt the probably undesirable course of making a declaration the effect of which was expressed so as to depend for its operation upon subsequently established facts as to the extent of public knowledge. What it should not do in such circumstances is enter into a consideration of the propriety of the magistrate receiving evidence of tabling of the documents in Parliament, perhaps only to find that on the resumption of the committal proceedings that quite subsidiary, or perhaps false, issue may be wholly eclipsed by evidence of wide publicity having otherwise been given to the documents. The undesirability of my doing so is, of course, the greater since I have already concluded that, regardless of the issue of prior publicity, these documents are not entitled to Crown privilege. It may be noted that the magistrate, although ultimately ruling that he should give effect to the submission as to parliamentary privilege, nevertheless himself refused, for quite other reasons, to accord these documents Crown privilege.
There is, of course, an air of unreality about this whole issue; few persons who read Australian newspapers or listened to new bulletins during July 1975 could fail to recall that these documents were headline news throughout this continent at that time and became so not by any underhand means but by their full disclosure in the national Parliament. To ignore this fact may show a nice regard for the limits of judicial notice but scarcely justifies an otherwise unwarranted venturing into the debatable area of parliamentary privilege.
By his cross-claim Mr. Whitlam has sought declarations that neither the Financial Agreement 1927 nor any one of the four specified clauses of that agreement is a law of the Commonwealth within s. 86 (1) (c) of the Crimes Act 1914 and that to effect a borrowing by the Commonwealth in contravention of the Agreement is not to effect an unlawful purpose under a law of the Commonwealth within that section. These declarations are aimed at that information laid against the defendants which alleges a conspiracy to "effect a purpose that is unlawful under a law of the Commonwealth". Section 86 (1) (c) makes such a conspiracy an indictable offence. The particular unlawful purpose here alleged is the effecting of a borrowing by the Commonwealth in contravention of the Financial Agreement 1927, as amended. The Constitution Alteration (State Debts) 1928 and the Financial Agreement Act 1944 are also said to have been contravened but the particulars supplied disclose that it is the Financial Agreement itself that is central to the offence charged. Were this Court to make the declarations sought in the cross-claim the information charging a breach of s. 86 (1) (c) could not then be sustained: what it charges would then be seen to involve no offence, the conspiracy it alleges would not be one to effect a purpose "unlawful under a law of the Commonwealth".
The Financial Agreement 1927 was entered into before there existed any specific head of constitutional power authorizing the Commonwealth to make agreements with the States concerning their public debts. However the Agreement itself contemplated that an alteration should be made to the Constitution to confer such a power upon the Commonwealth. By s. 2 of the Financial Agreement Act 1928 (Cth) the agreement, which was scheduled to the Act, was "approved". Then by the Constitution Alteration (State Debts) 1928, which received the Royal assent in February 1929, the Constitution was altered by the inclusion of s. 105A, which specifically confers upon the Commonwealth a power to make such agreements with the States. This measure, being a proposed law for the alteration of the Constitution, had, in accordance with s. 128, been passed by absolute majorities of each House and had been approved by the requisite majorities of electors at a referendum before being presented for the Royal assent .
Then, in March 1929, the Financial Agreement Validation Act 1929 (Cth) was assented to. As its lengthy preamble reveals, its purpose was to validate the Agreement following alteration of the Constitution. This was done by s. 2 of the Act, the Agreement being scheduled to the Act for this purpose. Since 1929 the Financial Agreement has been consensually amended on a number of occasions, on each occasion the amending agreement made between Commonwealth and States being scheduled to a Commonwealth Act and being approved by the Parliaments of the Commonwealth and of the States. The Financial Agreement Act 1944 relates to such an agreement: it approves the amending agreement of that year, which is scheduled to the Act and to which the original Financial Agreement 1927 is in turn scheduled.
It is within one or more of the measures to which I have referred that the informant must locate his "law of the Commonwealth" upon which he relies to render "unlawful" the purpose of effecting the alleged borrowing by the Commonwealth, that being the purpose which he says that the defendants conspired to effect. For Mr. Whitlam it was contended that the Financial Agreement is not such a "law of the Commonwealth", nor is s. 105A of the Constitution or the Constitution Alteration (State Debts) 1928 and that in any event breach of the Financial Agreement by the Commonwealth is not "unlawful" within the meaning of s. 86 (1) (c). If unlawful in any sense it is only unlawful under the Constitution, which is not a law of the Commonwealth, and is not unlawful under any "law of the Commonwealth" such as the Constitution Alteration (State Debts) 1928, the Financial Agreement Acts of 1928 and 1944 or the Financial Agreement Validation Act 1929.
