Her Majesty's Attorney-General in and for the United Kingdom

[1988] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll4 of 1987

B e t w e e n -

HER MAJESTY'S ATTORNEY-GENERAL

IN AND FOR THE UNITED KINGDOM

Appellant

and

HEINEMANN PUBLISHERS AUSTRALIA

PTY LIMITED

First Respondent

and

PETER MAURICE WRIGHT

Second Respondent

MASON CJ

Wright(2)

WILSON J

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 MARCH 1988, AT 10.19 AM

(Continued from 8/3/88)

Copyright in the High Court of Australia

ClTl/1/HS 107 9/3/88

MASON CJ:	Yes, Mr Turnbull.
MR TURNBULL:	Before my learned friend, Your Honour, with

Mr Simos' leave, there is a document that has been

distributed to che bench entitled Consolidated

Particulars of Public Domain. This is in

substitution for the exhibit 52 which begins at

page 385 of the second confidential appeal book. Owing to an error it was not included. The one

in the appeal book refers to pages of the original

manuscript which was exhibit 31 at the trial. This

one has been amended and agreed between the parties

to refer to, in typed form, the pages in the published

book, which Your Honours have a copy of and which

is obviously easier to read than the original

typescript and in longhand there is the

cross-reference to exhibit 31, and you can see it

goes through every page of the book indicating where
the material in the book was previously published.

There are a number of abbreviations there and I will

hand up a guide to those later in the proceedings.

Thank you, Your Honours.

~.A.SON CJ:  Thank you, Mr Turnbull. I should say that the Court

will proceed on the footing that the order made by

the Court of Appeal in relation to the confidential

books remains in force. Yes, Mr Simos.

MR SIMOS:  If Your Honours please. Your Honour the Chief Justice

asked us yesterday whether we had been able to find

any authority in which a court had considered the

public interest of another country. We had

previously, and it had escaped my mind.yesterday, found

a case which, if I may put it this way, is perhaps in
that line of country, and it is on the list so

Your Honours should have it. It is called

BUTTES GAS AND OIL CO V HAMMER, (1981) 1 QB 223.

That is the Court of Appeal decision. If Your Honours

have that to hand - if Your Honours would go to

page 224D in the headnote:

Pleadings were exchanged and the defendants

sought inspection of certain documents

referred to in the plaintiffs' pleadings.

In May 1978, by agreement the plaintiffs

produced a list of documents which were

or had been in their possession, custody

and power; but they objected to produce 14 categories of documents and certain of

the documents referred to in the pleadings

on the grounds that their production would

be contrary to the legitimate interests of
foreign sovereign states (described as

"foreign state privilege") or alternatively

were protected by legal professional privilege.

They included legal advice to the Ruler of

Sharjah; communications between him and

Her Majesty's Government and between him and

ClTl/2/HS	108	TURNBULL	9/3/88
Wright(2)

other sovereign states in the Gulf;

communications between him or his legal

advisers and Her Majesty's Government

and the mediator; a confidential note

prepared by the relevant British government

department at the request of the ruler's

English solicitors on Iranian claims to

sovereignty over Abu Musa; communications

between the plaintiffs and Her Majesty's Government about drilling rights off the

shores of Abu Musa; and correspondence -

and so on.

(Continued on page 110)

ClTl/3/HS	109	9/3/88
Wright(2)

MR SIMOS (continuing): And then it was held by the Court of

Appeal, as Your Honours will see on page 225 at B:

Dismissing the appeal and allowing the

cross-appeal, (per Donaldson and Brightman L.JJ.)
that the court would recognise a public interest
in the United Kingdom in refusing to order
disclosure of documents addressed to or emanating
directly or indirectly from the ruler of a

sovereign state, concerned with international

disputes over territorial boundaries and the

sovereign rights of independent states, which had

been passed to a party to private litigation
under the seal of confidence; nor should an English

court be seen to be forcing the disclosure of

such documents for the ostensible purpose of

pronouncing, albeit indirectly, on a politically

sensitive territorial dispute between foreign

sovereign states.

Though I would not -

said Lord Denning -

subscribe to the "general principle" suggested
by the Foreign Office ..... nevertheless it is in
the interest of the comity on which sovereign
immunity is founded, the court in the exercise
of its discretion to order or refuse discovery

should exercise self-restraint by declining to

become arbiter in what is at bottom a dispute

between sovereign rules as to their territorial

waters.

Then there is a passage dealing with those matters,
Your Honours, at page 256 at C in the judgment of

Lord Justice Donaldson, who says:

The public interest in the maintenance of

international comity is standard of international

behaviour which can be epitomised as "do as you

would be done by," is very great. The courts

are wholly independent of the executive, but

they are an emanation of the Crown and they

act in the name of the Crown. Giving the

fullest weight to the public interest in the

achievement of justice between litigants, I have

no doubt that this is more than counterbalanced

in this case by the public interest in refraining,

in the name of the Crown, from ordering the
disclosure for inspection of the documents, the
subject matter of the application.

And if Your Honours would just look at the rest of that paragraph.

CIT2/l/JM	110	9/3/88
Wright(2)

MR SIMOS (continuing):  Then Lord Justice Brighton at

page 265, letter A, also deals with it, Your Honour.

So it is perhaps not directly in point in relation to Your Honour the Chief Justice's question but it

may be of relevance; we are still looking, Your Honours.

MASON CJ:  Yes, thank you.

BRENNAN J: It is right, is it not, that Their Lordships in

this case put it on the basis of the public interest

of the United Kingdom?

