Locate, read and do a case analysis on A v Hayden based on the High Court of Australia judgment (Full Court) and provide the following information, using the prescribed structure for this assignment:

PLAINTIFFS; DEFENDANTS.

PLAINTIFFS; DEFENDANTS. 156C.L.R.) OFAUSTRALIA. 533 Contract - Public policy-Contract of employment - Employment by Commonwealth -Term binding Commonwealth nottodisclose name of employee or any actperformed in course of employment - Whether contrary topublic interest andnational security-Suspicion thatcriminal offences committed incourse ofemployment -Security trainingexercise - Australian SecretIntelligence Service.

Injunction -Criminal Law - Suspected breach - Confidential information - Public interest -Prejudice tonational security-Functions of executive government.

Criminal Law-Defence ofsuperior orders-Whether maintainable. Atthe direction of theCommonwealth, theplaintiffs participated ina security trainingexercisearranged by theAustralian SecretIntelligence Service ("ASIS") inMelbourne. Four plaintiffs were ASIS officers, six were civilians under part·time employmentwithASIS fortraining, andonewas anarmy representative. Theexercise, tofree a"hostage" fromahotel room, went astray andcriminal offences wereallegedly committed. TheState Government askedtheCommonwealth todisclose tothe State Chief Commissioner ofPolice theidentity ofthe participants sothat hemight investigate thealleged crimes. Theplaintiffs soughttorestrain the Commonwealth fromdoing so. Aside fromthearmy representative, whose circumstances differed,theprincipal ground was thattheir contracts of employment withtheCommonwealth stipulatedforthe identity ofeach and of anyactdone in the course oftraining orwork forASIS to be confidential.

Held, refusing togrant Injunctions, by Mason, Murphy, Wilson, Brennan, DeaneandDawson JJ., that noenforceable dutywasowed by the Commonwealth tothe plaintiffs totreat as confidential theiridentities or details oftheir training orwork forASIS andthat, although disclosure would breach theterm forconfidentiality in their respective contractsof employment, thatterm was unenforceable.

Gibbs C.J.considered thattheCommonwealth owedanobligation of confidentiality whichwould be enforceable unlessitsenforcement would tend toobstruct thecourse ofjustice. Whether itdid sodepended uponthe judicial determination ofquestions offact, in particular whetherany plaintiff whoseidentity was sought todisclose wasreasonably suspectedof having committed abreach ofthe criminal lawand, if so, thenature ofthe breach. Per curiam. There isnoplace forageneral defence ofsuperior ordersor of Crown orexecutive fiatinAustralian criminal law. Per GibbsC.J.,Wilson andDawson H. Aprivate individual maynot attempt toestablish thecontrary whentheexecutive hastheconsidered view thatnational security will not be harmed by thedisclosure of information. Per Mason, Wilson, DeaneandDawson JJ. The Court will notlend its aid tothe enforcement ofacontractual obligationofconfidentiality undertaken by the Commonwealth, theeffect ofwhich would be toobstruct the administration ofthe criminal law,because to do sowould be contrary to public policy. Per Murphy andBrennan JJ. The Crown inright ofthe Commonwealth is incapable ofbinding itself by acontract purporting tooblige the Commonwealth torefuse todisclose anemployee's identity incircumstances where theexecutive government maythink disclosure tobe inthepublic interest. H.C.OFA. 1984.'--.,-'July 31; Aug. J; Nov. 6. GibbsC.J .. Mason.Murphy.Wilson.Brennan,Deane and Dawson JJ. 534 HIGH COURT[1984. H.C.OFA.1984.'---r--'A.l'. HAYDES. CASES STATED pursuanttothe Judiciary Act 1903 (Cth), s. 18. The plaintiffs, asCommonwealth employees,tookpart in 1983 in asecurity trainingexercise arranged by theAustralian Secret Intelligence Service in Melbourne. Theyweretorescue oneoftheir number, playingtherole of hosta$e, from his"captors" in ahotel room. Theydidso by breaking downthedoor ofthe room. The hotel manager wasnotwarned ofthe exercise. When he wentto investigate, theparticipants, wearingdisguises andcarrying firearms, left hurriedly. TheChief Commissioner ofPolice forthe State of Victoria apprehended thatcriminal offences hadbeen committed. At hisrequest theState Government askedtheCommonwealth to reveal thenames ofthe participants so that police inquiries could proceed. Ontheparticipants' application,Dawson J. inthe original jurisdiction ofthe High Court granted interlocutory injunctions restraining theCommonwealth andother parties fromdisclosing their identities unlessitshould bedetermined by pending actions . that thecontracts ofemployment, containingaterm purporting to bind theCommonwealth toconfidentiality, wereunenforceable.

There werethenpassed the Criminal Proceedings Act 1984(Vict.), a statute oflimited duration whichempowered courtsdetermining matters relating toAustralian nationalorinternational securityto sit as closed courts, andthe Judiciary Amendment Act 1984 (Cth), which gavebinding effectwithin Australia toorders ordirections made by a court inpursuance ofthe Victorian Act in respectof matters arising out ofthe 1983 ASIS exercise. TheCommonwealth then applied to have theinterlocutory injunctionsdissolvedupon the ground thattheintervening legislationhadremoved anyconcern about national securityandhadlefttheplaintiffs toseek relief only on the threatened breachofacontractual termwhich was unenforceable ongrounds ofpublic policy. Dawson J. refused to dissolve theinjunctions: A. v. Hayden (I). Thereafter, ineach action, Dawson J.statedacase andreserved questions oflaw forthe consideration ofthe Full Court. G. Griffith Q.c., Solicitor-General forthe Commonwealth, (with him M. Rozenes and Miss S. C. Kenny), forthe first, second and fourth defendants. Thecontracts ofemployment ofthe plaintiffs by theCommonwealth purportedtocontain aterm conferring immun­ ity from prosecution if theemployee shouldcommit criminal offences in the course ofthat employment. EithertheCommon­ wealth anditsofficers hadnocapacity toenter intocontracts (1) (1984) 59A.L.J.R. 1:56 A.L.R. 73. 156 C.L.R.] OF AUSTRALIA. 535 conferringsuchanimmunity orthe contracts, ontheir proper construction, donot extend farenough toconfer thatimmunity.

Where apublic officer withsufficient interestandstanding, suchas a State Chief Commissioner of Police, desires information which is saidtobe rendered confidential by thesecontracts, theCommon­ wealth should be abletoco-operate andshould not be presumed to have created an absolute obligation ofconfidentiality: Tournier v. National Provincial andUnion Bank of England (2); Parry-Jones v. LawSociety (3); Smorgon v. Australia & New Zealand Banking Group Ltd. (4). Where acontractual obligationcollideswiththe public interest inthe enforcement of thecriminal law,theformer should yield: Ansell Transport Industries (Operations) Ply.Ltd. v. TheCommonwealth (5). [MASON J.What is the actual ruleoflaw with which there isa collision inthe present case?] A literal construction wouldimport acontractual termpermitting these Commonwealth employeestobreach allcriminal lawwith impunity. It thus offends publicpolicyandobligations owedbythe Commonwealth tothe State of Victoria. [BRENNAN J. Is there anyconstitutional dutyonthe Common­ wealth toassist theStates inthe enforcement ofState laws?] There isno obligation, butthere istheconvention ofco-operative federalism whereby it would be inconsistent withtheCommon­ wealth's constitutional dutyfor it tobind itself nottoco-operate with theStates inthe enforcement of their laws. Tothat extent, the relevant term of thesecontracts could be regardedasunenforceable, being afetter onthe exercise ofthe Commonwealth's executive power. Additionally, theterm would be injurious tothe administration ofjustice andwould amount toastipulation for iniquity: Collins v. Blantern (6); Edgerton v. Brownlow (Earl) (7); Howard v. Odhams PressLtd. (8); Wilkinson v. Osborne (9). The courts haverefused tosupport agreements that tendtoprejudice the administration ofjustice. Ultimately it isforthe executive, notthe courts, todecide whether, havingregardtopublic policy, theterms of acontract suchasthe present contract prevailovertheinterests of the administration of justice. That freedom ofexecutive action cannot be qualified byasking theCourt toenforce thesecontracts. H.C.OFA. 1984.'---y-' A.I'. HAYDEN. (2) [1924]1 K.B.461. atpp. 472­ 473.481,486. (3/ [1969]1 Ch.I, atp.9. (4/11976) 134e.L.R.475,at p.488. (5) (1977) 139 e.L.R. 54, atp.72. (6) (1765)2Wils. K.B.342.at p.350 [95 E.R. 847, at p.852). (7) (1853) 4 H.L.e. 1[10 E.R.359]. (8) [1938]1 K.B.I,atp. 31. (9) (1915) 21 C.L.R. 89, atpp.97· 98, !OO. 536 HIGH COURT [1984. H.C.OFA.1984.'--,.---'A.V. HAYDE". Nordothe present circumstances supportthecontractual termfor confidentiality: The Commonwealth v. John Faiifax andSons Ltd. (10); Butler v. Board of Trade (11); Initial Services Ltd. v. Putterill (12). The plaintiffs cannotrelyonany issue relating to national security, nor isthe"balancing" processadopted inCrown privilege casesappropriate here:cf. Sankey v. Whitlam (13); Conway v. Rimmer (14); Reg. v. Lewes Justices; Ex parteHome Sec­ retary (15). For theCourt toreview thatmatter wouldbetousurp a function of the executive government: TheZamora (16); D. v. National Society for thePrevention of Cruelty toChildren (17); Chandler v. Director of Public Prosecutions (18). Inthe context of national security, allegations of riskofprivate lossand damage are irrelevant: Griffin v.South Australia (19). H. C. Berkeley Q.c., Solicitor-General forthe State ofVictoria, (with him P. G. Nash), forthe Attorney-General forthe State of Victoria, intervening in support of thedefendants. If the relevant term of the contract weremade between privateindividuals, it would bevoid andillegal astending toobstruct thecourse ofjustice: Halsbury's Laws of England, 4thed., vol. 9,s.v. "Contract" par. 398; Howard v. Odhams PressLtd. (20); W H. Smith andSon v. Clinton andHarris (21); Lound v. Grimwade (22). There is no duty ofconfidence arising out ofthese contracts forsuch aduty would fettertheexposure or prosecution of wrongdoing: Allied Mills Industries Pty.Ltd. v. Trade Practices Commission (23); Initial Services Ltd. v. Putterill (24); BritishSteelCorporation v. Granada Television Ltd. (25); NorwichPharmacal Co. v.CustomsandExcise Commissioners (26); Kerridge v.Simmonds (27). Itisneither necess­ ary nor possible toprove, asacondition toobtaining disclosure of the allegedly confidential matter,thatoffences havebeen commit­ ted: O'Rourke v.Darbishire (28). The agreement betweentheparties (10) (1980) 147 C.L.R. 39, atp.51. (II) [1971]1 Ch.680, atpp.689, 690. (12) [1968]1 Q.B.396, atpp.405, 411. (13) (1978) 142C.L.R. I,atpp.45, 60,68, 100. (14) [1968) A.C.910, atpp.955, 972. (15) [1973]A.C. 388.atp. 412. (16) [1916]2A.C. 77,atp. 107. (17) [19781 A.C. 171, atpp.231, 233. (18) [1964)A.C. 763,atp. 813. (19) (1925) 36C.L.R: 378, at p.394. (20) [1938)IK.B., atpp. 29-30. (21) (1908) 99L.T. 840. (22) (1888) 39Ch. 0.605. (23) (1981) 55F.L.R. 125, at pp.140, 166;34A.L.R. 105.atpp.118, 141. (24) [1968)1 Q.B.396. atpp.405, 410. (25) [1981] A.C.1096. (26) [1974]A.C.133,atpp. i75, 188,197.205. (27) (1906) 4C.L.R. 253, atp.261. (28) [1920]A.C.581, atpp. 604, 622,632. 156 CL.R.] OF AUSTRALIA. 537 nottodisclose namesinthe event thatcriminal offences are committed isa conspiracy todefeat thecourse ofjustice in relation to the judicial powerofthe Commonwealth. [GIBBS CJ. You areexpanding thelaw ofconspiracy verywidely.) The Court willnotcompel performance of acontract lawfulat the time itwas made butwhich, because ofchanges in circum­ stances orthe law, cannot lawfully be performed. Nor will itenforce a promise by aservant ofthe Crown, theperformance ofwhich would tendtoobstruct thecourse ofjustice, itbeing outside that servant's ostensible authoritysotobind theCrown in right ofthe Commonwealth: Clough v.Leahy (29). The principle thatcontracts may notinterfere withthecourse ofjustice isnot qualified by any exception wherethebenefit secured isforthe public: Windhill Local Board of Health v. Vint (30). E. D. Lloyd Q.C. (with him T. F. Danos), forthe plaintiff F. (ASIS officer). It was aterm ofthe contract ofemployment ofeach plaintiff except K. thattheidentity ofeach would be kept confidential. Suchaterm sodepends onmatters relatingtonational security thatnoother considerations shoulddisplace it: Conway v. Rimmer (31); Sankey v. Whit/am (32). Anyparty canraise the question of public interest immunity andnospecial deference should be paid tothe submissions forthe Crown in unusual circumstances where theCourt itselfseesthat national interestscouldbeharmed by breaching thecontractual term.

J. B. Bingeman, forthe plaintiffs A., 8., C, D.and E.(civilian part-time trainees).Thecontracts ofemployment imposeaduty to refrain fromdoing anact which actshould ifnecessary be restrained by injunction, damagesnotbeing anadequate remedy.The contracts wereentered intoforpurposes ofnational security, aswas the conduct ofthe employees thereunder. Theyacted according to theirinstructions.

[BRENNAN J. Youputinaplea of superior orders,forwhatever it isworth.) They havedone nothing thatdeviates fromtheirinstructions or their contracts.

[DEANE J.Onwhat basisshould we grant anorder obstructing the enforcement ofthe Victorian criminal law ,even ifsatisfied thatit is in thenational interest?] H.C.OF A. 1984.'-y-' A.V. HAYDEN. (29) (1904)2C.L.R. 139, atp. ISS. (30) (1890)45Ch. D.351. (31) [19681 A.C., atp.911. (32) (1978) 142 C.L.R., atpp. 44, 58,68. 538 HIGH COURT [1984. H.C.OFA. 1984.'--r-'A.\'. HAYDEN. It isnecessarytobalance competing interests. The courtwillitself assess fromthefacts whether nationalsecurity isthreatened; itwill not unquestioningly acceptadetermination by the executive government: Church of Scientology v. Woodward (33); Australian Communist Party v. TheCommonwealth (34). Here national secur­ ity will be prejudiced ifthe plaintiffs' namesarereleased. J. A. Strahan, for the plaintiff G.(civilian part-time trainee).I adopt thesubmissions madeforthe other plaintiffs. No reliance should be placed on InitialServices Ltd. v. Putterill (35) or Gartside v. Outram (36), asthey were cases inwhich nocontractual obligation existed.Herethecontracts werevalidandcontained no illegality attheir creation. Equitable reliefshould notberefused:

Spry, Equitable Remedies, 2nded. (1980), pp. 365, 380, or atleast not until theCourt hasidentified andconsidered allaspects ofthe public interest: Sankey v. Whitlam (37). The upholding of contrac· tual rights is paramount inthe public interest: Weld-Blundell v. Stephens (38). Insufficient materialhasbeen placed beforetheCourt to satisfy itthat theinterests of justice would be significantly advanced by refusing injunctive relief. P. R.Hayes, for the plaintiffs H., I.and J.(AS IS officers),adopted the submissions madeforthe other plaintiffs. D. H. McLennan, forthe plaintiff K. (member of theAustralian Army). Theadvice givento K. about hisposition withASIS and about confidentiality amountedeitherto an undertaking or toan acknowledgement by the Commonwealth thathisidentity would be keptconfidential. G. Griffith Q.c., in reply,referred to Reg. v. Rigby (39); Merchant ServiceGuild of Australasia v.Newcastle & Hunter River Steamship Co. Ltd. [No. II(40); Brisbane CityCouncil v. Valuer­ General (Q.) (41); Usher's Wiltshire Brewery v. Bruce (42); Howard (33) (1983) 154 C.L.R.25. (34) (1951) 83 C.L.R. I,atp.255. (35) [1968] IQ.B. 396. (36) (1856)26 L.J. Ch. 113. (37) (1978) 142 C.L.R., atp.60. (38) [1919]1 K.B. 520, atpp.544- 545. (39/ (1956) 100C.L.R. 146,atp. 150. (40) (1913) 16C.L.R. 591,at p.624. (40 (1978) 140C.L.R.41,atp. 58. (42) [1915] A.C.433. 156 C.L.R.] OF AUSTRALIA.539 v. OdhamsPressLtd. (43); and Universal Cargo Carriers Corpor­ ation v.Gtati [No.2] (44). Cur. adv.vult. Thefollowing writtenjudgments were delivered:- GIBBS C.J.This caseraises anunusual anddifficult question. It is whether theCommonwealth isentitled todisclose theidentity ofthe plaintiffs, whosenameshavesofar not been revealed, tothe Chief Commissioner ofPolice forVictoria, oneofwhose seniorofficers has deposed that hebelieves thattheparticipants inan incident at the Sheraton Hotel in Melbourne on30November 1983(who were in facttheplaintiffs) committed breachesofthe criminal law,and that it is essential thatheidentifies. theparticipants inorder to investigate properlywhetherthecrimes werecommitted andto apprehend andcharge theoffenders. Stated in that way,the question, although unusual,wouldappear aneasy onetoanswer.

The difficulty arisesfromanumber ofcircumstances towhich I shall shortly refer.Before doingso,Ishould say, by wayof explanation, thatwhen thealleged offences occurred theplaintiffs were taking part,atthe direction ofthe Commonwealth, in a training exercise devised by theAustralian SecretIntelligence Service ("ASIS"), anorganization established by theexecutive government ofthe Commonwealth forpurposes which include the collection offoreign intelligence by clandestine meansandthe maintenance ofacapability forcovert action in wartime orother special circumstances. Fourofthe plaintiffs (F.,H., Land J.) were employed by the Commonwealth as officers ofASIS and six (A., B., c., D.,E.and G.)had temporarily lefttheir civilian employment to undergo trainingorganized by ASIS.Theother plaintiff, K.,was a member ofthe Australian Armyandhadtheduty of providing training supportforASIS personnel. Theobject ofthe exercise in which theywere engaged wasstated tobe the rescue ofone ofthe participants, whowasplaying therole ofhostage, fromaroom on the tenth floorofthe hotel where hewas held by twoother participants whowere playing thepart ofguards. Theplan wasto try totrick theguards intoopening thedoor ofthe room, and, ifthat failed, tobreak down thedoor by force. Theplaintiffs (otherthan K.) weresupplied by anASIS officer withfirearms andblank ammunition. Withtheapproval ofthat officer theypurchased a sledge-hammer. In the course ofthe exercise, oneofthe participants, accompanied by four others, usedthesledge-hammer tobreak open H.C.OFA. 1984.'----r-'A.I'. HAYDE,...

NOY.6. (43) [1938]1 K.B.,atp. 31. (44) [1958]2 Q.B. 254,at p.264. 540 HIGH COURT [1984. H.C.OFA. 1984.'--..-'A.v. HAYDEN.

Gibbs c.J. adoor to the room inwhich the so-called hostagewasheld. When themanager of thehotel went to investigate what was happening, he was metbyaparticipant wearingamask; the two men entered the liftfrom which the manager hademerged and jostled one another until theliftarrived at the ground floor,theparticipant telling the manager that nobody wouldbehurt. Other participants, most wearing partymasks, emerged fromthelift at the ground floor level and made theirwaypastguests and staff to awaiting car. They carriedfirearms, including thepistol and two sub-machine guns.K.

played onlyaminor part in this exercise; hewaited, unarmed, inthe foyer of the hotel to observe the reactions of other persons in the hotel, and knew nothing of the events on the tenth floor or inthe lift. The fact that this foolish exercise wascarried out under the authority of the Commonwealth would initself provide no reason in law why the Commonwealth should not disclose theidentities of the plaintiffs to the Chief Commissioner. It isfundamental to our legal system that the executive has no power to authorize abreach of the law and that it is no excuse for an offender to say that heacted under the orders of asuperior officer. There are,however, threematters inparticular whichcreatethe difficulty in the presentcase.Inthe first place, itwas aterm of the contract of employment betweeneach of theplaintiffs except K. and the Commonwealth that "his identitywouldbekept confidential, and inparticular, exceptinso far asmight benecessary forthe conduct of thefunctions of ASIS, therewould not bedisclosed to any person (a) the name, address, occupation or any other particular identifying or likely toidentify himasaperson who worked for ASIS; (b) any act or thing done by him inthe course of his training or work forASIS". K. claims that the Commonwealth owed hima similar obligation. Duringacourse of instruction inASIS pro­ cedures, structure and organization, hewas advised by an ASIS officer, interms identical withthose of the contract to which Ihave just referred, that his identity wouldbekept confidential and,in particular, that there would not bedisclosed to any personthe matters specified inthe contractual term. H., I.and J. claimed that intheir contracts, inaddition tothe express contractual term, there was an implied term, but that isdeniedbythe defendants.

Secondly, it isagreed to beafact that the disclosure to foreign intelligence services of the identity of theplaintiffs wouldbe prejudicial to the international and national security of Australia and that if the names of theplaintiffs weremade public thisalso would beprejudicial tothe national and international security of Australia.However,the Chief Commissioner hasagreed to take any 156 CL.R.] OF AUSTRALIA. 541 measuresnecessary topreserve theconfidentiality of the identity of the participants "'so faraspracticable todo sointhe conduct ofhis investigation of breaches of the criminal lawalleged to have arisen out of theexercise and in theconduct of any prosecution arising out of suchinvestigation". Statuteshavebeenpassed by bothVictoria and theCommonwealth withaview topreserving such confidentiality. The CriminalProceedings Act 1984 (ViCL) em· powers thecourts of that State to make orders forconfidentiality in criminal proceedings arising out ofthe incident atthe Sheraton Hotel and the Judiciary Amendment Act 1984 (Cth) renders such orders enforceable throughouttheCommonwealth. It isaquestion, on which opinions maydiffer, whether thislegislation will be effective.Apartfromthefact that it isnaturally lefttothe discretion of the Victorian courtstodecide whether tomake theorders, itmay well be doubted whether itwould bebeyond thecapacity of a determined foreignintelligence agencytodiscover theidentity of the plaintiffs, oncepolice investigations andsubsequent prosecutions were setintrain. It should beadded that it is alleged that consequences of themost serious kind - thenature of which is more particularly mentioned in apart of the record towhich, atthe request of the Commonwealth, accesshasbeen prohibited without the approval of the Court - might ensue tothe plaintiffs andother persons ifthe names of theplaintiffs weredisclosed.

