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Report No. 88

III. Australia and Canada

10.20. Australia and Canada.-

In Australia, two important developments have taken place recently The well known decision of the High Court of Australia in Sankey v. Whitlam, 1978 ALR 505 (535-546) (High Court of Australia), specifically holds that it is the responsibility of the court to decide whether a document should be protected from disclosure in the public interest. The court must balance the public interest in non-disclosure against the public interest in proper justice.

The nature of the public interest involved will vary from case to case, so that the protection afforded to documents of a class concerned with high levels of Government cannot be absolute, nor enjoyed for ever. According to the above ruling, the fact that a document belongs to a class of documents that would ordinarily be regarded as protected from disclosure in the public interest is not necessarily determinative of the issue. Factors other than the document's membership of the class might be relevant to the balancing of the public interest.

10.21. The case mentioned above was a private prosecution brought against the former Prime Minister and two members of the Labour Ministry in Australia, alleging a conspiracy arising out of the so-called "Loans Affair". The documents summoned included documents1 comprising cabinet papers and communications between Ministers and senior officials of the Government in relation to matters of Government policy. Some of the documents had already been published in The Bulletin magazine and also in a book; some had even been tabled in Parliament in the course of a debate on the "Loans affair".

The magistrate before whom privilege was claimed upheld the claim of privilege by the Commissioners for all the documents summoned in respect of which the privilege had been claimed. The matter came up before the High Court on the informant seeking a writ of mandamus and declaration for production of the documents originally summoned. The High Court declared that (with one exception) all the documents ought to be produced. As regards the excepted document, a part of the said document was also to be made available. It was clearly laid down by the High Court that there was no particular class of documents exempt-not even cabinet papers. The nub of the decision is to be found in the statement of Stephen, J.2-

"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".

1. Dennis Pearce Of Ministers, Ref-cries and Informers-Evidence Inadmissible in the Public Interest, (1980), 54 Aust LJ 127 (128).

2. Sankey v. Whitlam, (1978) 54 ALJR 11 (31) (High Court of Australia).

Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back

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