Commonwealth of Australia v Toohey

The Commonwealth of Australia, represented by Mr S.P. Charles QC, applied to the High Court for an injunction against Mr Toohey. The dispute concerned Mr Toohey's possession of and purported disclosures relating to a significant number of documents, described as "The Hayden Papers," which the Commonwealth alleged were confidential and their publication inimical to Australia's public interest. The Commonwealth sought to prevent further disclosure of these documents.

The legal issues before the Court included whether Mr Toohey had the authority to possess the documents in question, and whether the publication of comments and information contained within them, particularly concerning Indonesia, Malaysia, Japan, and communications with Mr Schultz, would cause damage to Australia's public interest. The Court was also required to consider the nature of the relief sought, specifically whether an injunction was appropriate given that some disclosures had already occurred and the full extent of the documents held by Mr Toohey remained unknown to the Commonwealth.

The Commonwealth argued that the documents were confidential and ordinarily dealt with under the Archives Act. They pointed to specific passages within "The Hayden Papers" article, referencing comments relating to Indonesia, Malaysia, Japan, and communications with Mr Schultz, as examples of material whose disclosure was detrimental to Australia's public interest. The Commonwealth sought injunctive relief covering all the material, including an estimated 10,000 documents, due to the potential for further damaging revelations from the undisclosed portion of the collection. The Court noted that damage from disclosures already made had likely been incurred.