Thirdly, itseems mostunlikely thatall of theplaintiffs committed offences in the course of theexercise. Forinstance, nothingthat is statedinthe cases suggests that K.was guilty ofeven themost trivial offence. Itisagreed asafact that each of A., B., C, D., E.,G. and K. held anhonest belief that anything hewas instructed or authorized todo by ASIS hadtheauthority ofthe Australian Government, and that hewas authorized tocarry weapons andto break down thedoor. Each of thoseplaintiffs alleges that hehad an honest beliefthatASIS, before instructing andauthorizing them to do any act or thing,would obtain anyauthority or consent necessary tomake suchact or thing lawful. Eachplaintiff, except H., 1.-and J., alleges that every actorthing done in thecourse of the exercise waslawful and that hehas committed nobreach of the criminal lawand that there is noadmissible evidencethathe committed acriminal offence.It isnotclear whether theomission of this allegation fromthestated case in thematter of H., 1.and J.was deliberate, forthose plaintiffs domake that assertion in their statement of claim. TheDeputy Commissioner (Operations), Victoria PoliceForce, hasmade aformidable list of crimeswhichhe believes tohave beencommitted. Thelistmay be viewed withalittle scepticism; itappears that the Deputy Commissioner hasthought of H.C.OFA. 1984.

AL HAYDEl'.

Gibbse.J. 542 HIGH COURT [1984. H.C. OFA. 1984.'--.,---' A.I". HAYDE!"'.

Gibbs C.l. everypossible offencewhichmighthavebeen committed, placing the most serious interpretation oneverything that occurred. How­ ever, evenifsome of the plaintiffs committed some of theoffences listed bythe Deputy Commissioner, it is clear that notall the plaintiffs committed everyalleged offence: forexample, five at most were responsible forbreaking down the door.Indeed, asIhave said, it isimprobable thatevery plaintiff committed an offence, and itis disputed that any did. It is notsuggested that the Commonwealth is required, inthe sense of legally obliged, todisclose the names tothe police. The question iswhether itmay doso, having regardtothe contracts into which ithas entered and tothe considerations of national security which havebeenmentioned. Thefirst submission advanced on behalf of thedefendants was that thecontractual term,which on its face bound theCommonwealth nottodisclose theidentity of the plaintiffs, must be readdown tomake itsubject toan exception permitting disclosureinthe present circumstances. That argument cannot beaccepted. Thecases state what wasagreed bythe parties to be the term of the contract. Itisan ultimate fact,which the Court isobliged toaccept, that the term of thecontract wasexpressed in the words which Ihave quoted. Wecan of course determine the meaning of theterm asso expressed, butwe cannot engage ina process of construction that would resultinadeparture fromthe ordinary meaning of thosewords, sincetodo soitwould be necessary forustobe aware of the context provided bythe contract as awhole, inthe light of which eachprovision inthe contract has to be understood. Howeverwedo not know what other terms the contract contained. Wemust therefore givethewords of the term their ordinary meaning,whichbindstheCommonwealth tokeep the identity of the plaintiffs confidential inall circumstances. No doubt thisabsolute contractual obligation,like any other, would besubject to,and overridden by,the duty of theofficers of theCommonwealth tocomply withthelaw of theland: see Parry­ Jones v. LawSociety (45); Smorgon v. Australia & New Zealand Banking GroupLtd. (46). But,asIhave already indicated, it isnot suggested that the law imposes onthe Commonwealth or itsofficers any positive legalduty todisclose tothe police theidentity of the plaintiffs. It was however arguedonbehalf of the defendants that the contractual termwasunenforceable, fortwo reasons. The first of these reasons wasthat theterm operates toimpose aninvalid fetter (45) [1969]1 Ch. I,atpp. 7,9. (46) (1976) 134C.L.R.475,at p.488. 156 C.L.R.] OF AUSTRALIA.543 upon executive actioninamatter of public interest. Ofcourse any contract whichobliges thegovernment oran agency of the government totake or refrain fromtaking action of anykind operates tosome extent tofetter executive power,but,asAickin J. said in Ansett Transport Industries (Operations) Ply. Ltd. v. The Commonwealth (47), "It isplain thateven without statutory auth­ ority theCommonwealth in theexercise of itsexecutive powermay enter intobinding contracts affectingitsfuture action". The suggestion made by Rowlatt J. in Rederiaktiebolaget Amphitrite v. TheKing (48), thatthegovernment cannotbycontract fetterits executive actioninmatters whichconcern thewelfare ofthe State, istoo wide. It istrue that speaking generally thegovernment cannot by contract disableitselforits officers fromperforming aduty cast on itby statute or from freely exercising astatutory power or discretion: seeperMason J.in Ansett Transport Industries (Operations) Ply. Ltd. v. The Commonwealth (49). The same principle mayapply whentheCrown isentrusted withpowers under the prerogative: Commissioners of Crown Lands v. Page (50). However thisprinciple hasnoapplication tothe present case,where there exists norelevant poweror duty granted orimposed by statute or available undertheprerogative, and theCommonwealth seeksto do what any citizen mightordinarily do,i.e., pass oninformation in its possession. The second reasonadvanced insupport ofthe argument thatthe contractual term isunenforceable isthat theterm hasatendency to obstruct theadministration of justice and is therefore contraryto public policy. There is nodoubt thatacontract whichtendsto pervert or obstruct thecourse of justice isagainst publicpolicy. It is quiteunnecessary forpresent purposes toconsider whether itisright to say that such acontract is "illegal andvoid" orrather "unenforceable": seethe discussion byWindeyer J.in Brooks v. Burns PhilpTrustee Co. Ltd. (51). Inthe present casethecontrac­ tual undertaking, onitsface, reveals nottheslightest tendency to affect thecourse of justice. The covenant itselfdoesnotreveal the purpose ofsuppressing evidence,hindering theproper investigation of crime orconcealing thefact that anyone hasbroken thelaw, and if carried out according toits terms would notnecessarily have that effect,since,looking at thematter at the time when thecontract was made, nocriminal actmight ever be committed or contemplated by H.C.OFA. 1984.'---.,---' A.I'. HAYDES.

GibbsC.J. (47) (1977) 139C.L.R. 54, at p. 113.

(48) [1921]3 K.B.500, atp.503. (49) (1977) 139C.L.R., atpp. 74­ 75. (50) [1960]2 Q.B.274, atp.29I. (51) (1969) 121 C.L.R. 432. at pp. 458-461. 544 HIGH COURT [1984. H.C.OFA. 1984.'--,.--' A.\.. HAYDES.

Gibbs C.J. theplaintiffs. Thecontracts wereentered into by theCommon­ wealth withpersons who, we weretold,were actuated by high motives andwho were joining aservice whosefunctions are important tosociety andwhich couldnotproperly operateunless the identity ofits agents waskept secret. Anagreement tokeep the identity ofsuch persons secret is notcontrary topublic policy, unless, ofcourse, its actual purpose wastoshield oneofthe parties from liability forabreach of the law. Where acontract is not unlawful onitsface and is capable ofperformance withoutany violation ofthe law, it will be enforceable unlessit isproved thatone or both ofthe parties intended to perform itin anillegal manner or toeffect anillegal purpose: Waugh v. Morris (52); Hutchinson v. Scott (53); Patterson v. Lowe (54). Themere possibility thatthe contract inthe present casemight, ifperformed, obstructthecourse of justice wasnotenough torender itinvalid. There isnoproof that the parties intended thecontract to have anyeffect onthe administration of justice. Thecontractual termwasavalid one.

The defendants in argument madereference tothe decision ofthe Court ofAppeal in Howard v. Odhams Press. Ltd. (55), butthat case is not authority forany different view.Inthat case the defendant promisednottodivulge information giventohim by the plaintiff relatingtofrauds whichhadbeen committed andother frauds whichwereplanned. Greene L.J. (withwhom Greer L.J. agreed onthis point (56)) accepted thecorrectness ofthe view expressed in Weld-Blundell v. Stephens (57), that acontract notto disclose thefact that acrime hasbeen committed isnotnecessarily either illegalorcontrary topublic policy (58). Itwas however held that theagreement inthat case tokeep theinformation secretwas invalid asbeing against publicpolicybecause itpurported toprevent the defendant fromgiving information tothird parties whichmight assist themtosecure theconvictions of persons whohaddefrauded them in the past ortoprevent thecommission of frauds against them in the future (59). Howard v. Odhams Press Ltd. was thecase of an agreement whichcouldnot be performed withoutconcealing the frauds to which itrelated, unliketheagreement in the present case, which at thetime when itwas made didnot relate, andmight never haverelated, toany crime ormisconduct.

The fact that thecontractual term is not in itselfinvalid is not however theend ofthe matter. Thecourt will refuse to exercise its discretion infavour ofgranting equitable relief,such as an (52) (1873)L.R.8Q.B. 202. (53) (1905) 3C.L.R. 359. (54) [1955]SLR.Qd 437, atp.444. (55) 11938]1K.B. I. (56) [1938]1K.B., atp.22. (57) [1919] 1K.B. 520, atp.528. (58) [1938]1 K.B., atp.41. (59) [1938]1K.B., esp. atp.42. 156 C.L.R.) OF AUSTRALIA. 545 Injunction,toenforce an obligation ofconfidentiality whenthe consequence would be toprevent thedisclosure of criminality which in allthe circumstances itwould beinthe public interest toreveal. In Gartside v.Outram (60) itwas held that itwould be an answer to a bill for an injunction to restrain thedefendant, aformer servant, from disclosing materialsobtainedinthe course of hisemployment, that the materials 'showedthatthebusiness hadbeen fraudulently conducted. Wood V.c. saidthat "there is noconfidence asto the disclosure of iniquity" (61). This decision wasexplained bytwo members of the Court of Appeal in Weld·Blundell v. Stephens (62), asone inwhich thecourt declined togrant equitable reliefbecause the plaintiff hadnotcome withclean hands.

The concept of "iniquity", forthe purposes of the rule stated by Wood V.c., has been expanded toinclude misconduct generally:see InitialServices Ltd. v.Putterill (63); and BritishSteelCorporation v. Granada Television Ltd. (64). Indeed in Woodward v.Hutchins (65) itseems tohave beenheld that thepublic interest inknowing the truth canprevail over an obligation tomaintain confidence even when the personentitled tohave theconfidence kepthasnot been guilty of any misconduct. It isnotnecessary formetoconsider the authorities whichledto that decision -they arereviewed by Rath J. in Castrol Australia Pry. Ltd. v. Emtech Associates Pry. Ltd. (66); seealso Lion Laboratories Ltd. v. Evans (67). Wearenot here concerned with any extension of theso-called "iniquity" rule beyond thecase in which thematerial soughtto be disclosed issaid to reveal thatcrimes havebeencommitted. The passages from Weld-Blundell v. Stephens and Howard v. Odhams Press. Ltd. towhich Ihave already referred show that in thosecasestheview wastaken that an agreement nottodisclose the fact that a crime hasbeen committed isnotnecessarily contraryto public policy. In AlliedMillsIndustries Pry. Ltd. v. Trade Practices Commission (68), Sheppard J.,after acareful review of the authorities, concluded that "the publicinterest inthe disclosure ... of iniquity willalways outweigh thepublic interest inthe preservation of private andconfidential Information". That is too broad astatement, unless"iniquity" is confined to meanserious crime. Thepublic interest doesnot,inevery case,require the H.C. OFA. 1984.'----r--'A.}.!. HAYDEl<.

GibbsC.J. (60) (J856)26 LJ. Ch.113. (61) (1856) 26 LJ. Ch ..atp. 114. (62) [1919]1 K.B., atpp. 533-534.

547·548. (63) [1968]1 Q.B. 396. atp.405. (64/ [1981] A.C.1096. atpp. 1169.

1201. (65) [1977]1 W.L.R.760;[1977]2 All E.R. 751. (66) (1980) 51 F.L.R. 184. at pp. 210-216; 33 A.L.R.31, at pp. 53-57. (67) [1984]3W.L.R. 539;[1984J 2 All E.R. 417. (68) (1981) 55F.L.R., atp. 166; 34 A.L.R_. atp. 141. 546 HIGH COURT (1984. H.C.OFA. 1984.'----,----' A.l". HAYDEl'.

Gibbs C:J. disclosure of the fact that acriminal offence, however trivial,has been committed. And the administration of justice, although a fundamental public interest, isnot an exclusive publicinterest: per Lord Simon of Glaisdale in D. v. NationalSociety for the Prevention of Cruelty toChildren (69). Take an example from the present case.Suppose that the participant who entered the liftwith the manager did nothing that could possibly amount to the commission of acrime unless an offence was constituted by the fact that he and the manager jostled one another in the lift.Suppose also that itwas agreed that the public disclosure of the identity of that participant wouldbeprejudicial to the security of the nation, and might have serious consequences for the participanthimself and other persons. On those assumptions Ishould finditvery hard to conclude that the hands of the participant weresosullied that he should bt< denied equitable relief or that because of what on the presentmaterial would appear to be, at worst,a minor and harmless assault, thenational securityshouldbe put at risk and innocent persons, not themselves involved,shouldbe made possibly to suffer. It is clear that aperson who owes a duty to maintain confidentiality will not beallowed to escape from his obligation simply because healleges that crimes have been committed and that itis in the public interest that heshould disclose information relating to them. He bears the burden of establishing the facts upon which herelies to relieve him of the obligation. That seems clear on principle and Ihave seen no authority that suggests the contrary. In Gartside v. Outram (70) the question fordecision was whether interrogatories shouldbeanswered. The defendant, in order to prove the fraud on which herelied to make out his answer to the plaintiff's case, sought to interrogate the plaintiff to obtain evidence of the fraud. It was held that the plaintiff was bound to answer. Wood V.c. said(71), that itwould not have been enough if the defendant had made "a mere roving suggestion" of fraud, but that the defendant had raised aplain and definite case.Aleading authority inrelation toprivilege from discovery is ORourke v. Darbishire (72), where it was held that in order to displace pro­ fessional privilegeasa ground for resisting production of documents amere allegation of fraud in the pleadings is not sufficient; a prima faciecase of fraud must be made out (73). In Butler v. Board of Trade (74),where the question was whether aletter of advice written by asolicitor to his client, who at the time the question fell (69) [1978]A.C.171,atp. 231. (70) (1856)26 L.J. Ch.113. (71) (1856) 26 L.J. Ch., atp.114. (2) [1920] A.C.581. (73) [1920] A.C., atpp. 604,613­ 614,622-623,632-633. (74) [1971)1 Ch. 680. 156C.L.R.] OF AUSTRALIA. 547 for decision hadbecome thedefendant incriminal proceedings, was privileged, Goff J. said (75) that "what has to be shown primafacie isnotmerely that there isabona fideand reasonably tenablecharge of crimeorfraud butaprima faciecase that thecommunications in question weremade inpreparation for or infurtherance or as part of it". Similarly, where an obligation of confidentiality hasarisen, whether asaresult of express contract or because therelationship between theparties gaverisetoa duty of confidence, theparty who alleges factswhich show that theobligation doesnotextend tothe circumstances of the case must prove hisallegations. That means that inthe present casethedefendants mustestablish, at leastprima facie, that the failure todisclose theinformation wouldtendto obstruct thecourse of justice andwould be contrary tothe public interest. It would notbeenough tojustify thedisclosure of the confidential information in thepresent casethatthepolice have requested it. It wouldbenecessary toshow, at the very least, that there is reasonable groundtobelieve that any plaintiff whose identity it issoughttodisclose isimplicated inthe commission of an offence. Put in another way, at least what hastobe shown prima facie isthat there is"a bona fide and reasonably tenablecharge of crime"against anyplaintiff whoseidentity issought tobe disclosed. The bona fides of thepolice in the present case isnot in doubt,butit isaquestion whetheranycharge against eachplaintiff isreasonably tenable.

The Commonwealth owes an individualobligation of confidentiality toeach plaintiff withwhom ithas contracted. The case of each party musttherefore beexamined separately. If one party hascommitted abreach of the law, that isnoreason whythe court should refusetoassist another party toenforce thepromise made tohim bythe Commonwealth not todisclose hisidentity. The rights of aparty whohascommitted nomisconduct cannotbe denied because othersmay be at fault. That wouldbesoeven ifno adverse consequences couldensue to an innocent plaintiffifhis identity weredisclosed, but in thepresent casethedisclosure of the identity of a plaintiff mighthaveserious consequences forhim as well asfor others. The facts stated in thecases donot reveal anyground forbelief that any particular plaintiffcommitted anyoffence. Theystrongly suggest that K. was entirely innocent of anywrongdoing; heappears to have done no more thanremain in thehotel foyer forthe purpose of observing thereactions ofothers. It isconsistent withthefacts stated that some other plaintiffs werealsoquite innocent, andif any (75) [1971]1 Ch ..atp.689. H.C.OFA. 1984.'-r-'A.I'. HAYDEN.

Gibbs C.J. 548 HIGH COURT[1984. H.C.OFA. 1984.~A.

". HAYDEl'.

Gibbs eJ. offenceswerecommitted (which,asIhave said,theplaintiffs deny) it isimpossible todecide, onthe material whichappears inthe cases stated, which of theplaintiffs committed them. For thesereasons, in my opinion, itwill be necessary tofind further factsbefore itcan be determined whetherany,andif so which, ofthe plaintiffs will not receive theassistance of the Court to enforce thepromise madetohim by the Commonwealth tokeep his identity confidential. Ishould addthat there appears to be noreason to distinguish betweentheeffect ofthe obligation of confidence owed toK. and thecontractual obligationsowedtothe other plaintiffs. Ineach case, before thequestions can be answered in favour ofthe Commonwealth, itwill be necessary forit to be established that theparticular plaintiffwhosecase isunderconsider· ation isreasonably suspected of havingcommitted anoffence, andit will also be necessary forthe nature of theoffence toappear, so that the Court candecide whether thepublic interest requiring the disclosure of criminal activityoverrides theobligation of confidentiality inthe circumstances of thecase. Irepeat thatit isnot enough tojustify thedisclosure ofthe identity of allthe plaintiffs that it is suspected, andeven reasonably suspected,thatsome of them committed crimes. Itdoesnotaccord withmodern notionsof justice thattheinterests of all of themembers ofagroup should be sacrificed becausesomeofthose members aresuspected ofguilt when others areinnocent. In fact theCommonwealth should be well aware ofthe respective partsplayed bythe various participants in the affair, foraninvestigation hasalready beenconducted intothe matter by Hope J.for the Commonwealth.

The Court, in deciding whethertheplaintiffs areentitled tothe discretionary reliefwhich theyseek, cannot consider thedanger to the security of Australia that may result ifthe identity isdisclosed. That isbecause theexecutive, which isresponsible forthe national security, hasconsidered thematter andhasapparently satisfieditself that thesafeguards whichthepassage ofthe Criminal Proceedings Act 1984andthe Judiciary Amendment Act 1984 were intended to provide will prove sufficient. In TheCommonwealth v. Colonial Combing. SpinningandWeaving Co. Ltd. (76), Isaacs J. said that thewell·known dictumin TheZamora (77), that "those whoare responsible forthe national securitymust be thesole judges of what the national securityrequires" is "unquestionable law".The statement wouldnowadays be regarded astoo absolute. Itdoes not mean thatwhen theexecutive seeksaspecial privilege orimmunity (6) (1922) 31 C.L.R. 421, at p.442. (77) [1916]2 A.c. 77. atp. 107. 156C.L.R.] OF AUSTRALIA. 549 ongrounds of national securitythecourts willdefer without question tothe judgment ofthe executive astowhat thenational security requires.

If, forexample, theexecutive itselfsought, on grounds ofnational security, towithhold documents orinformation required forthe purpose ofthe administration ofjustice, thecourt and nottheexecutive woulddecide whether thenational security required thatthedocuments orinformation shouldnotbeproduced. The judgments in Sankey v. Whitlam (78) demonstrate that.How­ ever, when theexecutive, afterconsideration, assertsthatthe national securitywillnot be harmed by thedisclosure ofinfor­ mation, it isnotopen toaprivate individual toattempt toestablish the contrary. Aprivate litigantcannot be expected tohave the knowledge that would belikely tomake his views onsuch aquestion preferable tothose ofthe executive, andinany case this isan area of the exercise ofthe prerogative intowhich thecourt would be reluctant tointrude. The plaintiffs reliedonsome passages ofthe judgments in Sankey v. Whitlam (79) whereitwas recognized that in some cases when itappears that the public interest requires thata document be protected fromdisclosure, thecourt may, of itsown motion, intervene andwithhold production, eventhough no objection hasbeen taken by theexecutive. That will besowhen the executive hashad noopportunity toconsider thequestion at an appropriate levelbut,generally speaking, it will not be so where, after proper consideration, theexecutive hasdecided totake no objection. The judgments in Sankey v. Whitlam donot assist the plaintiffs inthe present case. The graveresponsibility fordeciding whether thenational securitywillsuffer ifthe identity ofthe plaintiffs isdisclosed mustrestsolely onthe executive.

However, forthe reasons Ihave given, it istheresponsibility of the Court todecide, ineach ofthe present cases,whether the enforcement of the obligation ofconfidentiality undoubtedlyowed by theCommonwealth wouldtendtoobstruct thecourse ofjustice and would therefore be contrary tothe public interest, anditcannot reach adecision onthat question untilithas been possible to determine whethercertainofthe allegations made by theplaintiffs are correct.

In each case, Ihold thattheanswers tothe questions depend upon thejudicial determination ofcertain ofthe allegations offact, particularly whetheranyplaintiff whoseidentity it is soughtto disclose isreasonably suspected of havingcommitted anybreach of thecriminal lawand if so thenature of such breach, andwould answer thequestions accordingly. (78)(1978) 142 C.L.R. I. (79)(1978) 142 C.L.R .•atpp. 44_ 68·69_100-101. H.C. OFA. 1984.'-.-'A.V. HAYDEN.