The context in which the phrase "unlawful under a law of the Commonwealth" occurs in s. 86 (1) (c) of the Crimes Act is largely neutral, neither providing particular guidance as to meaning nor requiring that any special or unusual meaning should be given to the words. What is at the core of the phrase is clear enough, namely offences against enactments of the federal legislature; it is at its periphery that doubts may exist. It has been with such peripheral areas that previous decisions of this Court on similar but not identical phrases have dealt: for instance, whether industrial awards or laws of a Territory form part of the law of the Commonwealth. However with such problems this case is not concerned.
It is convenient, at the outset, to dispose of such of the measures above referred to as appear to me to be clearly incapable of being "laws of the Commonwealth" which might render "unlawful" the alleged borrowing. The first of these is the Constitution itself and in particular s. 105A. The Constitution as originally enacted is not, I think, "a law of the Commonwealth" as that expression is employed in s. 86 (1) (c). It forms part of an enactment of the Imperial Parliament, not of the Commonwealth legislature, and rather than being a law of the Commonwealth it is the constitutional instrument to which that legislature from which laws of the Commonwealth emanate owes its existence and its law-making power. Section 61 of the Constitution, when it speaks of "the execution and maintenance of this Constitution, and of the laws of the Commonwealth" recognizes the Constitution as a measure distinct from the laws of the Commonwealth. No doubt the Constitution may be spoken of, in one sense, as being the fundamental law of the Commonwealth: but the words of s. 86 of the Crimes Act do not speak in any such broad jurisprudential terms. The past decisions of this Court which have in any way treated of this matter have always confined that which is a law of the Commonwealth to that which emanates directly or indirectly from an exercise of the legislative power of the federal Parliament.
If this be so, it would be curious to say the least, were an amended portion of the Constitution, such as s. 105A, to be regarded as a law of the Commonwealth while that which stands unamended is not. While the difficulties to which such a view gives rise would no doubt be most acute in the case of piecemeal amendments, such as those made to s. 13 of the Constitution, they remain formidable even where, as in the case of s. 105A, the amendment involves a new section, complete in itself. I regard that view as untenable. When the Commonwealth of Australia Constitution Act enacted the Constitution it provided, in s. 128, a means of altering that Constitution. That means involved a combination of legislative initiative and popular assent by referendum, followed by Royal assent. Whether that means should, despite the injection of the element of popular assent, be described as a law of the Commonwealth, may be debatable. Be that as it may, the means should not be confused with the result; if the means be relevantly a law of the Commonwealth it does not follow that so too is the result, namely that portion of the Constitution which reflects the alteration. The result remains the Constitution, the means prescribed for its alteration does not transmit to and infect with the character of the means that portion of the Constitution which it alters. An analogy exists in company law. A company's articles of association may be altered by special resolution but after alteration what is altered remains the company's articles; while the means is a special resolution the result is articles of association, albeit in amended form .
A consideration of the process of constitutional alteration confirms this. The measure for alteration, when assented to, does not itself become part of the constitutional text. It merely enacts the alteration and the alteration thereupon takes effect because the Commonwealth of Australia Constitution Act, by including in the Constitution which it creates the provisions of s. 128, so provides.
Accordingly, I do not regard either the Constitution in original form or any amendment to it as "a law of the Commonwealth" for the purposes of s. 86 (1) (c).
Even were this not so, s. 105A being in relevant respects to be regarded as a law of the Commonwealth, it would not, I think, be a law upon which the informant could rely as a source of "unlawfulness" for the purposes of s. 86 (1) (c).
