Report No. 88
Brief Comparative Survey
I. General observations
10.1. General trends witnessed in England and other countries.-
A study of the comparable position in many other countries, particularly England, Australia, Canada and the United States, shows that by and large the law on the subject of State privilege is moving from rigidity to elasticity, from a formal approach to a liberal one and from the earlier position of control by the executive to the later position of the discretion being left increasingly to the judiciary. No doubt, extreme cases and unprecedented situations might provoke an extreme re-action in this or that direction.
In general, as stated above, two broad developments are witnessed: in the first place, the paramount test now recognised is that of injury to the public interest; in the second place, it is also now recognised that the ultimate authority to determine the availability of privilege in a particular case is the judiciary, and not the executive. This trend is illustrated in England by the leading decision in Conway v. Rimmer; in Australia by the leading decision in Sankey v. Whitlam; in Canada by the relevant case law; and in New Zealand also by the relevant case law. Some areas in Australia and (in regard to the Federal Court) Canada have adopted a different approach-but these might be regarded as aberrations.