GibbsC.J. 550 HIGH COURT [1984. H.C.OFA. J984.'-v---'A.V. HAYDEl<. MASON J.There isanair ofunreality about this stated case.Ithas the appearance of alaw school mootbased onanepisode takenfrom the adventures of Maxwell Smart. ItfeaturestheCommonwealth in a new and somewhat unattractive role-recruiting officerstothe service ofASIS, itscounter-espionage organization,onthe footing that their names willbekept secret forreasons of national and personal security, instructing them through superiorofficersto participate inabizarre training exercise carried out at the Melbourne SheratonHotelwhich involved risks of disturbing the peace and of the commission of criminal offences, yetarguing that it is entitled todisclose theirnames tothe Chief Commissioner of Police forVictoria so that hemay conduct investigations witha view toenforcing thecriminal lawagainst them,theCommon­ wealth itselfbeing immune fromenforcement of thelaw notwith­ standing that through seniorofficers itinitiated thetraining exercise. The Commonwealth hasalegitimate concernwiththe administration of the criminal lawinits application to the events recorded inthe stated case.However, theemphasis whichthe Commonwealth seekstogive tothis responsibility shouldnotbe allowed toobscure itsresponsibility forwhat occurred.

It ispossible that thepromise wasgiven, and thearrangements forthe training exercise made,inthe belief that executive orderswouldprovide sufficient legalauthority or justification for what wasdone. It is very difficult tobelieve that this was theCommonwealth's view­ superior ordersarenot and never havebeenadefence in our law­ though it isconceivable that theplaintiffs mayhave hadsome such belief. Imention theseaspects of thecase lestconcentration on the legal questions presented bythe stated caseshould divertattention away fromtheprimary roleplayed bythe Commonwealth inthis enterprise, aprimary rolewhich should bekept steadily inmind if the criminal lawever comes tobe set inmotion against theplaintiffs. For the future, thepoint needs tobe made loudly and clearly, that if counter-espionage activitiesinvolvebreaches of the lawthey are liable toattract theconsequences that ordinarily flowfrom breaches of thelaw.

It is fortunate thattheenterprise resultedonlyinvery minor damage toproperty and that noone sustained personalinjuries:The publicity giventothe incident willnodoubt almost certainly ensure that exercises of thiskind will not berepeated. Fortunately the Commonwealth hasthecapacity throughitscontrol of its own organization toensure thatthere willbeno repetition. Inaunitary 156 C.L.R.] OF AUSTRALIA. 551 systemtheexecutive government would in allprobability relyonits capacity tocontrol itsorganization as asufficient meansofensuring that there would be norecurrence, withoutenforcing thecriminal law. The tensions produced bythe division ofpowers and responsibilities inour federal systemtendsometimes, as in thiscase, to generate legalissues which would notusually arise in anon- federal system. ' The evidence recited in thestated caseandthequestions which it presentsaresufficiently setout in the reasons forjudgment which have been prepared byWilson andDawson JJ. The form ofthe stated case,which isbynomeans amodel precedent, presentssome difficulties, certainlytothe Commonwealth inrelation tothe first argument whichitseeks toadvance. Theargument is that the relevant termofeach ofthe contracts ofemployment betweenthe plaintiffs A., B., c., D.,E.and G.and theCommonwealth requiring that hisname should bekept confidential shouldberead down so as topermit adisclosure ofidentity by the Commonwealth for purposes associated withtheadministration ofjustice, i.e.,tothe Chief Commissioner of Police toenable him to investigate whether the plaintiffs orany of them havecommitted acriminal offence.The Commissioner's anxietytoinvestigate thesecomparatively minor offences isa tribute tohis zeal.

No doubt in anappropriate case itwould be propertoconstrue the general wordsofacontract requiring aparty tokeep confiden­ tial thename ofanother party as permitting thedisclosure ofthe name forthe purpose ofenforcing thecriminal law.Where the general wordsofacontract aresusceptible ofsuch anarrow construction itwould beproper toread them strictly so as to impose no obstacle orobstruction tothe administration ofjustice. The well recognized publicpolicyorpublic interest in theadministration of justice, amatter tobe discussed whenIcome toconsider the Commonwealth's alternativesubmission thattherelevant term in thecontracts is void orunenforceable, wouldfavour sucha construction. Here,however, theform ofthe stated caseprecludes any consideration bythe Court ofthe first question whichthe Commonwealth seekstoraise. It issignificant thatthestated case does not set outtheevidence, documentary andoral, constituting the contracts. Insteadthestated caseitself recites in terms theeffect of the relevant promise. Inthe absence ofthe evidence towhich I have referred, theCourt cannot determine themeaning orcontent of the promise. What is ofspecial importance is thattheCourt cannot determine whetherthelimitation whichtheCommonwealth seeks toplace onthe contractual obligationnottodisclose is consistent withthepromises in theactual contracts considered in H.C.OF A. 1984.'-.,-'A.v. HAYDEr.;.

Mason J. 552 HIGH COURT[1984. H.C. OFA. 1984.'--r-'A.V. HAYDEN.

MasOn J. theirentirety. Thefactthat theparties hadit in mind thatASIS would engage in clandestine counter-espionage activitiesmighttend to suggest thattheobligation nottodisclose wasrelated notonly to national securitybut also toprotection fromtheenforcement from the law. Forthisreason aloneitwould be material toinquire whether thediscussions betweentheparties relating tothe obli­ gation nottodisclose wereassociated withliability forcriminal offences committed in thecourse ofASIS activites.

I turn tothe question ofenforceability. Fromtheearly daysofthe common law itwas theduty ofthe citizen todisclose anytreason or felony ofwhich hehad knowledge: Reg. v. Crimmins (80). Failure to perform theduty constituted theoffence ofmisprision offelony which was a common law misdemeanour punishable by imprison­ ment. In Crimmins theFull Court ofthe Supreme CourtofVictoria rejected thedictum ofLord Westbury in Williams v. Bayley (81), thatanessential element in thecrime wastheoffender's makinghis concealment ofthe crime asource ofprofit tohimself. Anddespite suggestions tothe contrary itwas accepted aslate as 1962 that misprision offelony was not obsolete: Sykes v. Director of Public Prosecutions (82). The compounding ofafelony wasalso acommon law misdemeanour. Anagreement nottoprosecute afelon orto stifle theprosecution ofafelony forconsideration amountedto compounding afelony. Therewas,however, nocommon law offence ofmisprision ofmisdemeanour andtheexistence ofthe offence ofcompounding amisdemeanour wasdoubtful.

The Criminal LawRevision Committee in itsSeventh Reporton Felonies andMisdemeanours (Cmnd. 2659) recommendedtheabol­ ition ofthe distinction betweenfeloniesandmisdemeanours and considered itto be objectionable: (a) that aperson should be criminally liablefornot reporting tothe police anyminor offence of which he might happen toknow; (b) that dishonesty wasnotan element in the omission togive information; and (c) thattheoffence of misprision offelony contained noclear limitations in relation to offences committed by nearrelatives. TheCommittee recommended that theonly casewhich needed to be provided forwas one in which a person accepts oragrees toaccept a bribe nottodisclose information tothe prosecution. The Criminal Law Act 1967 (U.K.) gave effect tothese recommendations. It abolished thedistinction between feloniesandmisdemeanours: s. I(I); and provided that in allmatters in which adistinction wasformerly drawnbetween them (80) [1959]V.R.270, atp.272. (81) (1866) L.R.1H.L. 200, at . pp.220-221. (82) [19621 A.C.528. 156 C.L.R.] OF AUSTRALIA. 553 the law andpractice weretobe assimilated tothat formerly applicable tomisdemeanours: s. 1(2). Misprision offelony thereby ceased toexist as an offence in English law.

Much thesame course wasfollowed inVictoria withthe enactment ofthe Crimes (Classification of Offences) Act 1981 (Vict.) which introduced s.,322BintotheCrimes Act 1958 (Vict.). That section abolished thedistinction betweenfeloniesandmisdemean­ ours, making thelaw and practice relatingtomisdemeanours applicable, therebyabolishing theoffence ofmisprision offelony.

The 1981 Act also introduced anew s. 326 which created thenew offence ofconcealing anoffence forabenefit, thegist of which is accepting abenefit fornot disclosing information whichmight be of material assistance insecuring aprosecution orconviction ofa serious indictable offence,theoffender knowing orbelieving that such anoffence orsome other serious indictable offencehasbeen committed. Section 326(5) providesthatthecompounding ofan offence otherthantreason shallnot be anoffence otherwise than under thesection.

The consequence ofthe amendments is that it is nolonger the duty ofacitizen in Victoria, as it once was,todisclose afelony of which hehas knowledge. And,as we haveseen, itnever wasthe duty ofacitizen in Victoria todisclose amisdemeanour ofwhich he had knowledge.

It follows thathadthepromise made by the Commonwealth nottodisciose theidentity ofsome ofthe plaintiffs been made byan ordinary citizen itwouldnothave involved himin any breach ofaduty imposed by the law ofVictoria in 1983. Andit has not been suggested thattheCommonwealth wasunder some overriding dutytodisclose itsknowledge ofafelony ormisdemean­ our which transcended theobligation ofthe ordinary citizen.

Accordingly, ifthe promise is void orunenforceable, it is not because it is inconsistent withtheduty imposed onthe Common­ wealth by law butbecause thepromise seekstoimpose anobligation which isat variance withafundamental headofpublic policy-the public interest in theenforcement ofthe criminal law and in the administration ofjustice. That there isapowerful publicinterest in theenforcement ofthe criminal law as animportant elementinthe administration ofjustice doesnotadmit ofdebate. Indeed, its importance has'been suchthatthecommon law has regarded as illegal "any contract orengagement havingatendency, however slight, toaffect theadministration ofjustice" to use thewords of Lord Lyndhurst in Egerton v. Brownlow (Earl) (83). InHoward v. (83) (1853) 4 H.L.e. I,atp.163 [10E.R. 359, atp.424]. H.C.OFA. J984.'-,---' A.l'. HAYDEN.

Mason J. 554 HIGH COURT [1984. H.C.oFA.1984.'-,--' A.V. HAYDEN.

Mason J. Odhams Press Ltd. (84), SiesserL.J.pointed outthat theperversion of justice maytakeplace in many ways. Oneexample was concealment orprocuring theconcealment ofafelony amounting to the offence ofmisprision. Anotherexample isanagreement notto prosecute ortostifle aprosecution whichatcommon law isvoidor unenforceable: Williams v.Bayley (85), per Lord Westbury.

Yet another example isanagreement betweenaprosecutor and persons indicted thatawitness shouldnotgive evidence atatrial for reward. In Collins v.Blantern (86) Wilmot C.J.,referring tosuch an agreement, observed (87): "This isacontract totempt aman totransgress thelaw, to do that which is injurious tothe community: it isvoidbythe common law;andthereason whythecommon lawsays such contracts arevoid, is forthe public good.Youshall not stipulate foriniquity. All writers uponourlawagree in this, no polluted handshalltouch the pure fountains ofjustice.

Whoever is a party toan unlawful contract, if he hathonce paid themoney stipulated to be paid in pursuance thereof,he shall nothave thehelp of aCourt tofetch itback again, you shall nothave aright ofaction whenyoucome intoaCourt of Justice in this unclean manner torecover it back. Procul O! procul esteprofani." This andother statements ofthe principle weremade at atime when the law did not: (a) differentiate betweenvoidandunenforceable contracts; and (b) drawadistinction betweenacontract whichwas unenforceable in the sense thatitcould not be suedonand a provision in a contract whichthecourts would notenforce in particular circumstances. Ishall discuss thisquestion later.

The final example isanagreement tocompromise legalproceed· ings foranoffence ofapublic nature which is illegal: Keir v. Leeman (88); Windhill LocalBoard of Health v. Vint (89). In Windhill, Cotton L.J.said (90): "... theCourt will not allow as legal anyagreement whichhas the effect ofwithdrawing fromtheordinary courseofjustice a prosecution whenit is foranact which is aninjury tothe public. Itwould be the case ofpersons takingintotheir own hands thedetermining whatought tobe done; and that ought not tobe taken intothehands ofany individuals, butought to be left tothe due administration ofthe law " These remarks areofspecial significance becausetheyshow thatthe (84) [1938]1 K.B.I, atp.29. (85) (1866) L.R.IH.L., atp.220. (86) (1765) 2Wils. K.B.341[95E.R.847]. (87) (1765) 2Wils. K.B., atp.350 [95E.R., atp.852J. (88) (1844) 6 Q.B. 308[115 E.R.

1I8J; (1846) 9Q.B. 371[115 E.R.1315]. (89) (1890) 45 Ch. D.351. (90) (1890) 45 Ch. D., atp.363. 156C.L.R.] OF AUSTRALIA. 555 underlying thrust of thecommon lawprinciple wasdirected as much against thedetriment whichwould becaused tothe administration of justice ifagreements ofthe kind inquestion were to beenforced as against the evil ofmaking knowledge of thecommission ofthe crime asource ofprofit tothe individual.

So much at least wasrecognized by Siesser L.J.in Howard v. Odhams Press Ltd. (91) when, in relation to theagreement under consideration in that case,heobserved that itwould havetheeffect of restricting theopportunity whichthedefendants and others might otherwise possesstoassist theauthorities inthe investigation and prosecution of the alleged crime and wentontorefer tothe judgment of Stirling J. in Lound v. Grimwade (92), where his Lordship, afterquoting theobservations of Lord Lyndhurst in Egerton (93) said: "Upon thisprinciple ithas been repeatedly held that agree­ ments tending toaffect thecourse of legal proceedings are illegal, evenalthough thoseproceedings maynotbestrictly criminal intheir nature." The assumption, unstatedbutunquestionably wellfounded, which liesbehind theobservations of Cotton LJ. in Windhill as applied andexpounded bySiesser LJ. isthat the effective enforce­ ment ofthe criminal law and theadministration ofjustice, whichare central elements inawell ordered democratic society,dependfor their efficacy onthe unrestricted freedomofeach and every citizen to assist and co-operate withtheauthorities inthe investigation and prosecution of criminal offences. There is therefore apowerful public interest inpromoting andpreserving thecitizen's freedom to assist andco-operate withtheauthorities inthe investigation and prosecution ofcrime. The force of this public interest wasformerly buttressed by the existence of the oldcommon lawoffences of misprision and compounding afelony. However, aswe have seen, the basic common lawprinciple reachesbeyondthecircumstances which giverisetothe old offences. Because the principlerestsonthe wider foundation of public interest already mentioned, itscontinued existence remainsunaffected by the abolition of theold offences and the creation ofthe new offence ofconcealment enshrinedin s. 326 of the CrimesAct. The publicinterest inthe enforcement ofthe criminal law isnot diminished becauseitnow depends, noton any duty orobligation on the part of the citizen togive information concerning thecommission of an offence,butonhis freedom to H.C.OfA. 1984.'-y--J A.1'. HAYDEN.

Mason 1. (91) [1938]1K.B., atp.31. (92) (1888) 39 Ch. D. 605, at p.612. (93) (1853) 4 H.L.e. 1 [10 E.R. 359]. 556 HIGH COURT [1984. H.C.OFA. 1984.'---,--' A.V. HAYDEK.

Mason J. decidewhataction hewill take. Theelimination ofthe duty togive information inrelation tofelonies, aconsequence ofthe abolition of misprision offelony, isno more thananacknowledgment that the duty is no longer suitedtothe conditions and circumstances of society, in which liberty ofaction onthe part ofthe individual isto be preferred tocoercive obligation. Indeed,theenactment ofthe relevant provisions ofthe Crimes (Classification of Offences) Act makes itall the more important that thecitizen's unrestricted freedom toassist theauthorities shouldbemaintained against influences andpressures whicharedesigned orcalculated toinduce him nottoexercise that freedom by way ofco-operating with the authorities. At firstglance itmight bethought thatthemaking ofacontract not todisclose information whichmayprove to be relevant tothe investigation ofacrime isno more thananexercise ofthe citizen's freedom ofaction towhich Ihave referred, butthis istoignore the element ofpublic policy. Generally speaking,themaking ofa contract isno more thananexercise of the citizen's freedom totake such action ashe thinks is appropriate, at least inthose areasin which heenjoys liberty of action. Undertaking toact inaparticular way inthe future is not ordinarily regardedasan illegitimate impairment ofthe individual's freedomtodecide forhimself what action hewill take, even though hisundertaking commitshim contractually toacourse ofaction inadvance ofthe projected event.

This isbecause noelement of public policy isinvolved whichwould require thattheexercise ofthe freedom shouldnotbequalified or impaired by entry intosome antecedent commitment or some antecedent commitment of aparticular kind. It is obvious that thepublic interest inthe enforcement ofthe criminal lawasan element inthe administration ofjustice wouldbe seriously impairedifthe citizen were at liberty to assume inreturn for abenefit an obligation nottodisclose information concerning the commission ofacriminal offence. The enforcement of the criminal lawcannot be allowed tohinge onthe willingness of the citizen tomake aprofit out of his silence, whether thecontract be made before orafter the commission ofthe offence. Theexistence of s. 326ofthe Crimes Act does notsupply areason forconfining the public interest inthe enforcement ofthe criminal lawtothe extent to disclosure of serious indictable offences.There isnofundamental inconsistency inrecognizing thewide public interest inthe administration of justice generally and in makingitacriminal offence toconceal forabenefit serious indictable offencesonly. The foregoing discussion indicatesthat,subject tominor qualifi­ cation only,LordLyndhurst wascorrect in Egerton v. 156C.L.R.) OF AUSTRALIA. 557 Brownlow (94) when hesaid that any contract having atendency, however slight,toaffect theadministration of justice is illegal. He was of course speaking of acontract or engagement whichhasa tendency toaffect theadministration ofjustice adversely. Ithas been said that itistheeffect of the contract rather than itspurpose or the motives of the parties to it that is important: Howard v. Odhams PressLtd. (95). In truth, itis the effect of theenforcement of the contract that isallimportant. In some casesit may not be easy to assess what impact thecontract, ifenforced, will have on the administration of justice, as,for example, wherein one respect the impact is adverse, butin other respects, beneficial: see,e.g., the discussion in Weld-Blundef! v. Stephens (96) and Howard v. OdhamsPressLtd.

Sometimes it issaid that acontract towhich theprinciple applies isvoid; at other timesit issaid that the contract isunenforceable or, as Lord Tenterden C.l. expressed itin Wetheref! v. Jones (97), that the court will not lend itsaid to the enforcement of the contract. The true position, asIsee it, isthat some contracts are void whereas others are valid, though the court will decline to enforce the particular provisioninavalid contract in particular circumstances when enforcement of that provision wouldhave an adverse effect on theadministration of justice. Thus, asimple agreement not to disclose the existence of a serious criminal offence,whichhasbeen, or isabout to be,committed inconsideration of the payment of a sum of money may well bevoid because it isillegal.However, itwill be otherwise withacontract which is inall respects lawfulbut nevertheless contains a provision which,ifenforced according toits terms, willresult in an interference withtheadministration of justice. Take a contract which contains aminor orsubsidiary provision which, though not directedtonon-disclosure of criminal offences, imposes an obligation of confidentiality insweeping terms. Ifthoseterms are not susceptible of beingreaddown, the court will refuse tolend itsaid to the enforcement of the provision if enforcement wouldresultin the non-disclosure of acriminal offence adversely affectingtheadministration of justice. Insuch acase the contract isnot void; nor is itunenforceable inthe sense inwhich that term iscustomarily usedinthe law of contracts. The case isone in which the court refuses aremedy on the ground of public policy. Beresford v. RoyalInsurance Co. (98) is an illustration of sucha case. H.C.oFA.1984.'-,.-' A.P. HAYDEN.

Mason J. (94) (1853) 4 H.L.e.. atp. 163 [10 E.R., atp.424]. (95) (1938] 1K.B ..atp.40. (96) (1919] 1K.B. 520. (97) (1832) 3 B.&Ad. 221, at pp. 225·226 [110 E.R. 82, at p.84]. (98) [1938] A.C 586. 558 HIGH COURT[1984. H.C.OFA. 1984.'---v-'A.I'. HAYDEl<.

Mason J. It was acknowledged in Egerton v. Brownlow (99) thatthe common lawprinciple whichIhave beendiscussing wasbased on public policy. Ithas attimes beenfashionable tocriticize public policy: see Janson v. Driefontein Consolidated Mines Ltd. (I); Fender v. St.John-Mildmay (2). Indeed in Egerton v. Brownlow itself Crompton J. thought thatvarying notionsofpublic expedi· ency would make it impossible todetermine itsscope andwould introduce uncertainty intotheascertainment oflegal rights (3). Other judges, anxious todistance themselves fromquestions of policy because theyarethought tofall within theprovince ofthe legislature haveasserted thatpublic policy is aspecies ofjudicial legislation. However,theplace ofpublic policyinthe formulation of the common lawhasbeen recognized by thegreatest judgesfrom early times: see,forexample, theopinion ofLord Mansfield in Jones v. Randall (4). In In re Morris (dec a) (5), adecision whichwas affirmed by this Court in Lieberman v.Morris (6), Jordan CJ. said: "... thephrase 'public policy'appears tomean theideas which for the time being prevail inacommunity as to the conditions necessary toensure itswelfare; sothat anything is treated as against publicpolicyifit isgenerally regardedasinjurious to the public interest. 'The"public policy"whichacourt isentitled to apply as atest ofvalidity toacontract isin relation tosome definite andgoverning principlewhichthecommunity asa whole hasalready adopted eitherformally by law ortacitly by itsgeneral courseofcorporate life,and which thecourts ofthe country cantherefore recognise andenforce. Thecourt isnota legislator: itcannot initiate theprinciple; itcan only state or formulate itifitalready exists': Wilkinson v. Osborne (7). It is well settledthatacontract isnot enforceable ifits enforcement would beopposed topublic policy: Mogul Steamship Co. v. McGregor, Gow & Co. (8). Publicpolicyisnot, however, fixed and stable. Fromgeneration togeneration ideaschange as to what is necessary orinjurious, so that 'public policy is a variable thing. It mustfluctuate withthecircumstances ofthe time': Naylor, Benzon & Co. v. Krainische Industrie Gesellschaft (9). New heads ofpublic policycomeintobeing, and oldheads undergo modification." In Egerton v. Brownlow Pollock L.CB.pointed outthat he would be abdicating thefunctions of hisoffice ifhewere todiscard public welfare fromconsideration andthought thatheought nottoshrink (99) (1853) 4 H.L.e. 1[10E.R.