The relevant unlawfulness is said to be disobedience of the requirement of cl. 4 (4) of the Financial Agreement 1927, which provides that moneys shall not be borrowed by the Commonwealth or any State otherwise than in accordance with the Agreement. To describe a conspiracy to effect a borrowing in breach of the requirement of cl. 4 (4) as the effecting of a purpose unlawful under s. 105A (5) gives to s. 105A (5) an operation it does not possess. The sub-section does not render the breach of an agreement to which it applies an act unlawful under the sub-section. Its purpose and effect is quite different: it is to place beyond the reach both of statutes and of constitutional principles and provisions the obligatory force of such agreements. The agreements which s. 105A contemplates are contracts between quite special parties, each possessing legislative powers and to whose capacity to contract and to perform its obligations constitutional principles and provisions apply. For the enforcement of the obligations of subjects the law of contract suffices, but for the parties to agreements under s. 105A more is required if the imposition upon them of contractual obligations is to be wholly effective. What more is required is, however, purely negative in form: the parties' power to legislate and the effect which constitutional principles and provisions may have upon their capacity must not be allowed to defeat, diminish or condition their contractual obligations. Sub-section (5) attains this by providing that such agreements shall be binding "notwithstanding anything contained" in the constitutions or laws of any party .
This is what I understand to have been the operation given to s. 105A (5) by the majority judgments in New South Wales v. The Commonwealth (No. 1) (1932) 46 CLR 155 and it accords full and exact effect to the words of the sub-section.
The law of contract gives to such agreements their binding force, which is then protected from the effects both of statute and of constitution. The failure to perform an obligation under such an agreement results in breach of contract but not in "unlawfulness under" s. 105A (5). Even were a party to such an agreement so to legislate or so to amend its constitution as purportedly to free itself from its contractual obligations under such an agreement, the consequence would be that the statutory or constitutional provision would be inoperative for that purpose in the face of s. 105A (5) but not, I think, "unlawful" within s. 86 (1) (c). It follows that s. 105A (5) cannot be relied upon to support the offence charged in the information.
I have described as debatable the question whether a measure to alter the Constitution under s. 128 is a law of the Commonwealth within s. 86 (1) (c). The presently relevant measure is the Constitution Alteration (State Debts) 1928. Its special character is reflected both in its preamble and its title. Its preamble accords recognition to the measure's compliance with the special requirements of s. 128 of the Constitution: instead of referring, in the usual way, to enactment of the measure by the Sovereign, the Senate and the House of Representatives, it adds the words "with the approval of the electors, as required by the Constitution". Its title significantly omits the word "Act", and this for good reasons since it is more than a mere enactment of the legislature: it is effective to do what no enactment of the legislature can achieve, that is, alter the terms of the Constitution. I find it unnecessary to determine whether the special character of this measure takes it out of the category of enactments which are laws of the Commonwealth, and this because, whether or not it be such a law, it is not a measure under which anything is rendered "unlawful", as is called for under s. 86 (1) (c). Its only operative effect is to alter the Constitution, that and no more. It contains but two sections, the first supplying its short title, the second stating that "The Constitution is altered" in a certain respect. Of its nature it is therefore incapable of being a law under which anything is made "unlawful".
I next turn to the Financial Agreement 1927 itself. Viewed in isolation it is not a law of the Commonwealth such as s. 86 (1) (c ) refers to any more than it is a law of any of the other entities of our federation which were parties to it. It is but the expression, in written form, of the consensus attained by the parties and is purely contractual in character. Whatever meanings "law" may have in some areas of jurisprudential discussion, I think it clear enough that when used in s. 86 (1) (c) the term "law" is incapable of extending to such an agreement. I speak, of course, of the Agreement itself; the effect of its approval or validation and of its inclusion as a schedule to federal legislation may, for the moment, be deferred.
It was submitted that the effect of s. 105A (5) upon the Agreement, according it a binding force which prevails over constitutions or statutes, served to make its provisions "law". Such a contention seems to involve first the construction of a hierarchy, then the identification within it of what are undoubtedly "laws", whether of the Commonwealth or of States, and, finally, the extension of the description "laws" so as to include all else in the hierarchy which may have an operation or effect superior to what are undoubted laws. Such a process assumes, without justification, that all that is more potent than a statute must, like statutes, be included in the description "law" as it is used in s. 86 (1) (c). However the assumption confuses that which answers the description of a law with that which has an effect similar, or superior, to such a law. It is with the former that s. 86 (1) (c) is alone concerned and, of course, then only with laws "of the Commonwealth". That the Financial Agreement may be immune from the effect of conflicting Commonwealth or State legislation does nothing to make it a law of the Commonwealth for the purpose of s. 86 (1) (c), any more than the Constitution itself is such a law.
