Commonwealth of Australia v Toohey

The Commonwealth of Australia sought an interim injunction from the High Court of Australia to restrain the defendant, Mr. Toohey, from publishing material allegedly injurious to the national interest and individuals. The application was made ex parte and was considered urgent due to the apprehended imminent publication of the material. The proposed publication concerned intelligence operations of the Australian Secret Intelligence Service (ASIS) in another country and the identity of an ASIS officer involved.

The central legal issues before the Court were whether the proposed publication of information relating to ASIS operations and personnel would breach an obligation of confidentiality owed to the Commonwealth and whether such publication would be inimical to the public interest. The Commonwealth asserted that the information was confidential by its nature, that its disclosure would necessarily involve or result from a breach of confidentiality, and that the defendant had no authority to publish it.

The Court was presented with an affidavit from the Minister for Foreign Affairs and Trade, who is responsible for ASIS. The affidavit explained that ASIS's primary function is to obtain foreign intelligence for the protection and promotion of Australia's interests, which can only be effectively performed if its activities and officers remain secret. The Minister deposed that information regarding ASIS activities and officer identities is confidential and should not be disclosed except to authorised persons. The Commonwealth argued that publication by the defendant would constitute a breach of confidentiality and be contrary to the public interest.