359]. (I) [1902] A.e. 484. (2) [1938] A.e. I,at pp. 10·11,38­ 41. (3) (1853) 4H.L.e., atpp. 70·71 [10 E.R., at p.388]. (4) (1774) ICowp. 37,at p.39 [98 E.R. 954, atpp.955·956]. (5) (1943) 43 S.R.(N.S.W.) 352,at pp. 355-356. (6) (I944l69 e.L.R. 69. (7) (1915) 21 e.L.R. 89, atp.97. (8) [1892] A.e. 25, atpp. 39,51. (9) (1918]1 K.B.331, atp.342. 156C.L.R.) OF AUSTRALIA. 559 from applying itsprinciples to "any new and extraordinary casethat may arise" (10). He conceded that (11) "itmay be that Judges areno better abletodiscern what is for the public good than other experienced andenlightened members of thecommunity; but that is noreason fortheir refusing toentertain thequestion, and declining to decide uponit".Notwithstanding thecriticism of these remarks by Lord Wright in Fender v. St.John-Mildmay (12), Ifind them compelling. The refusal of the courts toenforce contracts on grounds of public policy isa striking illustration of thesubordination ofprivate right to public interest. Theproblem is one of formulating withany degree ofprecision thecriteria or thecircumstances whichwill justify acourt inrefusing toenforce acontract on the ground that there isacountervailing publicinterest amounting topublic policy. The difficulties inascertaining theexistence andstrength of an identifiable publicinterest towhich thecourts should giveeffect by refusing toenforce acontract aresoformidable astorequire that they "should useextreme reserveinholding suchacontract to be voidasagainst publicpolicy, andonly dosowhen thecontract is incontestably and on any view inimical tothe public interest", touse the words of Asquith L.J. in Monk/and v. Jack Barclay Ltd. (13). Here,however, thehead of public policyinvoked iswellrecognized and itrelates to the enforcement of the criminal law- a fieldin which thecourts haveaspecial interest and experience.

In the past that principle hasbeen applied tocontracts between private citizens. ButIcan seenoreason whyitshould not apply with at least equal force to acontract towhich theCommonwealth isaparty when thecontract issought to be enforced soas toprevent the Commonwealth fromassisting theexecutive government of a State in the investigation ofpossible breaches of criminal lawsofthe State. The question which then arises iswhetherarefusal todisclose the information requested to theChief Commissioner willhave a tendency tointerfere withtheenforcement ofthe criminal law.

Before Iturn tothis question Ishould consider theargument urged that there is acountervailing publicinterest, national and inter­ national security, whichmustbetaken intoaccount asacounter­ weight tothe public policyinthe administration of justice. Because a principle based on publicpolicy is necessarily areflection of judicial assessment of publicinterest, itgenerally follows that any H.C.OFA. 1984.'---,---' A.1'. HAYDEN.

Mason J. (IO) (1853) 4H.L.e., atp. 149 [10 E.R., atp.419J. (II) (l853}4H.L.e.,atp.15I[1OE.R., atp.419J. (12) [I938J 1 A.e., atpp.40-41.

(l3) [l951J 2 K.B. 252, atp.265. 560 HIGH COURT[1984. H.C.OF A. 1984.'---,--' A.

". HAYDEN.

Mason J. opposingpublicinterest mustbeidentified andweighed inthe balance sothat thecommon lawprinciple can be appropriately limited andapplied. It may be that thepublic interest inthe administration ofjustice andtheenforcement ofthe criminal law is sostrong that itcannot be outweighed by anycountervailing public interest, thoughIam byno means presently persuaded thatthis is thecase. Be this as itmay, security presents aparticular problem. That there isapublic interest in national andinternational security is beyondquestion. But in manysituations itmay be difficult or impossible foracourt tosatisfy itselfthatthere is athreat or prej udice tosecurity. This isonesuch case. Paragraph 31 of thefirst stated caserecites thatadvice hasbeen given by AS IS tothe Commonwealth thatthedisclosure ofthe participants' nameswould be prejudicial tothe national andinternational securityofAustralia.

We arenot told that theadvice is accurate or that theCommon­ wealth accepted it.Paragraph 33 recites thattheChief Com­ missioner hasagreed totake anymeasures necessary topreserve confidentiality ofthe identity ofthe participants "so faraspracti­ cable todo so in the conduct ofhis investigation". Paragraph40 then recites thatthefirst defendant, thefourth defendant andthe Commonwealth donot rely onnational andinternational securityas inhibiting thedisclosure of the names tothe Chief Commissioner and allege disclosure wouldnotprejudice nationalsecurity.

The contents ofthis paragraph arerelated torecently enacted legislation which isdesignedtopreserve ameasure ofconfidentiality in relation tothe names ofthe participants shouldcriminal proceedings be taken against them.The Criminal Proceedings Act 1984(Vict.) empowers thecourts ofthat State tomake orders for confidentiality in relation tocriminal proceedings arisingoutofthe events atthe Sheraton Hotel.The Judiciary Amendment Act 1984 (Cth)provides foreffect to be giventhroughout Australiatoany orders madepursuant tothe Victorian Actwith aview toensuring confiden tiality.

The qualification attachingtothe Chief Commissioner's claimas recorded in par. 33 excites somemisgiving astothe effectiven~ss of the arrangement madeformaintaining confidentiality ifdisclosure is made tohim forthe purpose ofthe proposed investigation.

However, thematerials in thestated casearequite inadequate to enable thisCourt tomake anyassessment ofthe threat tonational and international securityandforthat matter tothe personal safety of theparticipants whichmay be involved inthe proposed disclosure of their names tothe Chief Commissioner. For thisreason Iam unable tohold thatthere is acountervailing publicinterest which 156 C.L.R.] OF AUSTRALIA. 561 overcomesorneutralizes thetraditional publicpolicysupporting the common lawprinciple.

I return finally tothe question ofwhether non-disclosure ofthe names ofthe participants tothe Chief Commissioner will havea tendency toadversely affecttheenforcement ofthe criminal law. The question must be answered inthe affirmative ifonthe facts recited in the stated casethere arereasonable groundsfor apprehending thattheplaintiffs orany ofthem participated in the commission of the offences whichtheDeputy Commissioner (Operations) of the Victoria Policebelieves werecommitted inthe course ofthe training exercise. The list ofpossible offences recited in thestated caseseems to be exaggerated. However,ithas not been contested thatthere arereasonable groundsforapprehending that the plaintiffs participated inthe commission ofone ormore ofthe offences, though Idonot understand how K. wasinvolved in them. In the circumstances thequestion mustbeanswered in the affirmative.

What Ihave saidapplies withequal forcetoany implied or equitable obligation ofconfidentiality whichmayhave arisen onthe part ofthe Commonwealth inrelation tothe plaintiffs, though I havedifficulty inunderstanding howsuch anobligation couldarise in thosecasesinwhich theCommonwealth gaveanexpress promise not todisclose.

In actions Nos.M.lO 1, M.102 andM.103 of 1983 - 1. Yes. 2. (a) Yes; (b) No.3. There is nosuch enforceable duty. 4. No. 5. No.

In actionNo.M.104 of 1983 - 1. Yes. 2. (a) Yes; (b) No. 3. There is nosuch enforceable duty. 4. Unnecessary toanswer in light of the answer toquestion 3. 5. Unnecessary toanswer. 6. No. 7. No.

In action No.M.105 of 1983 -I.Not applicable. 2. Not applicable. 3. There isno such enforceable duty. 4. No.5. No. MURPHY J. Theplaintiffs claimaninjuntion torestrain the defendants fromrevealing tothe Victorian ChiefCommissioner of Police theiridentities aspersons who engaged in conduct whichhas been investigated by theVictorian policewithaview tocharging persons withvarious offences againstthelaws ofVictoria. This Court is not concerned withwhether theplaintiffs haveactually committed offences.That is forinvestigation ortrial, beyond the ambit of these proceedings. Theplaintiffs claimthattheCommon­ wealth hascontracted nottoreveal theiridentities. H.C.OFA. 1984.'--,--' A.v. HAYDEN.

Mason J. 562 HIGH COURT [1984. H.C.OFA. 1984.'--y--' A.1'. HAYDE".

Murphy J. Duringargument, importantquestionswereagitated - govern­ ment exemption ofits agents fromobserving the law - thedoctrine of superior orders - theextent towhich government actionmight be fettered bycontract - the relevance ofnational security. Exemption of agents from observing the law. Theexecutive powerofthe Commonwealth mustbeexercised in accordance withtheConstitution andthelaws ofthe Common­ wealth. TheGovernor-General, thefederal Executive Counciland every officer ofthe Commonwealth arebound toobserve thelaws of the land. Ifnecessary, constitutional andother writsareavailable to restrain apprehended violationsand to remedypastviolations. I restate theseelementary principlesbecauseastonishingly oneofthe plaintiffs assertedthroughcounselthat itfollowed fromthenature of the executive government thatit is notbeyond theexecutive power, even in asituation otherthanwar,toorder oneofits citizens to kill another person.Suchaproposition is inconsistent withthe rule oflaw. Itissubversive of the Constitution andthelaws. It is, in other countries, thejustification fordeath squads.

The conduct inVictoria outofwhich thecase arose was apparently intended as trainingforwhat might bedone by an Australian-directed group in othercountries. Theplaintiffs' case as firstpresented appearedtoassume thatwithout Parliament's authority, thegovernment (or its officers oragents) canauthorize persons, whether officers of theCommonwealth ornot, toengage in other countries in conduct which is againstthelaws of those countries (apartfromwhat is authorized byinternational law). Neither theCommonwealth norany ofitMinisters, officersor agents, military orcivilian, canlawfully authorize thecommission by anyone in another country ofconduct which is anoffence against thelaws ofthat country and is notauthorized byinter­ national law (for example, bythe laws ofwar). Whether Parliament could empower suchauthorization doesnotarise fordecision; ithas never purported todo so. Under ourConstitution andlaws, Australia isa law-abiding memberofthe community of nations. Superior orders. InAustralia it isnodefence tothe commission ofacriminal actor omission thatitwas done in obedience tothe orders ofasuperior or the government. Militaryandcivilians haveaduty toobey lawful orders, andaduty todisobey unlawful orders.Anydefence that conduct outofwhich thiscase arose wasinobedience toorders which werenotapparently unlawfulmayarise inother proceedings, but isnot now pertinent. 156 C.L.R.] OF AUSTRALIA.563 Contractual fettering of government action-Breach of confidence.

Confidentiality mayarise from contract orfrom circumstances. A court will,inan appropriate case,restrain breachofconfidence by one ofthe parties orby others. Acontract nottoreveal theidentity of aparty is,ingeneral, enforceable, butnotinall circumstances.

If the contract is valid, it is unenforceable inthe circumstances presented here. Itwould be contrarytopublic policyforaMinister or the executive government to be preventedfromrevealing information whichwould assistinthe investigation ofacrime, whether greatorless. The Minister is notbound toreveal the identity; it iswithinhisdiscretion whetherhedoes ornot. Common sense would suggest that thediscretion be exercised againstrevel­ ation inthe case of aminor offence, but this is forthe executive authority, notforthe court. However; Ido not accept thatthere was a valid butunenforceable contract.Theargument is that the contract wasnottoreveal theidentity ofthe plaintiffs, that no exceptions wereexpressed andnone should be implied.

A contract thataMinister orother officer wouldnotreveal identity toacourt would be incompatible withtheadministration of justice. Acontract that aMinister orother officer wouldnotreveal identity tothe Senate orHouse ofRepresentatives, would be incompatiblewithresponsible government. If thecontract had expressly purported tobind theCommonwealth andthedefendants not toreveal identity in thosecircumstances, itwould be invalid.

Equally thecontract would be invalidifit purported tobind the Commonwealth andtheMinisters not toreveal theidentities ofthe plaintiffs evenifthis were necessary forthe proper execution ofthe criminal lawofthe Commonwealth or oftheStates. Tomaintain its validity itmust be read asnot extending tothose circumstances: see Smorgon v. Australia & New Zealand Banking GroupLtd. (14); Ansett Transport Industries (Operations) Pty.Ltd. v. TheCommon­ wealth (15). It would be incongruous tohold that the revelation of identity toacourt oraHouse ofParliament wasabreach of contract (presumably entitlingtheplaintiffs tosue fordamages, even nominal damages).

Claim of national security.

Certain lawshave beenenacted by theAustralian andVictorian Parliaments toprotect theplaintiffs frompublication of their identities. TheGovernment assertsthat in thesecircumstances the national securitywouldnot be adversely affected by anexecutive H.C.OFA. 1984.'--y--' A.1'. HAYDEN.

Murphy J. (14) (1976) 134C.L.R. 475, at pp. 488-489. (15) (1977)139C.L.R. 54, at pp. 72,86-87. 564 HIGH COURT[1984. H.C.OFA. 1984.'-.,---' A.l". HAYDEN.

Murphy J. disclosure.Theplaintiffs contendthatdespite thatassertion ofthe executive government, theCourt should holdthatthenational security willbeaffected. Suchanassertion cannotprevail. Where the executive government through its Ministerassertsthatthe national security will be adversely affected by somedisclosure in or out ofcourt, andaparty contends otherwise (or thatanysuch effect is outweighed by other considerations suchasthe attainment of justice), thecourt mayinquire andifnecessary balancethe competing considerations. Butwhere theexecutive disclaimsan adverse effectonnational security itis difficulttoimagine howa court could properly entertain theclaim by another. Counselforthe plaintiffs whenpressed could net refertoany precedent inthis country orelsewhere whereacourt hasupheld aclaim based on national securityconsiderations whichweredisclaimed bythe Government whichwasresponsible fornational security.

The questions in thestated casesshould beanswered asfollows:

In actions Nos.

M.l 0 Iand M.l 03 of 1983 - 1.No.2. (a) Unnecessary toanswer in light of the answer toquestion I,but if the Court weretoanswer "Yes"inquestion I,"Yes".

(b) Unnecessary toanswer in light ofthe answer toquestion I,but if the Court weretoanswer "Yes" in question I,"No". 3. There isno such enforceable duty. 4. No.5. No.

In action No.M.I02 of1983 - I.No.2. (a) Unnecessary to answer in light ofthe answer toquestion I,but ifthe Court wereto answer "Yes" in question I,"Yes". (b) Unnecessary toanswer in light ofthe answer toquestion I,but ifthe Court weretoanswer "Yes" in question I,"No". 3. There is no such enforceable duty. 4. NO.5.No.

In action No.M.I04 of1983 - I.No.2. (a) Unnecessary to answer in light ofthe answer toquestion I,but ifthe Court wereto answer "Yes" in question I,"Yes". (b) Unnecessary toanswer in light ofthe answer to question I,but ifthe Court weretoanswer "Yes" in question I,"No". 3. There is no such enforceable duty. 4. Unnecessary toanswer in light ofthe answer toquestion 3. 5. Unnecessary toanswer. 6. No.7. No.

In action No.M.I05 of1983 -I.Not applicable. 2. Not applicable. 3. There isno such enforceable duty. 4. No.5. No. WILSON AND DAWSON 11. Theidentity ofthe plaintiffs in these five actions hasnot been disclosed. Theywereallparticipants, in one way oranother, in atraining exercise carriedoutbythe Australian SecretIntelligence Service("ASIS") at theSheraton Hotel inMelbourne on 30 November1983.Inthe exercise the plaintiffs described as H., I.and J., respectively, playedtheparts ofa 156C.L.R.] OF AUSTRALIA.

565 hostage and of two men whowere detaining himinalocked room on the tenth floor of thehotel. Ateam comprising A., B., c., D.,E. and G.("the team") wasrequired to rescue thehostage. F. was generally incharge of the operation andK.was stationed in the foyer of the hotel toobserve thereaction, ifany, of other persons in the hotel tothe conduct of theexercise. It should beexplained that A., 8., c., D., E. and G.were allcivilians who had undertaken part­ time employment withtheCommonwealth between 11 November 1983 and 30 November 1983forthe purpose ofbeing trained by ASIS. F.was at all material timesemployed bythe Commonwealth in work forASIS. Hewas responsible forthe recruitment and training of the team_ H., I.and J.wereeachemployed asofficers of ASIS pursuant toacontract of employment withtheCommon­ wealth. K.was amember of the Australian RegularArmywhowas given, with other members of theArmy, theduty of providing training supportfor AS IS personnel.

The team wassupplied withfirearms and blank ammunition by an ASISofficer. Asledge-hammer forpossible useinthe exercise was purchased bythem withtheapproval of the officer.

In the course ofthe exercise, one of themembers of the team accompanied byfour other members usedthesledge-hammer to break openadoor tothe room onthe tenth floor of thehotel in which thehostage washeld. When themanager of the hotel went to investigate, hewas metbyamember of the team wearing amask.

Together theyentered theliftfrom which the manager hademerged.

They jostled oneanother untiltheliftarrived at the ground floor, the team member tellingthemanager that nobody wouldbehurt.

Subsequently, agroup of the participants inthe exercise, most of whomwerewearing masks,emerged fromthehotel lift at ground floor levelandmade theirwaythrough thehotel pastguests and staff toawaiting car.They carried firearms, including apistol and two sub-machine guns. The motorcar,driven byanother partici­ pant, drove offbut was subsequently stoppedbymembers ofthe Victorian police force_ Thefour occupants ofthe motor carwere aprehended and subsequently anotherparticipant wasquestioned by the police. During theconduct ofthe exercise, K.remained inthe foyer of the hotel and knew nothing of theevents whichwere occurring inthe liftoron the tenth floor. The Deputy Commissioner (Operations) of theVictoria Policehas deposed that he believes anumber ofbreaches ofthe criminal law of Victoria werecommitted inthe course of theexercise and that itis essential that heidentifies theparticipants inorder toproperly investigate whetheranycrimes werecommitted, and,ifso, to apprehend theoffenders and tobring charges againstthem.On 15 H.C.OFA. 1984.'---v-'A.,.. HAYDEl".

Wilson J. Dawson J. 566 HIGH COURT[1984. H.C.OFA. 1984.'--,--' A.1', HAYDE".

Wilson J. Dawson J. December 1983theplaintiffs instituted theseactions claiming, inter alia, permanent andinterlocutory injunctionstorestrain thedefend­ ants (theCommonwealth) fromdisclosing toany person any information touchingtheidentity ofthe plaintiffs. Interim'orders substantially to that effectweremade andremain inforce pending the determination ofthe actions. Thereafter, ineach action, Dawson J., pursuant to s. 18 ofthe Judiciary Act 1903 (Cth), asamended, stated acase andreserved certainquestions oflaw forthe consideration of the Court.

The cases stated ineach of actions Nos.M.I0 Iof1983, M.W3 of 19!:i3 and M.W5 of 1983 areidentical. Thefirst ofthese deals with the plaintiffs A., B., c., D.and E.,the second withtheplaintiff G.

and thethird withtheplaintiff K.The case outlines thefunctions of ASIS andrefers tothe special project todevelop what isdescribed as "covert actioncapability" of whichthetraining exercise at the Sheraton Hotelformed part. It is necessary toset out several paragraphs of the case, which readasfollows:

"12. During acourse of instruction in ASIS procedures, structure andorganization, K.was advised byan ASIS officer that hisidentity, wouldbekept confidential andinparticular, except in so far as might be necessary forthe conduct of the functions ofASIS, therewould not be disclosed toany person: (a) the name, address, occupation or anyother particular identifying or likely toidentify himasaperson whohasworked for ASIS; (b) any act or thing donebyhim inthe course ofhis training or work forASIS. 13. It was aterm ofeach ofA., B., c., D., E. and G.'s contract ofemployment withtheCommonwealth thathis identity would be keptconfidential, andinparticular, except in so farasmight benecessary forthe conduct ofthe functions of ASIS, therewould not be disclosed toany person: (a) thename, address, occupation or anyother particular identifying orlikely to identify him as aperson whohasworked forASIS; (b) any act or thing donebyhim in the course of histraining orwork for ASIS. 14. The proposed disclosures hereinafter referredtoare not necessary forthe conduct of the functions ofASIS. 19. On 30November, at the Sheraton Hotel,Melbourne, each of A., B., c., D., E.,F.,G., the plaintiffs identified asH., I., J.in action No.M.I04 of 1983 andK.atthe direction of the Commonwealth participated in theexercise .... 22. At the commencement ofthe exercise, theteam was given Commonwealth exercisecardsbyASIS personnel. These cards statethatthebearer ison aCommonwealth exercise.The team wasinstructed by AS IS personneltoshow thesecards should theybequestioned astotheir activities duringthe exercise. 156 C.L.R.] OF AUSTRALIA.567 31. Advice hasbeen given tothe Commonwealth thatthe disclosure of the participants' nameswould be prejudicial tothe national andinternational securityofAustralia. Thisadvice was given by ASIS priortothe orders made by thisHonourable Court on 15 December 1983and by theDepartment ofForeign Affairs priortothe coming intoforce ofthe Judiciary Amendment Act 1984. 33. The Chief Commissioner hasagreed totake anymeasures necessary topreserve theconfidentiality of the identity of the participants sofar aspracticable todo so in the conduct ofhis investigation ofbreaches of the criminal lawalleged tohave arisen out of the exercise andinthe conduct of any prosecution arising out of such investigation.