There remain for consideration the Financial Agreement Act 1928, the Financial Agreement Validation Act 1929 and the Financial Agreement Act 1944. The first approves and the second validates the Financial Agreement 1927 and to each that agreement is scheduled, as it also is to the third of these measures. The approval of the Financial Agreement by the Act of 1928 produced, I think, a consequence no different from that which was held to flow from the similar statutory approval which had been accorded to the scheduled agreement which was in suit in Placer Development Ltd. v. The Commonwealth (1969) 121 CLR 353 . Of it Kitto J. said (1969) 121 CLR, at p 357 that the approval "merely fulfilled a condition precedent which the agreement itself set to its binding operation", it conferred no "more extensive legal obligation that the terms of the agreement themselves provided". In the present case the approval of the Financial Agreement cannot convert its contractual obligations into statutory duties a breach of which would be "unlawful" in the sense referred to in s. 86(1) (c).
The Act of 1929, which validated the Agreement following amendment of the Constitution, was passed in exercise of the specific power of legislative validation conferred by s 105a (2) of the Constitution. Such retrospective validation would appear to have the same effect as does prospective authorization, of which Dixon J. said, in P.J. Magennis Pty. Ltd. v. The Commonwealth (1949) 80 CLR 382 , at p 410 that it put "beyond doubt the authority of the signatory to execute the instrument", securing parliamentary approval of the transaction but going no further, "It does not otherwise change the legal character of the instrument or of the transaction it embodies". Thus the validation does not have the effect of converting the Agreement into a law such as s 86 (1) (c) calls for. With this quite limited effect may be contrasted that of statutes which not only schedule agreements but expressly enact that the terms of the scheduled agreement shall be observed by the parties. As Lord Cairns L.C. said of such a statute in Caledonian Railway Co. v. Greenock and Wemyss Bay Railway Co. (1874) LR 2 Sc & Div 347, at p 349 , "every provision and stipulation in that agteement becomes as obligatory and binding" as if repeated in the statute. This is not, however, the effect of the present legislation which, in the words of Lord Cairns goes no further than to "give statutory validity to the agreement" (1874) LR 2 Sc & Div 347, at p 349 . In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] AC 260 there are reviewed the more recent English authorities as to statutory notice being accorded to contracts. Bearing in mind the words of the statute in question in the Pyx Granite Case [1960] AC 260 and the fact that there was there no executed agreement at the time of that statute's enactment, nothing in their Lordships' speeches is, I think, in any way opposed to the conclusions expressed above.
It follows that in my view no one of the provisions upon which the informant might seek to rely, as being a law of the Commonwealth under which the purpose of the alleged conspiracy is made unlawful, in fact answers that description: nor will the interaction of any combination of these provisions better serve his purpose. My conclusion is that the information which alleges this conspiracy to affect a purpose unlawful under a law of the Commonwealth cannot be sustained. I would not make declarations precisely in the form sought by the cross-claim. Instead I would declare that, for the purposes of s. 86 (1) (c) of the Crimes Act 1914, no one of the provisions the effect of which I have discussed above, including the Constitution and the Financial Agreement 1927, is, separately or in combination with another or others of them, a law of the Commonwealth under which the purpose alleged in that information is unlawful.
The declaratory relief
Counsel for one of the defendants, Dr. Cairns, made two distinct submissions each of which raised in quite different ways the utility and propriety of the procedure adopted in this case, the seeking of declaratory relief in relation to rulings by a magistrate in committal proceedings. The first submission was that the various subpoenas duces tecum issued by the magistrate at the instance of the informant and which have given rise to the question of Crown privilege should be treated as in fact addressed to the Crown in right of the Commonwealth or to persons entitled to its immunities. So regarded, s 26 of the Justices Act, 1902 (NSW) does not, it is said, authorize the issue of such subpoenas or, if it does, it goes beyond power.
This submission was not made before the magistrate, is not the subject of any claim to relief either in the informant's summons or in the cross-claim and is not relied upon by counsel for the Commonwealth, the party most directly affected. It has been said that there are procedural and practical advantages which justify the institution of these proceedings. If there be such advantages, they may very readily be dissipated if, regardless of what has gone before, any party may canvass matters extraneous to the substance of the declaratory relief which is sought. This Court has heard lengthy argument upon Crown privilege for documents the production of which was sought by the issue of subpoenas. That argument has all proceeded upon the assumption, unchallenged in the committal proceedings, that the subpoenas were properly issued. I do not consider it appropriate now to embark upon the course of inquiry which this present submission, unsupported though it is by any express prayer for relief, would require. Accordingly I do no more than note that it was made.