34. (a) The maintenance byASIS of anability effectively to discharge itsfunctions is ofgreat importance tothe national security ofAustralia; (b) inorder effectively todischarge its functions ASISrequires torecruit andtrain suitable personsto work onitsbehalf; (c) for the purpose both of training new recruits andmaintaining thecapability ofexisting officersASIS requires fromtime to timetoconduct trainingexercises; (d) further, in orderproperly andefficiently todischarge its functions, ASISrequires tomaintain contactandliaison with and thegoodwill andco-operation of: (i) similarorganizations in someforeign countries; (ii) officers andagents involved in gathering intelligence in foreigncountries; (e) forthe achieve­ ment of its objects and purposes, it isgenerallynecessary that ASIS, and the Commonwealth by itsservants andagents, ensure and be seen by any person concerned toenquire or investigate toensure, that the identity of each of A., B., c., D., E., G. and K. be kept confidential and in particular,except in sofar asmight benecessary forthe conduct of thefunctions of ASIS, that there benot disclosed toany person: (i) thename, address, occupation andanyother particular identifying or likely to identify himasaperson whohasworked forASIS; (ii) any actorthing doneby him inthe course of hiswork for ASIS; (g) the disclosure toforeign intelligence services of the identity of A., B., c., D., E.,G.and K.would beprejudicial to the international andnational security of Australia; ... (i) ifthe names ofA., B., c., D., E.,G.and K.were made public, this would beprejudicial tothe national andinternational security of Australia; ... 36. At allmaterial timeseach of A., B., c., D.,E.,G.and K. held anhonest beliefthat: (a) ASISwasanimportant branch of theAustralian Goverment; (b) anythinghewas instructed or authorized todo byASIS hadtheauthority ofthe Australian Government; (c) he was authorized tocarry weapons inthe hotel and other places andtobreak down thedoor of the hotel room inwhich thehostage washeld ifthis was necessary to carry out the exercise successfully; (d) theplan of the partici· pants' teamleader hadbeen approved. Thisplanwasthat one H.C.OFA. 1984.'--,,-'A.v. HAYDP'.

WilsonJ.

Dawson J. 568 HIGH COURT[1984. H.C.OF A. 1984.'---,---' A.\'. HAYDEl<.

Wilson J. Dawson J. participantwoulddressasawaiter andaskthat thedoor tothe suite in which thehostage washeld beopened sothat hecould obtain asignature toaparcel delivery. If thesubterfuge plan failed, theparticipants would break thelock onthe door by force.

40. The firstdefendant, thefourth defendant andthe Commonwealth: (a) do not rely upon anymatter ofnational security asinhibiting or preventing thedisclosure ofthe names of the participants tothe Chief Commissioner; (b) allege that the disclosure ofthe name[s] ofthe participants wouldnot prejudice thenational securityofAustralia. 41. The firstdefendant, thefourth defendant andthe Commonwealth desiretocomply withtherequest ofthe Chief Commissioner todisclose thenames ofthe participants tohim the disclosure ofwhich healleges willenable himtoinvestigate alleged breaches ofthe criminal law,toapprehend offenders and tobring charges againstthem." Each casethen concludes withthefollowing questions: "1. Wouldthedisclosure by the defendants tothe Chief Commissioner ofPolice ofthe State ofVictoria ofthe name of each ofthe plaintiffs identified as A., B., c., D., E. and G.asa participant in the exercise amounttoabreach ofthe term of the agreement referredto in par. 13 above('theterm'). 2. Is theterm: (a) unenforceable in sofar as itpurports to prevent thedefendants fromdisclosing tothe Chief Com­ missioner thename ofeach ofthe said plaintiffs? (b) enforceable in viewofthe national interest in maintaining security? 3. Do the circumstances give rise toaduty owed by the Commonwealth toeach of A., B., C.,D.,E.,G.and K. totreat as confidential informationand in particular,except in sofar as necessary tocarry out the functions of ASIS, nottodisclose to any person: (a) thename, address, occupation orany other particular identifying orlikely toidentify himasaperson who has worked forASIS; (b) any actorthing done by him in the course ofhis work forASIS: notwithstanding thatsuch aduty prevents thedefendants fromdisclosing tothe Chief Com­ missioner thenames ofthe participants in theexercise? 4. Does theanswer toany ofthe above questions depend upon thejudicial determination ofthe allegations orany and which ofthem contained in pars.37,38, 39 and 40hereof? 5. Are theplaintiffs identified asA., B., C., D., E.,G.and K. entitled toapermanent injunction in theterms ofthe order made herein on 15 December 1983or in anyandwhat like terms?" The plaintiff in action No.M.I02 of1983 isF.The case stated in thisaction repeats in relation toF.material which isfor all practical purposes identicaltothe facts which havebeenextracted fromthe other cases. Italsodevelops in some greater detailthefacts relating 156C.L.R.] OF AUSTRALIA. 569 to the planning of the exercise and matters relating to national and international security. Itisunnecessary to refer to that material. The caseconcludes withaset of questions relating to F.which forall practical purposes are identical to thoserelating toA., B., c., D., E., G. and K. The plaintiffs inaction No.M.104 of1983 areH., I., and J.In this action thecase describes insome detail theincidents of the contract of employment betweenthe Commonwealth and each of the plaintiffs. With respecttoeach plaintiff thecontract included a term (set out inpar. 17 of the case) asto the confidentiality of the identity of the employee which isidentical to that whichhasalready been setout. The case includes materialwhichcorresponds tothe facts set out earlier inthis judgment inparagraphs numbered14, 19, 31, 33, 34, 40(a) and 41. The paragraphwhichcorresponds to par. 34includes an additional sub-paragraph identifiedas (f), which reads asfollows: "(f) In order to facilitate (c) above, ASISrequests trainingin specific skillsfrom thearmy and the army provides that training;" The caseconcludes bysetting out seven questions forthe consider­ ation of the Court. Questions numbered 1,2, 3,6 and 7correspond precisely with the questions numbered 1,2,3,4 and 5in each ofthe other cases. Questions 4 and 5are asfollows: "4. Do the facts stated inpars. II, 13 and 15 lead to the implication of either of the terms alleged bythe said plaintiffs in par. 19.

5. If yes toquestion 4above: (a) is each of the terms unenforceable inso far asitpurports to prevent thedefendants from disclosing to the Chief Commissioner thename of each of the saidplaintiffs?; (b) iseach of such terms enforceable inview of national interests inmaintaining security." The factsstated inpars. I], 13 and ] 5 refer toH., I. and J.

respectively and detail aspects of the contract of employment of each of them. That information is relevant tomatters of national security and the Court has ordered that it not bedisclosed.

Paragraph 19 details an alleged implied termofconfidentiality applicable specifically to theSheraton Hotelincident. It is now possible to turn to theissues. Thoseissues are clearly drawn between the parties and wedonot think itwill benecessary to distinguish betweentheplaintiffs, notwithstanding that inthe case of K. there isno contractual term astothe confidentiality of his identity.

In the first place, the Commonwealth contends that the term of the contract of each of the plaintiffs exceptK.should beconstrued H.C.OFA. 1984.'-.".-'A.1'. HAYDEN.

Wilson J. Dawson J. 570HIGH COURT [1984. H.C.OFA.1984.'----,----' A."­ HAYDEN.

Wilson J. Dawson J. ascreating aqualified obligation of confidentiality whichdoesnot prevent theCommonwealth fromdisclosing theidentity of the plaintiffs tothe Victorian PoliceCommissioner inorder that he might investigate allegedbreaches of thecriminal law. The learned Solicitor-General argues that theparties should notbepresumed to have intended tocreate an absolute obligation of confidentiality which mightconflict withthepublic duty of theCommonwealth to protect thecommunity againstcrime or confer an immunity from the criminal law.Wedo not think that theargument shouldbe accepted. The term of the contract is expressed plainly and emphatically. Subjecttothe interests of ASIS theCommonwealth assures theplaintiffs of itscomplete loyaltyinmaintaining the confidentiality described.

Of course,theterm, like any other contractual term, is subjecttothe operation of the general law: Parry-Jones v. LawSociety (16); Smorgon v. Australia & New Zealand Banking GroupLtd. (17). Saveforthe considerations of public policy towhich wewill turn, there isnorelevant operation of thegeneral lawtooverride thecontractual terminthe present cases.

The Commonwealth isundernolegal duty tomake thedisclosures which itdesires to make. Nevertheless, it is submitted that the parties should betaken tohave intended theterm to have no application tocircumstances suchasthe present. To our minds,the circumstances pointthe other way.They werehighly unusual circumstances. Theplaintiffs wereparticipants in an exercise undertaken at the direction of theCommonwealth inthe course of training todevelop acovert operational capabilityforclandestine work overseas. Theywererequired todevelop physical and intellec­ tual skills which exhibited aggression and ruthlessefficiency. They were described fromtheBar table, without demur,as"young men, apparently highlymotivated, whowere inthe course of atraining exercise toprepare themselves fortasks indefence of this country at great risktotheir own lives". Of course, itwas notcontemplated that their training inAustralia wouldrequire themtocommit criminal offences. The plaintiffs allege that theyhave notdone so and it is notsaid inthe case that they have. Theysay that they believed, and itisnot denied that they so believed, that allnecessary ad vices hadbeen given and authorities obtainedtoensure that the exercise could be carried out without thecommission of any offences. Furthermore, when consideration isgiventothe facts in the stated casesconcerning therequirements of national security there isevery reason toconclude that the plaintiffs understood itto (16) [1969]1 Ch.l,atp. 9. (17) (1976) 134 C.L.R.475. at p.488. 156 C.L.R.] OF AUSTRALIA. 571 be thefact andthat itwas theintention ofthe parties thatthe confidentiality oftheir association withASIS would be jealously safeguarded by the Commonwealth.

The alternative submission ofthe Commonwealth is that, accepting theintention ofthe parties to be as we haveexpressed it, nevertheless theCourt will not lend itsaid tothe enforcement ofthe Commonwealth's obligationofconfidentiality becausetodo so would be contrary topublic policy. Itisaccepted thattheunderlying principle isthat expressed by Isaacs J.in Wilkinson v.Osborne (18): "In my opinion the'public policy'whichaCourt isentitled to apply as a test ofvalidity toacontract isin relation tosome definite andgoverning principlewhichthecommunity as a whole hasalready adopted eitherformally by lawortacitly by itsgeneral courseofcorporate life,and which theCourts ofthe country cantherefore recognize andenforce. TheCourt isnota legislator: it cannot initiate theprinciple; itcan only state or formulate itifit already exists.

The ruleoflaw as tocontracts againstpublicpolicy is constant - namely, thatevery bargain contrary to sucha social governing principle isregarded as prejudicial tothe State, or, inother words, contrary to'public policy', or, as it is sometimes called,'policy ofthe law', andtheState by its tribunals refusestoenforce it." And Isaacs J.continued (19): "The Courts refuseto give effecttosuch abargain, notfor the sake ofthe defendant, nottoprotect anyinterest ofhis ­ indeed, they do notfailtonotice thathisfailure toabide by his agreement sometimesaddsdishonesty toillegality - but they refuse toenforce thebargain forthe sake ofthe community, who would be prejudiced ifsuch abargain werecountenanced." Interference withtheadministration ofjustice haslong been recognized asahead ofpublic policytowhich thecourts will have regard whenasked toenforce acontract. In Collins v.Blantern (20), Wilmot L.C.J.saidofacontract to stifle aprosecution forperjury:

"This isa contract totempt aman totransgress thelaw, to do that which is injurious tothe community: it is void by the common law; and thereason whythecommon law says such contracts arevoid, is forthe public good.Youshall not stipulate foriniquity. All writers uponour law agree in this,no polluted handshalltouch thepure fountains ofjustice." In Gartside v. Outram (21), Wood V.c. held thatconfidential H.C.OFA. 1984.'---,.---'A.1'. HAYDEl'.

Wilson J. Dawson J. (18) (1915) 21 C.L.R. 89, atp.97. (19) (1915) 21 C.L.R., atp.98. (20) (1767)2Wils. K.B.347, at p.350 [95 E.R.850, at p.852J. (21) (1856) 26 L.J. Ch.113. 572 HIGH COURT [1984. H,C.OFA. 1984.'---y--' A.

". HAYDEl<, Wilson J. Dawson 1. communicationsinvolvingfraudwere not privileged fromdisclos­ ure. The Vice·Chancellor said (22): "The truedoctrine is, that there is noconfidence as to the disclosure of iniquity. You cannot make methe confidant of a crime orfraud, and be entitled toclose upmy lips upon any secret which youhave theaudacity todisclose tome relating toany fraudulent intention on yourpart:suchaconfidence cannot exist." Each of these cases wasconcerned withactual crime or fraud.Butin Egerton v. Brownlow (Earl) (23), Lord Lyndhurst stated theprin­ cipl~ inbroader terms:

"It is admitted, that any contract or engagement havinga tendency, howeverslight,toaffect theadministration ofjustice, isillegal and void." In Howard v. Odhams PressLtd. (24), the Court of Appeal refused to enforce acontract whichwould haveprevented thedefendants from giving information tothird parties whichmightassistthemto secure theconviction of persons whohaddefrauded theminthe past or toprevent thecommission of frauds against them in thefuture.

Slesser L.J.said (25): "It may besaid that the particular facts on whichthis agreement issaid tobe illegal arenot those precisely of stifling a prosecution or compounding acrime; buttheagreement would in myopinion havethenecessary effect of restricting the opportunity whichthedefendants and others mightotherwise possess to assist theauthorities inthe investigation of,and, if necessary, in the prosecution ofthe alleged crimes." In Initial Services Ltd. v. Putterill (26) the Court of Appealcameto a similar conclusion, holding that theexceptions tothe implied obligation ofaservant nottodisclose information or documents received inconfidence extendedtoany misconduct of such anature that it ought inthe public interest tobe disclosed toone who hada proper interest to receive it. The misconduct inquestion inthat case centred onconduct alleged to becontrary toprovisions of the Restrictive TradePractices Act 1956U.K. and misrepresentation in relation thereto. LordDenning M.R.referred to the decision of the Court of Appealin Weld-Blundell v.Stephens (27), saying (28): "In Weld-Blundell v. Stephens (29), Bankes LJ. rather suggested that the exception [that is, theexception to an obligation of confidentiality] is limitedtothe proposed or (22) (1856) 26 L.J. Ch., atp. 114. (23) (1853) 4 H.L.e. I,at p. 163 110 E.R. 359, atp.424). (24) [1938] 1K.B. I. (25) [1938]1 K.B., atpp. 30-31. (26) [1968]1 Q.B.396. (27) 11919) IK.B. 520(affd. [1920]A.c. 956). (28) [1968]1 Q.B.,at p.405. (29) [1919] 1K.B ..atp,527, 156 C.L.R.] OF AUSTRALIA. 573 contemplatedcommission of acrime oracivil wrong. ButI should havethought thatwastoolimited. Theexception should extend tocrimes, fraudsandmisdeeds, boththose actually committed aswell asthose incontemplation, providedalways - and this isessential - that thedisclosure isjustified inthe public interest. The reason is because 'noprivate obligations can dispense with that universal onewhich lies onevery member of the society todiscover everydesign whichmay be formed, contrary tothe laws of the society, todestroy the public welfare': see Annesley v.Anglesea (Earf) (30)." Weld·Blundeff v. Stephens wasacase where theduty to maintain confidentiality wasnotexcluded wheretheconsequence ofdisclos­ ure was theexposure of acivil wrong which had beencommitted.

The decision of theCourt of Appeal in InitialServices Ltd. v. PutteriII wasreferred towith apparent approvalin BritishSteel Corporation v. Granada Television Ltd. (31) by LordWilberforce and by Lord Fraser of Tullybelton (32). It isunnecessary toexplore all the circumstances inwhich theenforcement ofaduty of confidentiality mayleadtoaperversion ofthe administration of justice and soinjure thepublic welfare. For anextensive reviewof the cases, seethe judgment ofSheppard J. in AIIied MillsIndustries Pty. Ltd. v. Trade Practices Commission (33). The relevantcircumstances of the presentcasesarethat although the Commonwealth isunder nolegal duty todisclose thenames of the plaintiffs tothe Victorian ChiefCommissioner, itdesires todo so and thedisclosure of the names willassist theCommissioner inhis investigation ofcriminal offences whichhebelieves tohave been committed. The question is whether thepublic interest inthe administration of justice precludes theCourt inthe exercise ofits equitable jurisdiction fromrestraining thatdisclosure. It isno doubt true,asMr. Strahan of counsel appearing forthe plaintiff G.submitted, thatthere is apublic interest inthe enforcement ofcontractual rightswhich mustbeoverborne by a greater publicinterest beforeinjunctive reliefshould bedenied. He argued that in the present casesthestrength ofthe public interest in the administration ofjustice wasdiminished by anumber offactors, namely, thepositive beliefofall the plaintiffs thatthey hadnot engaged inany unlawful. conduct,theabsence ofany specific allegation againstanyofthe plaintiffs, andtheabsence ofserious consequences flowingfromtheexercise. Be that asitmay, the conclusion is inescapable that there wasanapparently serious H.C.OFA. 1984.'--r--'A.l'. HAYDEl".

WilsonJ.Dawson J. (30) (1743) 17StateTr.1139, at p. 1230(Howell), referredto inL.R. 50.8. 317n. (31) [1981jA.C.1096. at p. 1169. (32) [1981]A.c..atp. 1201. (33) (1981) 55 F.L.R., at pp.149· 166; 34 A.L.R., at pp. 126­ 141. 574 HIGH COURT [1984. H.C. OFA. 1984.'-,-' A.v. HAYDEl'.

Wilson J. Dawson J. breachofthe peace, therewaswhat appeared to be anact causing wilful damage toproperty andanumber ofmasked menwere seen in public carrying sub-machine guns.Moreover, theDeputy Com­ missioner ofPolice hassworn anaffidavit in which hedeposes tohis belief thattheparticipants committedbreachesofthe criminal law and that he must know theidentity ofthe participants if he is to carry outaproper investigation. It follows thatwhile theremay be caseswhere thetriviality ofthe alleged breaches of thecriminal law will notlead acourt towithhold relief by wayofinjunction to restrain athreatened breachofaduty ofconfidentiality sucha submission cannotsucceed inthis case.

In our view, therefore, leavingasideforthe moment any consideration ofthe question ofnational security, theonly con­ clusion that isopen in thepresent cases isthatifthe Court wasto grant theplaintiffs thepermanent injunctions whichtheyseek it would be elevating theirprivate righttoconfidentiality abovethe interest ofthe community inthe efficient investigation ofalleged breaches ofthe law. TheCommonwealth seekstoadvance that interest, yettheinjunctions wouldprevent it fromdoing so.The administration ofjustice, andinparticular theenforcement ofthe criminal law,must always rankhighly inany assessment ofthe public interest.

As Lord Simon ofGlaisdale saidinD. v.National Society for the Prevention of Cruelty toChildren (34): "Thus it is clearthattheadministration ofjustice is a fundamental publicinterest. But itisalsoclear thatit isnotan exclusive publicinterest. It is anaspect (a crucially important one) ofabroader publicinterest in themaintenance ofsocial peace andorder." In coming tothe conclusion thattheinjunctions shouldnot be granted we donot draw anydistinction betweentheplaintiffs. The considerations andtheresult must be thesame whether theduty of confidentiality arisesfromaterm ofthe contract ofemployment or from theoperation ofprinciples of equity onthe nature of the relationship. Indeed,theconclusion must be afortiori in the case of a threatened breachofan equitable righttoconfidence.

However, theplaintiffs nextinvoke considerations of national security tosupport theirclaim. AsLord Simon ofGlaisdale saidin the passage we have justcited, theadministration ofjustice, important though it is, mayonoccasions havetogive way toan even more compelling publicinterest. Inaproper case,national (34) (1978] A.C.171, atp.231. 156C.L.R.] OF AUSTRALIA. 575 security maywellsatisfy thatdescription: Alister v. TheQueen (35). The plaintiffs rely in particular onthe agreed factscontained in the stated cases,fromwhich we haveset out extracts earlierinthese reasons, contained inpars. 31 and 34. Those paragraphs showthat the original advicegiven by ASIStothe Commonwealth wasthat the disclosure of the names ofthe participants wouldbeprejudicial to the national andinternational securityofAustralia, thatforthe achievement ofits objects andpurposes it isgenerally necessary that ASIS andtheCommonwealth ensurethattheidentity ofthe plaintiffs bekept confidential, thatthedisclosure toforeign intelli­ gence services of theidentity of the plaintiffs wouldbeprejudicial to the international andnational securityofAustralia and that ifthe names ofthe plaintiffs weremade public thiswould be prejudicial to the national andinternational securityofAustralia. Armedwiththe agreement ofthe Commonwealth onthose significant matters,the plaintiffs arguethatanymatter ofpublic policyderived fromthe public interest inthe efficient administration ofthe criminal law must giveway.

However, theCommonwealth arguesprimarily thatanyquestion of national security is whollyirrelevant tothe plaintiffs' claim.In the alternative, whileitadmits thetruth ofthe matters towhich we have adverted itasserts thatasmatters nowstand thedisclosure of the names ofthe participants tothe Victorian ChiefCommissioner of Police would notprejudice thenational securityofAustralia. The significance ofthe phrase "asmatters nowstand" is three-fold. In the first place, the Chief Commissioner hasgiven anundertaking as described in par. 33 in the cases fromwhich extracts havebeenset out earlier in these reasons. Inthe second place,theVictorian Parliament hasenacted the Criminal Proceedings Act 1984(Vict.) specifically toempower thecourts ofthat State tomake certain orders forconfidentiality in relation tocriminal proceedings arising out of the Sheraton Hotelincident. Inthe third place, the Commonwealth Parliamenthasenacted the Judiciary Amendment Act 1984(Cth), theresult ofwhich is to give effect throughout Australia toany orders toensure confidentiality madepursuant to the Victorian Act.Inimroducing intotheSenate the Bill forthe Judiciary Amendment Act 1984 theAttorney-General concluded his second reading speechwiththefollowing statement:

"The amendments containedinthis Bill will enable the criminal lawofVictoria totake itsdue course, butatthe same time will provide aprocedure designedtoensure thatthe (35) (1984) 154C.L.R. 404, atp.436. H.C.OFA. 1984.'-.--'A.I'. HAYDEl<.

Wilson 1. Dawson 1. 576 HIGH COURT [1984. H.C.oFA.1984.~A.,'. HAYDES.

Wilson'J,Dawson J. national or internationalsecurity of Australia, or thephysical safety of persons isnot prejudiced inthe process." The Commonwealth deniesthatthere is anyinconsistency between itspresent standwithrespect tonational security and the facts outlined inthe stated cases. It is asserted that theoriginal advice which is set out in par. 31 has been overtaken bythe legislative schemewhichhasbeen put in place in Victoria and throughout theCommonwealth andbythe undertaking of theChief Commissioner asto the confidentiality of any investigations priorto the institution of proceedings. It remains truetosay, as is said in par. 34(e), (g) and (i), that itisgenerally necessary that ASIS and the Commonwealth ensure that theidentity of the participants bekept confidential and that the disclosure toforeign intelligence services of theiridentity wouldbeprejudicial tothe national and international security of Australia aswould bethe case iftheir names weremade public. Presumably thegovernment of theCommonwealth is satisfied, asalso is the Parliament, that disclosure of thenames of theparticipants tothe Chief Commissioner and theconduct of any criminal proceedings willnotlead totheir identity becoming known either toforeign intelligence services or tothe public. If itwere open tothe Court toconduct asitwere abalancing exercise between competing principles of publicpolicy - asthe plaintiffs urge us todo - itmay bedifficult forthe Court to reject the present view of theCommonwealth. It is true, as isargued for the plaintiffs, that national securitymaybeinvoked byaprivate litigant asareason forthe court to refrain fromallowing the production of adocument or oral evidence. It is theduty of the court and not theprivilege of theexecutive government todecide whether evidence willbeadmitted: Sankey v. Whit/am (36). How­ ever, theconsidered opinion of theresponsible minister or govern­ ment on aquestion of public interest immunity willalways carry great weight, This is particularly so where questions of national security areinvolved. The consequence of adecision of acourt on a matter of national securitywhich iscontrary tothe considered view of the government could be veryserious indeed. On theother hand, that may not bethe case in the present matters where it is the plaintiffs rather than theCommonwealth whoareasking the Court toensure the continued confidentiality of theidentity of the plaintiffs. Suchacourse could in noway beseen tothreaten national security. Indeed,ifthe scepticism of thecounsel appearing for the plaintiffs astothe efficacy of the legislative scheme or of the (36) (l978}142C.L.R. I, atpp. 38-45,68-69. 156 C.L.R.] OFAUSTRALIA. 577 undertaking ofthe Chief Commissioner inpreserving frompublic knowledge orfrom theknowledge offoreign intelligence services were tobe shared by the Court -asitcould well be - then notwithstanding theview ofthe Commonwealth thebalancing exercise couldresult inthe public interest inthe administration of justice givingwaytothe higher publicinterest inthe preservation of national security. Inthat event theinjunctions toensure continued confidentiality wouldbegranted.

This discussion is predicated uponthepremise thatit isopen to the Court todetermine whichofthe two competing interestsshould prevail. Butthetruth isthat questions ofnational orinternational security donot arise inthese actions, whicharebrought by the plaintiffs forpermanent injunctions toenforce theircontractual or equitable rights. In substance, eachplaintiff issuing insupport ofa personal right,namely, aright tohave hisidentity keptconfidential, the threatened denial of whichhealleges will cause himloss, damage, embarrassment andridicule. He is notsuing, andhas no standing tosue, indefence ofsecurity. TheCommonwealth doesnot raise thequestion ofsecurity inthese actions and,although the intention ofthe Commonwealth in these cases hasbeen made known, thatquestion cannotariseuntil it is firstdetermined whether theCommonwealth isotherwise precludedfromdivulging the plaintiffs' identities. Inother words, it is notuntil it isknown whether theplaintiffs areentitled totheir injunctions thatany question ofsecurity arises. If theinjunctions arerefused, it isforthe Commonwealth thentoconsider ',,,hether itisin the public interest to keep allorany ofthe plaintiffs' identitiesconfidential orto disclose them. The refusalofthe injunctions doesnotcompel the Commonwealth to take onecourse orthe other. Considerations of national andinternational securitydonot compete withthe principles whichgovern theenforceability ofthe plaintiffs' contracts or any equitable obligation ofconfidence. Thoseconsiderations arise as aseparate andsubsequent matter.There is noinconsistency in saying that as amatter of public policytheCourt will not enforce an obligation tokeep theplaintiffs' identitiesconfidential becausethat obligation hasatendency tointerfere withtheadministration of justice, whilst at thesame timerecognizing thatwhether ornot a plaintiffs identityultimately remainsconfidential will dependupon the decision ofthe Commonwealth inthe exercise ofachoice which is opentoitand which will be made withthepublic interest in national andinternational securityinmind. That being so,the conclusion followsthattheplaintiffs' attempt to enforce theCommonwealth's obligationtopreserve confidentiality mustfail.Inthe result, theresponsibility forthe H.C.OFA. 1984.'-r--'A.I'. HAYDE".

Wilson J. Dawson J. 578 HIGH COURT [1984. H.C.OFA. 1984.'--.-'A.L HAYDE".

Wilson J. Dawson J. preservationofAustralia's nationalandinternational securitymust lie squarely withtheCommonwealth Government, as ofcourse it should. We would answer thequestions inthe stated casesasfollows:

In actions Nos.M.I0 Iof1983, M.J02 of1983, M.J03 of 1983 and No. M.105 of1983 - I.Yes. 2. (a) Yes; (b) NO.3. There isno such enforceable duty. 4. No.5. No.

In action No.M.104 of1983 - I.Yes. 2. (a) Yes; (b) No. 3. There isnosuch enforceable duty. 4. Unnecessary toanswer in light ofthe answer toquestion 3. 5. Unnecessary toanswer. 6. No. 7. No.

BRENNAN J.In five actions brought inthe original jurisdiction of thisCourt, eleven plaintiffs seekorders restraining theMinister of State forForeign Affairs,theprevious Director-General ofthe Australian SecretIntelligence Service ("AS IS"),theActing Director­ General andtheCommonwealth of Australia fromdisclosing the plaintiffs' respective identities.Topreserve theiranonymity andto ensure thattheinstitution ofthe proceedings doesnotstrip itaway, the plaintiffs areidentified merelybythe letters A.to K. Conscious of the risk that the plaintiffs maylosetheanonymity theyseekto protect ifthe actions weretogo totrial, theparties ineach action have agreed uponthestating ofacase forthe opinion of the Full Court pursuant to s. 18 ofthe Judiciary Act 1903 (Cth). The cases are stated in similar terms;some of them in substantially thesame terms. Ishall quote thematerial partsofthe stated caseswithout distinguishing amongthemforIdo not apprehend thatthere isany significance inthe source ofthe quotations forthe determination of the questions oflaw reserved for our consideration.

The actions havetheirorigin in "a special project todevelop covert actioncapability", thatbeing acapability which"AS IS is required tomaintain ... for use inwartime orinother veryspecial situations". Whatevera"covert actioncapability" maybe,it"is maintained onacontingency basis".Anunderstanding ofthese dim and uncertain notions isnotnecessary. Whatwasdone todevelop the covert actioncapability isstated.

In June 1982thethen Minister ofState forForeign Affairsgave his approval tothe special project. ASIS"took stepstoimplement the project" inAugust 1982.

The plaintiff knownasF. "was asked by his superiors at AS IS tocommence theproject. Hewas responsible forthe recruitment andtraining ofpersons forthe project." A"very smallunitwasestablished withinASIStorecruit and train asmall group" who"were to be parttime agents who would cometogether forperiods of intensive trainingbutwould 156C.L.R.] OF AUSTRALIA. 579 otherwise pursuetheirnormal civilian occupations". Between II and 30 November1983,theplaintiffs A., 8., c., D.,E.and G.

temporarily lefttheir civilian employment "andwere involved ina training courseorganized by ASISaspart ofthe project". The plaintiff K.,amember of the Australian RegularArmy,"wasalso involved inthe conduct ofthe first part ofthe course". Thefinal phase of the training periodwasaparticular "exercise". Theeleven plaintiffs all"participated in the exercise" on 30 November 1983at the Sheraton Hotel in Melbourne.

The origin of theexercise isdescribed inthree ofthe stated cases in theseterms:

"Some of the participants ('theteam') hadearlier beentold by anofficer ofASIS thattheir jobduring theexercise wasto conduct surveillance onaman who, forthe purpose ofthe exercise washeld 'hostage' by two'guards'. Subsequently, the team wasadvised bythe said officer thatthey were required to effect therescue of theparticipant hostagefromaroom onthe tenth floor of thehotel where againforthe purpose ofthe exercise, he was being heldbythe two guards. Awritten instruction tothis effect wasgiven tothe participant team leader. Itrequired therescue tobe effected early in themorning of 30November 1983,usingtheminimum forcenecessary." The team hadbeen "supplied withfirearms andblank ammunition by an ASIS officer. Asledge-hammer forpossible use in theexercise was purchased by them withtheapproval ofthe said officer." In addition to "the team",therewerethose participants who played theroles ofhostage andguards. Oneofthe participants, the plaintiff K.,had therole of"providing adviceonany military aspects ofthe exercise" andheattended theSheraton Hotel "to adviseontactical procedures ifrequired". Hewas asked "to wait in thefoyer ofthe hotel andobserve ifthere wasany reaction from other persons in thehotel tothe course orconduct of the exercise".

This iswhat happened:

"In thecourse ofthe exercise, oneofthe participants ac­ companied byfour other participants usedasledge-hammer to break openadoor to the room onthe tenth floorofthe hotel in which theparticipant hostagewasheld. When themanager of the hotel wenttoinvestigate whatwashappening, hewas met by one ofthe participants wearingamask. Themanager and the participant enteredtheliftfrom which themanager had emerged. Theyjostled oneanother untiltheliftarrived atthe ground floor,theparticipant tellingthehotel manager that nobody would be hurt.Subsequently, agroup ofparticipants, most of whom werewearing partymasks, emerged fromthe hotel liftatground floorlevelandmade theirwaythrough the hotel pastguests andstaff to an awaiting car.They carried firearms, including apistol and two sub-machine guns.The H.C.OFA. 1984.'----,---' A.t', HAYDE:<.

Brennan J. 580 HIGH COURT [1984. H.C.OFA. 1984.'-,.---' A.... HAYDE".

Brennan J. motorcar,driven byanother participant, droveoffbut was subsequently stopped by membersof the VictoriaPoliceForce. The fouroccupants of themotor carwere apprehended and subsequently anotherparticipant involved in theincident at the hotel wasquestioned bythe police. During theconduct ofthe exercise, K.remained inthe foyer ofthe hotel and knew nothing ofthe events whichwereoccurring inthe lift or onthe tenth floor." It is notappropriate to comment upontheoffences whichare revealed orsuggested by this paragraph ofthe stated cases,much less toconsider whethertheplaintiffs orany ofthem arecriminally responsible forthose offences. Butit is entirely clear that neither ASIS northeMinister northeexecutive government couldconfer authority uponany of theplaintiffs tocommit anoffence or immunity fromprosecution for anoffence oncecommitted. The incapacity ofthe executive government to dispenseitsservants from obedience to laws made byParliament is the cornerstone ofa parliamentary democracy.Aprerogative to dispense fromthelaws was exercised bymediaeval kings,butitwas aprerogative "replete with absurdity, andmight beconverted tothe most dangerous purposes": Chitty, Prerogatives of theCrown (1820), p. 95.James II was thelast King toexercise theprerogative dispensingpower (see Holdsworth, AHistory of English Law, vol. vi, pp.217-225), and the reaction to hisdoing sofound expression in the Declaration of Right. Itwasthere declared that "thepretended powerofdispensing with laws, orthe execution oflaws, by regal authority, asithath been assumed andexercised oflate, isillegal". By the Bill of Rights the power to dispense fromanystatute wasabolished: 1Will. & Mar. 2 c. 2, s.XII.Whatever vestigeofthe dispensing powerthen remained, it is nomore. The principle, asexpressed inthe Act of Settlement, is that all officers andministers oughttoserve the Crown according tothe laws. It isexpressed moreappropriately for the present case by Griffith c.J. in Clough v.Leahy (37): "If anact isunlawful -forbidden bylaw - a person whodoes it can claim noprotection by saying that heacted under the authority of the Crown." This is no obsolete rule;theprinciple is fundamental to our law, though itseems sometimes to be forgotten whenexecutive govern­ ments or their agencies arefettered orfrustrated bylaws which affect thefulfilment oftheir policies. Then itseems desirable tothe courts "that sometimes people be remindedofthis and ofthe fate of James II,asScrutton L.J.reminded theLondon County Council" in (37) (1904) 2C.L.R. 139, atpp. 155-156. 156 CL.R.) OF AUSTRALIA. 581 R. Ii. LondonCountyCouncil; Ex parteEntertainments Protection Association (38): per Windeyer J. in CamandSons Pty.Ltd. Ii. Ramsay (39). It isdesirable tocall theprinciple tomind inthis case, forsome paragraphs includedinthe stated casescould be relevant tothe questions of law which ariseonly ifministers orthe senior officers of AS IS werecompetent toauthorize thedoing of unlawful acts.The cases statethattheMinister of State forForeign Affairs in June 1982 "gave his approval" tothe special project; hissuccessor in March 1983 "was advised of theexistence of the project and ofits objects andgave hisapproval". The case in F.'s action statesthaton 26 November 1983thethen Director-General ofASIS "was informed thatfirearms would be carried,butconcealed andhegave the exercise hisapproval. On30November 1983the[then Director· General) wasinformed ofaplan which waspresented tohim by the team leader. Thisplanwas that oneparticipant woulddress as a waiter and ask that thedoor tothe suite inwhich thehostage was held be opened sothat hecould obtain asignature toaparcel delivery.

If the subterfuge planfailed, theparticipants wouldbreak the lock onthe door by force. Withonereservation, "the useof force", thethen Director-General andF."approved theplan". The cases statethat at allmaterial timeseach of A., 8., C, D.,E.,G.and K. held anhonest beliefthat: "(a) AS IS wasanimportant branch of theAustralian Government; (b) anything hewas instructed orauthorized to do by ASIS hadtheauthority ofthe Australian Government; (c) hewas authorised tocarry weapons inthe hotel andother places andtobreak down thedoor of the hotel room inwhich the hostage washeld ifthis was necessary tocarry out the exercise successfully; (d) theplan of the participants' team leader hadbeen approved. Thisplanwasthat oneparticipant would dressasawaiter and ask that thedoor tothe suite in which thehostage washeld beopened sothat hecould obtain a signature toaparcel delivery.

If thesubterfuge planfailed, the participants wouldbreakthelockon thedoor by force." It isfurther stated:

"At thecommencement of theexercise, theteam wasgiven Commonwealth exercisecards by ASISpersonnel. Thesecards state thatthebearer ison a Commonwealth exercise. The team was instructed by ASIS personnel toshow thesecards should they be questioned as to theiractivities duringtheexercise." These partsofthe stated casesseemcalculated toraise, perhaps obliquely, theplea ofsuperior orderssometimes raised by military H.C.OFA. 1984.'---<-'A.I'. HAYDE".

Brennan J. (381 [1931]2K.B.215,atp.229. (39) (1960)104C.L.R. 247.atp.272. 582 H.C. OFA. 1984.'---.,-' A.v. HAYDEN.

Brennan 1. HIGH COURT[1984.

personnel: cf.O'Connor andFairall, Criminal Defences (1984), pp.136-138; Oppenheim s International Law, 7thed.(1967), pp. 568-572. It may bethat theASIS officers whoinduced the beliefs statedandwho issued the"exercise cards"regarded ASISasa para-military forceandencouraged theplaintiffs sotoregard it.

That maybeacorrect view.Butif that view engenders the proposition thatparticipation inan ASIS exercise exempts AS IS officersfromobedience tothe ordinary laws of theland, the proposition mustmeetwiththesame reply that Hale C.l. gavesome 300 years agotoacaptain of military whoasserted exemption from the jurisdiction ofthe ordinary courts:

"Whatever youmilitary menthink, youshall findthat youare under civiljurisdiction, andyoubutgnaw afile, youwillbreak your teeth ereyou shall prevail against it". The Case of Captain C. (40). TheCommonwealth Parliamenthasmade nolaw granting to ASIS officers exemption fromany law; itisunnecessary toconsider whether itsconstitutional powerscouldsupport suchalaw intimes of peace. It issufficient tosay that none of the approvals given is capableofaffecting anycriminal responsibility whichaparticular plaintiff mayhave incurred in theexercise at the Sheraton Hotel.

The exercise cardswithwhich theywere issued werenopassport to immunity fromtheoperation ofthe ordinary lawsofVictoria.

As aresult ofthe exercise at theSheraton HoteltheVictorian police propose toinvestigate whetherany of thecrimes following were committed: "(a) possession ofaprohibited weaponcontrary to s. 32 of the Firearms Act 1958(Vict.); (b) criminal damagecontrary to s. 197 ofthe Crimes Act 1958 (Vict.); (c) burglary contrary to s.76(1)(b)(ii) ofthe Crimes Act 1958; (d) having anarticle foruse in burglary contrary to s.91(1) of the Crimes Act 1958; (e) affray; (f) wilful damage contrary to s.9of the Summary Offences Act 1966(Vict.); (g) common assault; (h) assaultwithaweapon contrary to s.23 ofthe Summary Offences Act 1966; (i) assault in company contraryto s.23 ofthe Summary Offences Act 1966; and (j) possession ofasilencer contrary to s.34ofthe Firearms Act 1958." (40) (1673) 1Ventris 250, atp.251 [86E.R. 167, atp.168). 156 C.L.R.] OF AUSTRALIA.583 The Victorian policepropose toapprehend offendersandtobring charges againstthem.Theform inwhich thosefactsarestated in thecases isnot satisfactory (it issaid that theDeputy Commissioner "has swornanaffidavit in which he deposes" tothose facts)butthe fact that aninvestigation istobe conducted isstated inasubsequent paragraph. ThePremier ofVictoria hasrequested theMinister of State forForeign Affairstoprovide thenames ofthe plaintiffs tothe Chief Commissioner of Police forVictoria who "has agreedtotake any measures necessary topreserve theconfidentiality ofthe identity ofthe participants sofar as practicable todo so inthe conduct ofhis investigation ofbreaches ofthe criminal law alleged to have arisen outofthe exercise andinthe conduct ofany prosecution arisingoutofsuch investigation". TheMinister ofState for Foreign Affairs,thepresent ActingDirector-General ofASIS, and theCommonwealth "desiretocomply withtherequest ofthe Chief Commissioner todisclose thenames of t-he participants tohim the disclosure ofwhich healleges willenable himtoinvestigate alleged breaches ofthe criminal law,toapprehend offendersandto bring charges againstthem".

The plaintiffs haveobtained interimordersfromthisCourt restraining thedefendants fromdisclosing theplaintiffs' namesto any person. Theyseekpermanent restrainingorderstoprevent that disclosure. Except in K.'scase, theplaintiffs relyupon theterms of their respective contractsofemployment withtheCommonwealth.

In all cases including K. theplaintiffs assertaduty owed tothem by the Commonwealth nottodisclose theirrespective identities.

The existence ofcontracts betweentheCommonwealth andeach of the plaintiffs except K. isstated in therespective cases.Thecases do notstate howtheCommonwealth becameaparty to those contracts. Nostatute authorizes theestablishment ofASIS, the employment ofits officers orthe making ofcontracts onbehalf of the Commonwealth. LiketheBritish Security Service,ASIS is r:.either established by statutenorrecognized by thecommon law;it has nodefined status: Brownlie's Law of PublicOrderandNational Security, 2nd ed.(1981), p. 307. AS IS "was originally established in 1952 andnow operates undertheauthority ofa 1978 Cabinet Directive"; theMinister ofState forForeign Affairs is"responsible for ASIS which formspartofthe activities carriedon by the Commonwealth". Though ASIS wasnotestablished and is not governed by statute, Parliament hasappropriated moneysfor ASIS: see Appropriation Act (No.1) 1983-19Sl4 (Cth),Sched. 2, Div.319.

The authority ofthe Commonwealth (that is, theCrown in right of the Commonwealth) toestablish and,subject toappropriation, to maintain ASISmustrest in theprerogative powerofthe Common- H.C. OFA. 1984.~A.v. HAYDEl'.

Brennan J. 584 HIGH COURT [1984. H.C.OFA. 1984.'-.--'A.F. HAYDES.

Brennan J. wealth.Having regardto what is stated in thecases andtothe course ofthe argument, itmay be assumed forpresent purposes that theprerogative power of theCrown in right of theCommonwealth has been validly exercised toemploy ASISofficers and thatthe plaintiffs weresoemployed: cf. New SouthWales v. Bardolph (41). The casesstate that therespective contractsbetweentheCommon­ wealth andeach of theplaintiffs exceptK.contain thefollowing term: "It was aterm of each of [the plaintiffs' contracts] of employment withtheCommonwealth that hisidentity would be kept confidential, and inparticular, exceptinso far asmight be necessary forthe conduct of thefunctions of ASIS, there would not be disclosed to any person: (a) thename, address, occupation or any otherparticular identifying or likely to identify himasaperson whohas worked forASIS; (b) any act or thing donebyhim inthe course of histraining or work forASIS." The defendants' openingsubmission invitedthecourt toread down thisterm bytreating thelanguage of thestated casesasthe text of a contract andbyconstruing that text soas tocreate amore qualified obligation of confidentiality than theobligation expressed by the stated cases.Butthestated casesdo not purport toset out the text ofthe contracts, written or oral,from which thecontent of the term is to be derived. Theyset out therelevant term of the respective contractsasan ultimate fact.Order 35, LI (2) provides that aspecial case"shall concisely statesuch facts and documents as are necessary to enable the Court todecide thequestions raisedby the special case".Theparties cannot bind the Court to aproposition of law that isexpressed or implied bythe stated case, but the Court isnot at liberty tofind anyfacts inconsistent with what theparties have concurred in stating. The Court cannot findthecontent of the term tobe more qualified than thecases stateitto be. If the cases had stated acontractual textwhich hadtobe construed in order to define thecontent of the contractual term,thedefendant would have been at liberty toargue foraqualified construction, butthe Court must takeitto be afact that a promise wasmade toeach of the plaintiffs exceptK.inthe terms stated in the cases. It is immaterial that 0.35, LI (4) permits thedrawing of inferences (a provision differentfromtherule which governed thecase stated in Reg. v. Rigby (42)). There is noroom foraninference that the (41) (1934) 52C.L.R. 455, at pp. 462, 495-496, 502-503, 508. (42) (1956) 100C.L.R. 146. 156 C.L.R.) OF AUSTRALIA.585 respective promiseeswere in factpromised something differentfrom what is stated inthe cases. Itmay beaquestion oflaw, however, whether theperson who in factmade thepromise hadauthority to do soand whether thepromise is enforceable againsttheparty whom itpurports to bind.