The second submission urged on behalf of Dr. Cairns is that the Supreme Court of New South Wales lacks jurisdiction to give declaratory relief in the circumstances of this case; alternatively that as a matter of discretion no declaratory relief should be granted. On the question of jurisdiction I go directly to the authoritative statement of Gibbs J. in Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421 , at pp 435-536 . Omitting his Honour's citation of authorities, the passage runs as follows:
"The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, 'under O.XXV, r.5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion': . . .
However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words."
The passage has quite recently been relied upon by Needham J. in Bourke v. Hamilton (1977) 1 NSWLR 470 . His Honour's detailed review of those recent decisions in the New South Wales Supreme Court in which the use of declaratory relief in connexion with committal proceedings has been considered makes it unnecessary for me to traverse that ground. I need, I think, do not more than apply, as did Needham J., what was said by Gibbs J. in the Jododex Case (1972) 127 CLR 421 to the case in hand. That the informant was entitled to institute the committal proceedings is unquestioned, s. 13(a) of the Crimes Act 1914 (Cth) confers that right and to the extent that it does so it reflects the position at common law. It has always been the position, subject only to occasional statutory exceptions, that it is "the right of any member of the public to lay an information and to prosecute an offence", per Diplock J. in Lund v. Thompson [1959] 1 QB 283 , at p 285 ; and see Duchesne v. Finch (1912) 28 TLR 440 , at p 441 . As Lord Wilberforce observed in Gouriet v. Union of Post Office Workers [1978] AC 435 , at p 482 , "All citizens have sufficient interest in the enforcement of the law to entitle them to take this step", that is, to institute a prosecution - and see per Viscount Dilhorne [1978] AC, at p 490 and Lord Fraser of Tullybelton [1978] AC, at pp 520-521 . Having the carriage of the prosecution, the informant then caused subpoenas duces tecum to be issued and served. Again he had a clear right to do so-s. 85E of the Crimes Act 1914 (Cth) and s. 26 of the Justices Act, 1902 (NSW). When objections to compliance with those subpoenas were raised, based upon claims to Crown privilege, that immediately affected the informant in the exercise of the rights to which I have referred. That the rights which the informant is asserting are not concerned with the defence of his own person or property is no reason to deny them recognition. They are entitled to such recognition and there is, accordingly jurisdiction to make declarations such as are sought.
That proper sense of responsibility to which Lord Radcliffe refers in Ibeneweka v. Egbuna (1964) 1 WLR 219 , at p 225 when he reminds us that "judicial pronouncements ought not be issued unless there are circumstances which call for their making", will not, in my view, be lacking if this Court, in exercise of its discretion, determines to use the jurisdiction it possesses. I would, with respect, adopt the words of Walsh J. in the Jododex Case when he said (1972) 127 CLR, at p 428 , "I think that we ought not now to decide that the questions of law upon which the parties are in dispute should be left unresolved in these proceedings". If there be any merit in these proceedings it surely lies in the opportunity they afford of resolving once and for all questions of law first raised years ago in the magistrate's court at Queanbeyan and which have ever since troubled the parties and the courts. It being a matter of discretion, this Court should, in the particular circumstances of this case, grant such declaratory relief as the parties are entitled to. In many like cases an exercise of discretion in the contrary sense may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings. The past history of this case, to which sufficient reference has already been made, is such that these considerations, often proper to be taken into account and which may even prove decisive, are here of little if any weight. In conclusion on the question of discretion, it is, of course, relevant that in these proceedings it is no mere question of the admissibility of evidence in any ordinary sense that is in issue.
In addition to declaratory relief the informant in his summons sought mandatory orders. These were not, however, pressed in argument and should not, in the circumstances, be made.
Conclusions
It remains only to summarize my main conclusions as follows:
- 1.
- Both the Commonwealth and Mr. Whitlam fail in their respective claims to Crown privilege for the various documents identified in the course of my reasons for judgment other than Loan Council documents. With regard to the latter, for the reasons discussed the proper course has been to inspect them. The Court has done this, with the consequence stated at the conclusion of the judgments in this case .
- 2.
- The information charging a conspiracy to effect a purpose unlawful under a law of the Commonwealth discloses no offence, the informant having failed to establish that any law of the Commonwealth makes the alleged purpose an unlawful one.
- 3.
- There is jurisdiction to make declaratory orders to give effect to the foregoing conclusions and in its discretion the Court ought to exercise that jurisdiction.