The plaintiffs areentitled to found theirclaim forrelief onthe footing that the persons whoemployed thempromised (as thecases state) that the Commonwealth wouldkeeptheiridentity confidential and would notdisclose that identity to anyone except in sofar as might benecessary forthe conduct of thefunctions ofAS IS. The cases state that disclosure ofthe plaintiffs' identitiestothe Com­ missioner ofPolice is"not necessary forthe conduct ofthe functions of AS IS". The question oflaw that arises is this: is the Crown in right ofthe Commonwealth boundbysuch apromise?

The primary question isnot whether, in thecircumstances stated in thecases, the promise shouldbeenforced. That question arisescontingently upon the Crown inright ofthe Commonwealth beingbound inlaw bythe promise.

The promise stated in thecases is susceptible ofobservance in many situations. The relevant situation inwhich theplaintiffs seek to have thepromise enforced is onewhere criminal offences are reasonably suspected to havebeencommitted, andwhere the responsible policeauthorities askforthe identity of thepersons who are known tohave beeninvolved inthe events whichhavegiven rise to thesuspicion ofcrime toassist thepolice intheir investigation.

The term of thecontract asit isstated tobe inthe cases embraces that situation. TheCourt is therefore constrained totreat the contract aspurporting tobind theCommonwealth to refuse to disclose tothe responsible policeauthorities theidentity ofthe plaintiffs ifthe plaintiffs becomeinvolved inan ASIS exercise which causes thepolice reasonably tosuspect thatcriminal offences have been committed andreasonably torequest disclosure ofthe plain­ tiffs' identity to assist in their investigation intothesuspected offences andinto theplaintiffs' involvement inthose offences. We are not concerned withapurported contractwhichbindsthe Commonwealth toexercise adiscretion aboutdisclosing aplaintiff's identity. Weareconcerned withapurported contractwhich in effectbargains awaytheexecutive government's discretiontoact according toits own appreciation ofthe exigencies ofnational security onthe one hand and theenforcement ofthe law onthe other. Eachofthe contracts onwhich theplaintiffs relypurports to deny to theexecutive government adiscretion todisclose orto refrain fromdisclosing aplaintiff's identityaccording toits own view astothe course whichbetterserves thepublic interest. The H.C.OFA. 1984.'---,---' A.,.. HAYDEK.

Brennan J. 586 HIGH COURT[1984. H.C.OFA. 1984.'--,.---' A.L'. HAYDES.

Brennan 1. contractpurports tobind theCommonwealth torefuse todisclose a plaintiff's identityeventhough theexecutive government isofthe view that,inthe public interest, thatidentity should be disclosed to assist thepolice in their investigation intotheplaintiff's involvement in offenceswhicharereasonably suspectedtohave beencommitted.

In my opinion theCrown in right ofthe Commonwealth is incapable ofbinding itself by suchacontract andnone ofits servants couldhavehadauthority tomake acontract containing the term stated in thecases. Likethecontract in Howard v. Odhams Press Ltd. (43), itwould "havethenecessary effectofrestricting the opportunity whichthedefendants andothers mightotherwise possess toassist theauthorities in the investigation of,and, if necessary, in the prosecution ofthe alleged crimes". Slesser LJ. said of acontract whichhethus described that"itwas in the public interest thatnothing should be agreed by thedefendants which might havetheeffect ofpreventing theauthorities knowingthe facts" (44). The objection tothe promise nottodisclose isnot that it runs counter toalegal duty todisclose, butthat itpurports todeny to the executive government adiscretion, whateverthecircum­ stances maybe,todisclose inorder toassist in the investigation ofa criminal offence.Thevariety ofcircumstances comprehended bythe promise andtheunqualified obligationnottodisclose in any circumstances (exceptforthe purposes of ASIS) wouldpreclude the executive government from furnishing informationthatmight otherwise beavailable toassist thepolice toenforce thelaw. Such a promise hasatendency adversely toaffect theadministration of justice and is void: Egerton v. Brownlow (Earl) (45); Horne v. Barber (46). Takeanextreme case. Ifoneofthe plaintiffs involved in the"exercise" hadliveammunition inhis gun andfired itashe was leaving thehotel andkilled aninnocent bystander, thepromise of non-disclosure onwhich theplaintiffs relywould preclude the executive government fromdisclosing theidentity ofthe killer. It may be argued thatthepromise wasnotintended tocover extreme cases, butthedifference betweensuchacase andthepresent lies only in the seriousness of theoffences suspected tohave been committed. Yetthepromise isin absolute terms. If thescope of the promise extendstothe present case,itextends to theextreme case and itcannot be given adisparate operation. It is easiertoaccept thattheexecutive government shouldnot disclose identities ifthe offence suspected tohave beencommitted is (43) 11938)1 K.B. 1. (44) [1938)1K.B., atpp.31, 33. (45) (\+) 4 H.L.e. I,atp. 163110 E.R. 359, atp.424]. (46) (1920) 27 e.L.R. 494, at pp.499-500. 156C.L.R.] OF AUSTRALIA. 587 atthe other endofthe criminal calendar -say, aminor traffic offence. Buttherange ofoffences andthediversity ofcircumstances in which theyarecommitted merelyillustrate thepublic interest in theCommonwealth's reservationofits ability todecide onits response toa.request forinformation toassist in criminal investi­ gation according tothe circumstances ofeach case. In Com­ missioners of Crown Lands v.Page (47), Devlin L.J.said: "When theCrown, orany other person, isentrusted, whether by virtueofthe prerogative or by statute,withdiscretionary powers to be exercised forthe public good,itdoes not,when making aprivate contract in general terms,undertake (and it may be thatitcould noteven withtheuse ofspecific language validly undertake) tofetter itselfinthe use ofthose powers, and in theexercise ofits discretion." Though theability todisclose information is notapower, the principle stated by LordDevlin (andcited withapproval by Mason J. in Ansett Transport Industries (Operations) Pty.Ltd. v. TheCommonwealth (48)) applies equally tothat ability toact. The Crown cannot bargain awayitsability toact in the public interest. In Sykes v.Director of PublicProsecutions (49) LordGoddard spoke of "the duty ofevery citizen toassist in the detection and suppression ofcrime". That may be pitching it too high ifhis Lordship hadalegal rather thanamoral duty in mind,especially when misprision offelony hasgone from thecriminal calendar in Victoria withabolition ofthe distinction betweenfeloniesand misdemeanours: see Crimes(Classification of Offences) Act 1981 (Vict.),inserting ss. 322B and 326 in the Crimes Act 1958 (Vict.). Buttheability ofany citizen toassist in the detection and suppression ofcrime cannot be bargained awayexcept wherethe crime is not amatter ofpublic concern: cf. Kerridge v. Simmonds (50). That is nottosay that obligations ofconfidence cannot be accepted by contract orimposed by law butsuch obligations cannotenjoinsilence wheredisclosure is reasonably required by the police (or other law enforcement agency)toassist in the investigation ofcrimes reasonably suspectedtohave been committed andsuch disclosure isjustified in thepublic interest: cf. InitialServices Ltd. v. Putteriff (51). Aterm ofacontract notto disclose confidential information thoughdisclosure isreasonably so required tobe made andthough disclosure isin thepublic interest is void.Ageneral termnottodisclose information might be readdown so as to permit disclosure in thosecircumstances, butunless H.C.OFA. 1984.'----y-' A.II. HAYDEN.

Brennan J. (47) (1960)2 Q.B. 274, atp.291. (48) (1977) 139C.L.R. 54, atp.78. (49) [19621 A.C.528, atp.567. (50) (1906)4 C.L.R.253. (51) [1968)1 Q.B.396, atp.405. 588 HIGH COURT [1984. H.C.OFA. 1984.'--y-' A.V. HAYDE".

Brennan J. disclosure in thosecircumstances is permitted theterm is void whether thecontract be made by the Crown or by asubject. The term isvoid because itiscontrary topublic policy. TheCrown has no capacity tobind itself by aterm which is contrary topublic policy, andnoservant oragent ofthe Crown hasorcan be given authority tobind theCrown by such aterm. Thepowers ofthe Crown cannot be exercised contrarytowhat thelaw recognizes as public policy. It follows thattheCrown's abilitytoassist in the investigation ofcrimes reasonably suspectedtohave beencommit­ ted cannot be fettered byan unqualified contractual obligationnot to disclose theidentity ofaperson: circumstances mayarise which justify disclosure in thepublic interest.

Indeed, suchacontract, ifmade toprotect theidentity ofa servant ofthe Crown shouldtheservant commit anoffence, would give immunity fromprosecution so far as theconcealing ofthe servant's identitycouldachieve it. Insubstance, thoughnot in form, the servant wouldbedispensed by the Crown fromresponsibility to obey thecriminal law.That wastheevil which the Declaration of Right wasconcerned tocondemn. Noconsideration of national security canwarrant eithertheCrown's dispensation ofits servant from responsibility forthe commission ofacriminal offencenorits promise nottodisclose hisidentity if he is involved in the commission of a criminal offenceorinwhat isreasonably suspected to have beenthecommission of acriminal offence.Theneed fora secret service cannot be met by promising itsofficers anonymity to protect themifthey choose, whether forgood motive orbad, to commit crimes.Inthe absence ofParliamentary dispensation,the executive government canpromise noimmunity fromtheordinary processes ofthe law. If such apromise weregiven andhonoured irrespective of the circumstances whichevoked itsobservance, it would bean inducement tocrime wholly inconsistent withtherule of law. What Clark J.said in delivering theopinion ofthe Supreme Court ofthe United Statesin Mapp v.Ohio (52), ismanifestly true:

"Nothing candestroy agovernment morequickly thanits failure toobserve itsown laws, orworse, itsdisregard of the charter ofits own existence." No agency of the executive government isbeyondtherule oflaw. ASIS must obey thelaw and, ifits officers donot, theexecutive government must be freetodo what itthinks right in thepublic interest in the circumstances as they occur. It makes nodifference (52) (1961) 367U.S. 643, atp.659 [6Law. Ed. (2d) 1081, atp.10921. 156 CL.R.] OF AUSTRALIA. 589 thattheexecutive government ofthe Commonwealth isnot charged with theexecution ofthe criminal lawsofVictoria; it isincapable of promising ASISofficers that itwill notassist theCrown in right of Victoria fromexecuting thoselawswhen ASISofficers areinvolved in what arereasonably suspectedto be criminaloffencesandthe executive government thinksthatit isinthe public interest toassist. The stated casesset out anumber ofgrounds ofnational security which militate againstdisclosure ofthe identity ofthe plaintiffs and it has been argued that those considerations should be put in the balance todetermine whetherenforcement ofapromise ofnon­ disclosure is contrary tothe public interest. Ido not listallthe considerations statedinthe cases. It may wellbecontrary to the interests ofnational securitytodo so. But arecital ofthe considerations whicharepublic knowledge sufficestoshow that there areindeed countervailing considerationswhichmightleadthe executive government torefrain fromdisclosing theidentity of ASIS officers inparticular circumstances. Thecases state: "(a) Themaintenance by AS IS ofan ability effectively to discharge itsfunctions is of great importance tothe national security ofAustralia; (b) inorder effectively todischarge its functions ASISrequires torecruit andtrain suitable personsto work onitsbehalf; (c) for the purpose bothoftraining new recruits andmaintaining thecapability ofexisting officers ASIS requires fromtimetotime toconduct trainingexercises;(d) further,inorder properly andefficiently todischarge its functions, AS IS requires tomaintain contactandliaison with and thegoodwill andco-operation of: (i) similar organizations in someforeign countries; (ii) officers andagents involved in gathering intelligence inforeign countries; (e) forthe achieve­ ment ofits objects andpurposes, it isgenerallynecessary that ASIS, andtheCommonwealth by itsservants andagents, ensure and be seenbyany person concerned toenquire or investigate toensure, that the identity of each of A., 8., C, D., E., G.and K. be kept confidential andinparticular, except in sofar asmight be necessary forthe conduct ofthe functions of ASIS, thattherebe notdisclosed toany person: (i) thename, address, occupation andany other particular identifying or likely toidentify himasaperson whohasworked forASIS; (ii) any act or thing done by him in thecourse of his workfor ASIS; (g) the disclosure toforeign intelligence servicesofthe identity ofA., 8., C, D., E.,G.and K. would be prejudicial to the international andnational securityofAustralia". If the Crown inright ofthe Commonwealth werebound by an unqualified promisenottodisclose theplaintiffs' identities, these considerations ofnational securitywouldreinforce theclaim foran injunction. ThePelion ofnational securitywould be piledonthe Ossa of contractual right.Absent thecontractual right,however, H.C.OFA.1984.'--.,.--' A.V. HAYDEN.

Brennan J. 590 HIGH COURT [1984. H.C. OFA. 1984.~A.v. HAYDEN.

Brennan J. andconsiderations ofnational securityareirrelevant tothe judicial resolution ofthese cases. ThisCourt isnotengaged inreviewing the exercise ofthe executive government's decision- adecision made in exercise ofthe discretion whichthecontract is incapable of removing.

Where adiscretion isexercised by the executive government, one might expect that,inthe opinion ofthe government, considerations of national securitywouldsometimes outweighconsiderations in favour ofdisclosing anASIS officer's identitytoassist law enforce­ ment agencies. Butthebalancing ofthose considerations isforthe executive, notforthe court. TheCourt wasinvited tobalance those considerations asthough itwere engaged indeciding whetheran executive claimofprivilege fromproduction ofdocuments should be upheld: cf. Sankey v. Whitlam (53). There is nooccasion forthe Court todecide wherethebalance lies inthe present case. It isnot necessary nowtoconsider whetheracourt hasjurisdiction judicially to review theexercise ofaprerogative power.Wewere referred to the recent decision ofthe Court ofAppeal in England in Council of CivilService Unions v. Minister for theCivil Service (54) where the Court heldthat ithad"no power to review theexercise of the royal prerogative inthe context ofnational security" butthequestions there discussed havenopresent relevance. It wasnotargued here that, apart fromcontract, considerations ofnational securitylimit the executive government's discretiontodisclose theplaintiffs' identities. Thedifficulties whichwouldconfront acourt whose jurisdiction isinvoked toreview theexercise ofsuch adiscretion are obvious. Theyarepowerfully statedbythe Supreme Courtofthe United States in Chicago & Southern Air Lines,Inc. v. Waterman Steamship Corporation (55). Theyneednottrouble thisCourt in deciding thepresent case.

In the absence ofabinding contract, theexecutive government was atliberty toexercise itsown judgment astowhether itshould disclose theplaintiffs' identitiestothe Victorian PoliceCom­ missioner orwhether considerations ofnational securityjustified a refusal todo so. That wasamatter forexecutive discretion, notfor judicial decision. Theconfidentiality ofASIS officers' identities can rest onnomore certain afoundation thanexecutive judgment exercised honestlyhavingregardtoconsiderations ofnational security andtothe public interest in theenforcement ofthe law. To some officers ofASIS, thatfoundation mayand, in thepresent case, no doubt doesseem tobe insecure, butthat is aninherent (53) (1978) 142C.L.R. 1. (54) [19851 A.C. 374. (55) (1948) 333U.S. 103, atp.III [92Law. Ed.568, atp.5761. 156C.L.R.] OF AUSTRALIA. 591 characteristic ofasecret service whoseexistence dependsupon executive fiatand whose working dependsonmutual trustbetween its officers andtheexecutive government. Theofficers ofASIS should know,andifthey donot know theyshould betold, thatthey are bound - as everycitizen isbound -by the criminal lawand that nogovernment andnosuperior officerhaspower todispense them fromthelaw ortopromise themanonymity iftheybreak it. Some passages inthe case stated in action No. M.l04 of 1983 suggest thatadifferent view has gained somecurrency. Unlessthe legislature haspower tointervene anddoes intervene togrant an exemption fromthelaw, theofficers ofASIS cannot begranted relief by the courts that is notavailable toother citizens whose involvement insuspected criminaloffences isunderinvestigation. If this be thought tooabsolute aview topermit theeffective training of aforce tosafeguard thenation's security, theremedy doesnot lie inajudicial dispensation fromthe law. Though thecourts must interpret thelaw, they arebound by the law they interpret andthe notion thatthey might grantadispensation fromthe law affecting the investigation ofcriminal offences subverts thevery purpose of their being. More, itsubverts therule oflaw upon which oursystem of government depends.

This isno consolation tothose plaintiffs whoheld an honest belief that what theydidwas authorized andinaccordance withaplan approved by their superior officers.Whenaparty whoought to know thelimits ofhis contractual capacity is relievedfrom performance ofapurported contractbecauseofhis legal incapacity to enter intoit,the other partymayrightly feelthesting ofinjustice: cf. Wilkinson v. Osborne (56), per Isaacs J. Where anASIS officer is recruited onthe promise thatnomatter whatthecircumstances, his identity willnot be disclosed, he might be excused forbelieving that the person recruiting himhadauthority tomake thatpromise. Then the sting ofinjustice isthe sharper whenhediscovers thathe,the recruit, nottheperson whorecruited him,must beartheburden of their common mistake.

From sorrystarttotragic finish, thestated casesdescribe the breaking ofapromise thatshould neverhavebeenmade. It should be saidthat theCommonwealth's openingargument wouldhave chalIenged theproposition thatanunqualified promisewasmade.

But, as I have said,thestated casesareopaque andtheactual promises madetothe plaintiffs by those whorecruited themcannot be ascertained except by referencetowhat those casessay.

The plaintiffs putanalternative groundtosupport theirclaim, (56) (1915) 21 C.L.R.89, atp.98. H.C.OFA. 1984.'-y--' A.v. HAYDEN.

Brennan J. 592 HIGH COURT [1984. H.C.OFA. 1984.'---,,---' A.1'. HAYDE".

Brennan J. namely,a duty of confidentiality arisingfromtheiremployment. K.

puts hiscase on that ground alone. It maybeshortly disposed of.A duty ofconfidentiality whichtheCommonwealth could not under­ take bycontract cannot beimposed on the Commonwealth bylaw. No doubt therearemutual obligations of confidentiality owed by theCommonwealth and the officers of ASIS butthey are not unqualified. If an express promise cannot assisttheplaintiffs inthe present case,equally no non-contractual duty candoso. The questions must beanswered asfollows: In actions Nos.M. 10 I,M.102 and M.103 of 1983- I.Yes,but the term asstated isnot binding on the Commonwealth. 2. (a) Yes; (b) No.3. No.4. NO.5.No. In actionNo. M.l 04 of 1983- 1. Yes, but theterm asstated is not binding on the Commonwealth. 2. (a) Yes; (b) No.3. No.4. No. 5. Unnecessary to answer.6. No.7. No.

In action No.M.105 of 1983 - 1. Not applicable. 2. Not applicable. 3. No.4. No.5. No. DEANE J.These fivecases illustrate theabiding wisdom of the biblicalinjunction againstputtingone's "trust in men in power":

Psalms 146:3;Jerusalem Bible, p. 927. The plaintiffshavebeen described without dissent as"upright, decentmenserving their country". The two rocks uponwhich theyfounder are,however, propositions oflaw which are not to bemoved to meet the exigencies of hard cases. Shortly andrelevantly stated,those propositions are: (i) that neither the Crown nor the executivehas any common lawright orpower to dispense withtheobservance of the law or to authorizeillegality and (ii) that thecourts of this country will not enforcetheterms of apromise not to disclose information incircumstances wheresuchenforcement wouldob­ struct the due administration of the criminal law.Since there is a general correspondence between the facts of allfive cases and the variations betweenthemare not critical to theoutcome, it is convenient to referparticularly to the firstaction inwhich the plaiI1tiffs areidentified asA., B., c., D. and E. Ishall refer to the plaintiffs in that caseas "the fiveplaintiffs". The five plaintiffs werepart-time members of theAustralian Security Intelligence Service(ASIS).Theirrolein the ill-fated "exercise" based on Melbourne's SheratonHotelwas that of menin the field whose function itwas to serve and to do what they were told. They participated in the exercise "at the direction of the Commonwealth" and were given "Commonwealth exercisecardsby ASIS personnel" whichstated that thebearer wasonaCommon­ wealth exercise and whichtheywere instructed "to show ... should 156C.L.R.] OF AUSTRALIA. 593 they be questioned astotheir activities duringtheexercise". It is common ground that successive Ministers of StateforForeign Affairs wereadvised andgave their"approval toaspecial project to develop covertactioncapability" and that "the exercise" wasthe outcome of steps taken byASIS "to implement" that approved "project". Itisalso common ground that each of theplaintiffs, at all material times,held "an honest belief' that "anything hewas instructed or authorized todo byASIS hadtheauthority of the Australian Government". Each of theplaintiffs allegesandthe Commonwealth and other defendants donot deny that"everything done byhim inthe course of theexercise wasdone pursuant to instructions giventohim by an officer of AS ISwho wasapparently acting within hisauthority" and that "he had anhonest beliefthat ASIS before instructing or authorizing him to do any act or thing would obtain any authority or consent necessary tomake anyact or thing lawful". Inshort, each of thefive plaintiffs wasdirected bythe Commonwealth toparticipate in the exercise and followed orders believing that any authority or consent whichmightbenecessary to make hisactions lawfulhadbeen obtained. The fiveplaintiffs' trustinthe Commonwealth and inthose who approved theexercise orgave them theirdirections or instructions was completely misplaced. The "authority or consentnecessary to make any act or thing lawful" was not obtained and,inthe absence of special statutory provision, wasprobably notwithin thepower of any person or combination of persons togrant. The"direction" to participate inthe exercise, inthe manner inwhich itwas carried out, was adirection whichtheCommonwealth executivecould not lawfullygive. To theextent that thefive plaintiffs maythemselves have beeninvolved in criminal activities, the"Commonwealth exercise cards"whichtheywere "instructed ... toshow" should they bequestioned werecompletely ineffectualtoestablish legal justification. The criminal law of thiscountry hasnoplace fora general defence of superior orders or of Crown or executive fiat. The concerted action,thebreaking open of thedoor withasledge­ hammer, the"jostling" of the hotel manager, thefirearms including automatic weaponsand the maskscombined toraise at least a reasonable apprehension that criminaloffences hadbeen committed and tocall forinvestigation bythe Victorian policeforce in the ordinary administration of thecriminal law of that State. The DeputyCommissioner (Operations) of that forcehassworn an affidavit in which hedeposes that he believes that the "participants" in the exercise "committed breaches" of theState's criminal lawand that "it is essential thatheidentifies theparticipants inorder to investigate properlywhether any [such]crimes havebeencommit- H.C.OFA. 1984.'--y--' A.F. HAYDEl'.

Deane J. 594 HIGH COURT [1984. H.C.OFA. 1984.'-,.-' A.v. HAYDEN.

Deane J. ted,toapprehend offendersandtobring charges againstthem".The Premier ofVictoria hasrequested theCommonwealth todisclose the names ofsuch participants tothe State's ChiefCommissioner of Police. Fortheir part, theCommonwealth MinisterofState for Foreign Affairs,theActing Director-General ofASIS andthe Commonwealth ("thedefendants") all "desire tocomply" withthat request. Theplaintiffs seek in theseactions torestrain such disclosure. Withtheexception ofone ofthe plaintiffs in thefifth action ("K.")whorelies upon apromissory representation, each plaintiff baseshisclaim torelief uponaprovision ofhis "contract of employment". It is commongroundthatmisprision offelony is defunct inVictoria and that noneofthe defendants is under any legal dutytodisclose therelevant information eithertothe Chief Commissioner ofPolice oranyone else.Inthe absence ofany such duty, theordinary positionunderthelaw applies andeach ofthe defendants is at liberty toremain silentandtopreserve the confidentiality ofhis or its information: cf. Baker v.Campbell (57). Thestated case in thefirst action records thatitwas a"term" of the "contract ofemployment" ofeach ofthe five plaintiffs "withthe Commonwealth" thathisidentity would be keptconfidential andin particular that,except tothe extent "necessary forthe conduct of the functions ofASIS", therewould not be disclosed "toany person" his name, address orany actorthing done by him in thecourse of his training orwork withASIS. Thedefendants donot suggest that disclosure ofthe names ofany ofthe plaintiffs is in any way "necessary forthe conduct ofthe functions ofASIS". Theirfirstline of defence isasubmission thattherelevant provision ofthe contract of employment betweeneachofthe five plaintiffs andtheCommon­ wealth doesnotmean whattheagreed wordssay.Their second line of defence isthat that provision ofthe contract is, tothe extent that it would prevent disclosure tothe Commissioner ofPolice ofthe identity ofthe relevant plaintiff in thecircumstances whichhave arisen, voidandunenforceable.

Ordinarily, therewould beconsiderable force in asubmission that a general termofacontract requiring thepreservation of confidentiality ofthe identity ofone ofthe contracting parties should be read as subject toimplied limitations includingalimitation that would permit disclosure toan officer ofacompetent police force investigating areasonably apprehended breachofthe criminal law bythat party tothe contract: cf. Tournier v.National Provincial and Union Bank of England (58); Smorgon v. Australia & New (57) (1983)153C.L.R. 52, at p. 111. (58) [192411 K.B.461, atpp. 472· 473,481,486. 156 C.L.R.) OF AUSTRALIA. 595 ZealandBanking Group Ltd. (59). There is, however, noroom for the implication ofsuch alimitation inthe provision ofthe contract set out inthe stated caseinthe action brought bythe five plaintiffs.

The parties haveagreed in thatstated caseonthe ultimate factof the content ofthe relevant provision of thecontract in words ("there would not be disclosed toany person") thatareclear and,subject to the specified limitation inrelation tothe conduct ofthe functions of ASIS, general. Whatever maybethe position withregard to disclosure underlegalcompulsion or in performance oflegal duty, it issimply notopen tothe defendants tomaintain thatthatprovision of thecontract should be readdown toexclude thevoluntary disclosure whichthedefendants threatensoastogive theprovision the opposite effectinthe circumstances ofthe first action tothat which would be produced bythe words setout inthe agreed case which hasbeen stated forthe purposes ofthat very action.

On the other hand, thedefendants' argumentbasedonpublic policy mustprevail. Therelevant proposition oflaw was shortly stated at the commencement ofthis judgment. It isthat thecourts of this country willnotlend their aidtoenforce apromise notto disclose information wherethecircumstances aresuch thatenforce­ ment orinsistence uponobservance ofthe promise wouldobstruct the due administration of thecriminal lawofAustralia, whether Commonwealth orState. Therationale ofthat proposition is that, apart fromtheexceptional case(such as thatofaprofessional legal adviser) wheretheoverall administration ofthe law itself requires that confidentiality bemaintained, itwould be contrary topublic policy forthe courts toenforce aright onthe part ofone person to insist thatanother failorrefuse todisclose relevant information to assist thoseentrusted withtheordinary administration ofthe criminal law in theproper investigation andprosecution ofcriminal activity: theenforcement bythe courts ofsuch aprivate right to insistthatanother fail or refuse todisclose relevant information would involve thecourts in theobstruction ofthe due administration ofthe criminal lawwhich isamainstay bothofthe rule oflaw which theyexist toserve and of thevery existence of effective privaterights. For thepurposes of that proposition, the investigation of actual orreasonably apprehended criminalactivity by aregular lawenforcement agencyofthe Commonwealth orofa State is part ofthe administration ofthe criminal law.Whether enforcement orobservance ofaterm of a particular promiseof confidentiality wouldobstruct thatadministration is aquestion (59) (1976) 134C.L.R. 475, atpp. 488-489. H.C.OFA. 1984.'-,----' A.V. HAYDEl<.

Deane 1. 596 HIGH COURT [1984. H.C.OFA. 1984.'-y--' A.V. HAYDE".

Deane J. whichmust be determined inthe context ofthe circumstances ofthe particular case.Plainly enough, theenforcement ofsuch apromise by an order forbidding athreatened voluntarydisclosure tothe Commissioner ofaState police forceofthe identity ofthe participants injoint activity whichinvolved actualorreasonably apprehended offencesagainstthecriminal lawof that State would involve obstruction of thedue administration of that criminallaw.

In stating therelevant proposition interms of unenforceability by the courts, Ihave avoided thequestion whetherageneral contrac· tual promise which,properly construed, requiresthemaintenance of confidentiality notwithstanding thattheadministration ofthe criminal lawwill be obstructed thereby is whollyorpartially "illegal", "void"or"invalid". That question raisesproblems of terminology andsubstance, includingthenature andeffect of any distinctions between"illegal", "void","invalid" and"unenforceable" (cf. Brooks v. Burns PhilpTrustee Co. Ltd. (60); Buckley v. Tutty (61)) andtheidentification ofthe precise principles governing the residual enforceability (ifany) of such ageneral contractual promise tothe extent thatthemaintenance of confidentiality would not adversely affectthedue administration ofthe criminal law.At one end of thescale is the case where thedirect andimmediate operation of the contractual promisetopreserve confidentiality isto obstruct thedue investigation of crime byconcealing information about criminal activityandwhere itwould seemclearenough that thepromise itself istaintedwithillegality and isvoid. At theother end ofthe scale is the case where ageneral promise of confidentiality isinnocently givenandwhere it isonlyinremote and unforeseen circumstances that anadverse effectuponthedue administration ofthe criminal lawwould resultfromitsobservance:

in such acase, there ismuch tobe said forthe view thattheresult is superseding unenforceability merelytothe extent that observance of the promise wouldhavesuch an adverse effect.Thosequestions have not,however, beeninvestigated inargument in the present actions andthey arebest lefttoanother day.Ihave alsorefrained from seeking todetermine whetherthere is somemoregeneral principle of which theparticular proposition isanemanation and,if there is, to identify anddefine itsouter limits. Thestatement of the proposition byreference to whether enforcement orinsistence upon observance of a promise of confidentiality wouldobstruct thedue administration of the criminal lawsuffices forpresent purposes since it isclear that the enforcement of the promise of confidentiality in (60) (1969) 121 C.L.R. 432, at p.458ff. (6n(197 n125 C.L.R. 353. at p.379ff. 156C.L.R.) OF AUSTRALIA. 597 theinstant cases by anorder restraining thedefendants from disclosing theplaintiffs' identitiestothe Chief Commissioner would, in thecircumstances as disclosed by thestated cases,involve obstruction ofthe due administration ofthe criminal lawof Victoria. It was submitted onbehalf ofthe plaintiffs thatthere should be weighed againstanyconsiderations ofpublic interest favouring disclosure oftheir identity tothe Chief Commissioner ofPolice a variety ofcountervailing considerationsofpublic interest, including considerations goingtonational security, whichmilitate against such disclosure. If thisCourt wererequired todetermine theoverall balance ofcompeting considerations ofpublic interest, therewould be much force in thatsubmission sincetheconsiderations favouring preservation ofthe confidentiality ofthe identity ofthe plaintiffs, though varying fromcase to case,aresubstantial andcounsel forthe plaintiffs haveconvincingly demonstrated theinadequacies ofthe Commonwealth-Victorian legislativeschemewhichoffersnoeffec· tive protection againstdisclosure ofthe identity ofaplaintiff charged withanoffence unlessanduntil thecourt (be itSupreme Court orJustice ofthe Peace) beforewhich he is charged is persuaded, in theexercise ofalargely unconfined statutorydis· cretion, toorder thatjustice be administered in secret: see Criminal Proceedings Act 1984 (VicL) and Judiciary Amendment Act 1984 (Cth). In the present actionshowever, theCourt isnot concerned to perform thetype ofbalancing exercisewhichmay be involved in deciding whetherdisclosure orproduction ofdocuments shouldbe ordered orevidence should be compelled orreceived: cf. Sankey v. Whit/am (62). Whilegeneral considerations ofpublic policy, suchas considerations ofnational security, mayprevail overaprima facie entitlement todiscovery, production ordisclosure in the actual course ofthe administration ofjustice by the courts (see, e.g., Gaming Board of GreatBritain v.Rogers (63)), theyprovide neither foundation norjustification forthe making by acourt ofapositive order which would obstruct thedue administration ofthe criminal law at the suit ofone who is asserting somecontractual orother private right.Theproposition thatthecourts ofthis country will not lend their aidtoenforce apromise nottodisclose information where the circumstances aresuch thatenforcement orinsistence upon observance ofthe promise wouldobstruct thedue administration of the criminal lawwhich it isafunction ofthe courts toadvance is not aprovisional onewhich issubject tobeing overruled by some H.C.OFA. 1984.'--r---'A.V. HAYDEN.

Deane 1. (62) (1978) 142C.L.R. 1,atpp. 38­ 39.S6ff., 95-96. (63) [1973] A.C.388. 598 HIGH COURT (1984. H.C.OFA. 1984.'-y---' A.

". HAYDEN.

Deane J. perceivedbalancing ofother considerations ofpublic interest. In some cases, ofcourse, abalancing processmay be involved in determining whethertheenforcement ofapromise tomaintain confidentiality hastheoverall effectofadvancing, ratherthan obstructing oradversely affecting, thedue administration ofthe criminal law.Theobvious example iswherethepromise tomaintain confidentiality isthat of aprofessional legaladviser andrelates to communications whichareproperly thesubject oflegal professional privilege: see,e.g., Weld-Blundell v. Stephens (64); Grant v. Downs (65); Baker v. Campbell (66). Once itappears, however, that enforcement orinsistence uponobservance of suchapromise would obstruct thedue administration ofthe criminal law,theprinciple which precludes enforcement by thecourts isoperative withoutany further weighing processbeingnecessary oroher considerations of public interest beingrelevant. Indeed,theposition ofthe ordinary individual underthelaw would be such astomake non-disclosure the only safecourse ifhe were unable toascertain whetherhewas under anenforceable obligationtoobserve apromise tomaintain confidentiality unlessanduntil it wasknown whether itwould ultimately beheld thatother considerations, suchasmatters of national securityofwhich hemight wellbecompletely unaware, outweighed theobstruction of the due administration ofthe criminal law which enforcement orobservance ofthe promise wouldinvolve.

While onewould expect theconsiderations ofpublic interest upon which theplaintiffs relytoweigh heavily withthedefendants onthe question whethertheidentity of allorany ofthe plaintiffs should be disclosed by theCommonwealth tothe Commissioner ofPolice, they aresimply not in pointinso far asthe five actions in thisCourt are concerned.

Two further matters should be mentioned. Thefirst is that the facts thatthe"project" was"approved" by theresponsible Minister, that a"direction" wasgiven by theCommonwealth andthat an "instruction" wasgiven by those in authority, whileproviding neither immunity norindemnity in respect ofany breach of the criminal law,could wellberelevant onthe question ofwhat, ifany, penalty should be imposed in theevent thatanyofthe plaintiffs is charged andconvicted. Acourt before whomanyofthe five plaintiffs waS charged mightwellconsider, ifthequestion ofpenalty were reached, thatthemajor shareofthe blame forthe whole sorry mess lies squarely onthe shoulders ofthose whogave directions and (64) 11919)1K.B.520, atpp.544· 545,547. (65) (1976) 135 C.L.R. 674, at p.688. (66) (1983)153C.L.R., atpp. 114­ 115. 156C.L.R.) OF AUSTRALIA. 599 instructions to decent meninthe name oftheir country. The second is thatsome of thematerial beforetheCourt hasbeen keptsecret with theconsequence that full disclosure ofthe factual meritsofthe case which the plaintiffs makeagainst theCommonwealth is precluded and meaningful discussionofthe considerations which would havebeenrelevant to answering onequestion whichithas proved unnecessary toanswer (question 4in No. M.l04 of 1984) would not have beenpossible. The parties have,however, agreed that there areexceptional and compelling considerations goingto national securitywhichhaverequired that theconfidentiality of the relevant material bepreserved. Indeed, the factthat allparties are agreed on the need forsecrecy hasitself been an important factorin my concurrence inthe departure fromtheordinary principle that justicemust be openly administered inopen court: cf. Australian Broadcasing Commission v.Parish (67). Thequestions inthe stated casesshould beanswered:

Actions Nos.M.IOI, M.l02 and M.103 of1983 - I. Yes. 2. (a) Yes; (b) NO.3. There isno suchenforceable duty. 4. No.5. No.

Action No.M.104 of1983 - I. Yes. 2. (a) Yes; (b) NO.3. There isnosuch enforceable duty.4.Unnecessary toanswer inlight ofthe answer toquestion 3. 5. Unnecessary to answer. 6. NO.7. No.

Action No.M.105 of 1983 - I. Not applicable. 2. Notappli­ cable. 3. There isno such enforceable duty.4. No.5. No.

I would makenoorder astothe costs ofany party. Actions No.M 101 of 1983 and No. M 103 of 1983 I. Would thedisclosure bythe defendants tothe Chief Commissioner of Police of the State of Victoria of the name of each of theplaintiffs identified as A..B.. C. D., E. and G. as a participant in the exercise amounttoabreach of the term of theagreement referredtoin par. 13 ("the term")1 Answer:

Yes. 2. Is the term: (a) unenforceable in so far as itpurports to prevent thedefendants fromdisclosing to the Chief Commissioner thename of each of thesaid plaintiffs; (b) enforceable in view of the national (67) (1980) 43 F.L.R. 129, atp.156; 29 A.L.R.228, atp.254. H.C.OFA. 1984.'---y-' A.F. HAYDEN.

Deane J. 600 HIGH COURT [1984. H.C.OFA. 1984.'--,---' A.I"­ HAYDE". interest in maintainingsecurity?

Answer: (a) Yes. (b) No. 3. Do the circumstances giverisetoa duty owed by the Commonwealth toeach of A., B., C. D., E.. G. and K. to treat as confidential information and in particular. exceptin so far as necessary tocarry out the functions of AS/S, not todisclose to any person: (a) thename, address, occupation or any otherparticular identifying orlikely to identify him as aperson whohasworked for AS/S; (b) any act orthing done by him in the course of his work for AS/S: notwithstanding thatsuch a duty prevents the defendants from disclosing tothe Chief Com­ missioner thenames of theparticipants inthe exercise?

Answer: There isnosuch enforceable duty. 4. Doestheanswer to any of theabove questions depend uponthejudicial determination of the allegations or any andwhich of them contained in pars. 37,38,39 and 40? Answer: No.

5. Are theplaintiffs identified as A., B., C, D.. E.. G. and K. entitledtoapermanent injunc­ tion inthe terms of the order made herein on 15 December 1983 or in any and whatlike terms?

Answer: No.

Action No. M. 102 of 1983 1. Wouldthedisclosure by thedefendants tothe Chief Commissioner of Police of theState of Victoria of the plaintiff's name as apartici­ pant in the exercise amount toabreach of the term of the agreement referredto in par. 27? Answer: Yes. 2. Istheterm: (a) unenforceable in so far asitpurports to prevent thedefendants from disclosing to the Chief Commissioner theplaintiff's name? 156C.L.R.] OF AUSTRALIA. (b) enforceable in view of the national interest inmaintaining security?

Answer: (a) Yes. (b) No. 3. Do thecircumstances give rise toaduty owed by the Commonwealth to theplaintiff totreat as confidential informationandinparticular.

except in so far as necessary to carry outthe functions of AS/S, nottodisclose to any person: (a) the name, address, occupation orany other particular identifying orlikely to identify him as aperson whohasworked for ASIS; (b) any actorthing donebyhim in his work for AS/S:

notwithstanding thatsuch aduty prevents the defendants fromdisclosing tothe Chief Com­ missioner thenames of theparticipants in the exercise?

Answer: There isnosuch enforceable duty. 4. Doestheanswer toany of the above questions depend uponthejudicial determination of the afIegations orany and which of them contained in pars. 32 and 34? Answer: No.

5. /s theplaintiff entitled to apermanent injunc­ tion in the terms of the order made herein on 15 December 1983 orinany and what like terms?

Answer: No.

Action No. M.I 04 of 1983 i. Wouldthedisclosure bythe defendants to the Chief Commissioner of Police for theState of Victoria of the name of each of theplaintiffs identified as H., I. and J. as a participant in the exercise amounttoabreach of the term of the agreement referredto in par. 17 ('the term'')?

Answer: Yes. 2. /sthe term: (a) unenforceable in so far as itpurports to prevent thedefendants fromdisclosing to 601 H.C.OF A. 1984.'--...--'A.\!. HAYDEl\. 602 HIGHCOURT (1984. H.C.OFA. 1984.'-.,.-' A.I', HAYDE". theChief Commissioner thename of each of thesaid plaintiffs; (b) enforceable inview of the national interest inmaintaining security?

Answer: (a) Yes. (b) No. 3. Do thecircumstances give rise tothe duty owed by the Commonwealth toeach of the plaintiffs totreat as confidential information and nottodisclose toany other person or body outside ASIS: (a) thename. address. occupation orany other particular identifying orlikely to identify him as aperson whohasworked for ASIS; (b) any actorthing done by him in hiswork for ASIS:

notwithstanding thatsuch aduty prevents the defendants from disclosing tothe Chief Com· missioner thenames of theparticipants inthe exercise?

Answer: There isno suchenforceable duty, 4. Do thefacts stated in pars. 11, 13 and 15 lead to the implication of either of theterms alleged by the said plaintiffs in par. 19? Answer: Unnecessary toanswer inthe light of theanswer toquestion 3, 5. Ifyes toquestion 4: (a) is each of the terms unenforceable in so far asitpurports toprevent thedefend­ ants from disclosing tothe Chief Com­ missioner thename of each of thesaid plaintiffs; (b) iseach of such terms enforceable inview of national interest in maintaining secur­ ity?

Answer: Unnecessary toanswer. 6. Do theanswers toany of the above questions depend uponthejudicial determination of the allegations orany and which of them contained inpars. 12, 14 and 16? Answer: No.

7. Are theplaintiffs identified as H..I. and J. 156C.L.R.) OFAUSTRALIA.

entitled toapermanent Injunction in the terms of the order made herein on 15 December 1983 or in anyand. what like terms?

Answer: No.

Action No. M.l 05 of 1983 1. Wouldthedisclosure by thedefendants tothe Chief Commissioner of Police of theState of Victoria of the name of each of theplaintiffs identified as A., B., e, D., E. and G. as a participant in the exercise amount toabreach of the term of theagreement referredtoin par. 13 ("the term 'J? Answer: Not applicable. 2. Isthe term: (aJ unenforceable in so far asitpurports to prevent thedefendants fromdisclosing to the Chief Commissioner thename of each of thesaid plaintiffs; (bJ enforceable in view of the national interest in maintaining security?

Answer: Not applicable. 3. Do thecircumstances give rise to aduty owed by theCommonwealth toeach of A., B., e, D., E., G. and K. to treat as confidential information andinparticular, except in sofar as necessary tocarry out the functions of AS/S, nottodisclose toany person:

(aJ the name, address, occupation orany other particular identifying orlikely to identify him as aperson whohasworked for AS/S; (bJ any actorthing donebyhim in the course of his work for AS/S:

notwithstanding thatsuch aduty prevents the defendants fromdisclosing tothe Chief Com­ missioner thenames of theparticipants in the exercise?

Answer: There isnosuch enforceable duty. 4. Doestheanswer toany of the above questions depend uponthejudicial determination of the 603 H.C.OFA. 1984.'---r--'A.V. HAYDEN. 604 HIGH COURT [1984. H.C.OFA. 1984.'-,.-' A.1'. HAYDE". allegationsorany and which of them contained in pars. 37,38,39 and 40? Answer:No.

5. Are theplaintiffs identified as A., B., C, D., E., G. and K. entitled toapermanent injunc­ tion inthe terms of theorder made herein on IS December 1983 orinany and what like terms?

Answer: No. No order as tothe costs of thecases stated. Solicitors for A., B., c., D. and E., EllisonHewison & Whitehead. Solicitors forF., Arthur Robinson & Hedderwicks. Solicitors forG., Blake & Riggall. Solicitors for H.,!. and J., Gillotts.· Solicitorsfor K. and L., Hamiltons. Solicitors forfirst, second and fourth defendants, Australian Government Solicitor. Solicitorsforthird defendant, Arthur Robinson & Hedderwicks. Solicitor forthe intervener, R. 1.Lambert, Acting Crown Solicitor for the State ofVictoria.

J.M.B.