MR SIMOS:  Yes, they did, Your Honour. That is perfectly true, Your Honour. I should add that the case did

go to the House of Lords where it was dealt with on

another point, namely, that the whole dispute the

subject of the proceedings was not justiciable

for various reasons.	So the House of Lords did not
deal with this question, Your Honour.	Now, Your Honours,

in relation to matters that both Your Honour

Mr Justice Brennan and Mr Justice Deane put to me

yesterday, that is to say, in the case of Your Honour

Mr Justice Brennan, what if, as I understood it,

a government of a hostile nation sought relief

against one of its secret service or security service

employees in the courts of Australia, and in the

same context, perhaps, Mr Justice Deane's question,

what about secret societies whose objects may have

been contrary to public policy or contrary to the

public inter.est.

We would submit that the way the matter would

be dealt with would be at the level of a defence,

namely, that the party seeking to disclose the

confidence against whom an injunction was sought

would claim as a defence that it was in the public

interest that the confidential matter be disclosed.

And in the case of matters of national security it
might be relevant, no doubt it would be relevant, to

have evidence of what the view of the government

of Australia was.

(Continued on page 112)

ClT3/l/SR	111	9/3/88
Wright(2)

MR SIMOS (continuing): In particular, in relation to a former

security service agent of the Soviet Union, although

one would imagine that prima facie it would be in

the public interest that he could publish what he

wished to, and the courts would regard that as a

defence to an action by the Soviet Union to restrain

him or some hostile country to restrain him, it is

not inconceivable that the Australian Government

might take the view for some reason or other that it

was not in the Australian public interest that this

former hostile security service agent should be

be permitted to disclose what he wants to disclose.

But whatever the postion be in that respect, we

submit that the answer would be in the way the
court dealt with the defence that the disclosure

was or was not in the public interest.

BRENNAN J:  Why should a question of public interest await

the defence of a party? Why would the court itself

not have to address the question of public interest,
and whether or not a party did raise the issue,
by what means does a court inquire into the hostility,
or otherwise, of another country or the public

interest of Australia in protecting the secrets

of the secret service of another country?

MR SIMOS:  Well, Your Honour, we would submit it would be

guided by evidence from the Australian country.

BRENNAN J: Which might be in itself a source of the gravest

international embarrassment to the Australian

Government?

MR SIMOS: Well, Your Honour, that is a matter in respect

of which the government could express its own
opinion. Whether the court - we would not suggest
that the court would be absolutely bound by an
expression of opinion by the Australian Government
but prima facie the court would accept the view

of the Australian Government as to whether the

proceedings or any aspect of them and any possible

result would or would not cause embarrassment to

the Australian Government. So the Australian

Government, we submit, could give evidence on that

aspect of the matter, the general aspect, as well
as the specific aspect involving the particular

information that was sought to be disclosed.

(Continued on page 113)

ClT4/l/MB	112	9/3/88
Wright(2)

MR SIMOS (continuing): And, indeed, a little later we will

.	be submitting that in relation -Your Honours will recall Mr Justice McHugh's decision to the effect
that the Australian courts would not entertain actions relating to the public interest of a foreign couritry because an adverse verdict might

produce diplomatic consequences.

We would submit that where the Australian

Government comes along to support the action of

the foreign government there can be no question

of even an adverse decision creating a diplomatic

incident because the losing foreign government would know

that the Australian Government had supported it

and, recognizing that the courts were independent,

would, no doubt, accept the decision of the court

if it was adverse, just as the Australian Government

would have to.

Now, Your Honours, in relation to some questions

that, I think, amongst others, Your Honour

Justice Gaudron raised with me about truth and

falsity, and I think Mr Justice Deane also raised

some questions about this, our submission is this,

that if the speaker or the publisher of the statement
identifies himself as a member of the service then,

regardless of whether what he says is true or false,

what we have called non-contents detriment arises.

It may also be that there is contents detriment

even in respect of an untrue statement because
even untrue statements, prima facie, cannot be

denied and, as Your Honours know, I think certainly

in Great Britain and in Australi~ the. rule of practise

is that the government does not deny or affirm

facts relating to the national security. But

that aside, any statemen~ even a false statement

which identifies the speaker as a member of the

service will cause, at the very least, what we

have called non-contents detriment.

Now, if someone does not identify himself as a member of the service and makes a false statement,

or even a true statement, then it may be that no
detriment would flow from that but otherwise even

false statements can cause detriment, in our

respectful submission. In relation to the example,

I think, that Your Honour Mr Justice Deane gave

as to whether an officer could sue for salary,

I think my answer was that he could and it would not

cause detriment and the court could deal with the

matter in camera if it thought it appropriate.

(Continued on page 114)

ClTS/1/AC	113	9/3/88
Wright(2)

MR SIMOS (continuing): It might even be that when he went

to his solicitor he did not have to disclose

exactly who it was he was working for. He could

say, "I'm a public servant, the Crown, the

government, has failed to pay me last week. I

want you to sue the government as the government

rather than as a particular department and serve the Australian Government Solicitor." But either in the way I put it to Your Honour yesterday or

perhaps the way I am putting it today it could

be dealt with.

As to Your Honour Mr Justice Deane's question

about "Can an officer tell his or her spouse that

he is going to work?", I am instructed that that

is authorized. And the identity of the employer

can be disclosed to the spouse, Your Honour.

Your Honours, in relation to the type of secret

society example that Your Honour Mr Justice Deane

put to me, we would draw Your Honours' attention

to two cases, both of which are - Your Honours

need not go to them; I am not inviting Your Honours

to go to them at this stage or at all. In Gurry

Breach of Confidence, a textbook, 1984, page 335, he

deals, under the heading of "Community Interests"

with a subheading of "tn.atters medically dangerous

to the public".	If I could just read about
10 or 15 lines from pages 334 and 335.	He says:

There are a number of statements in the cases

which extend the range of the defence of just

cause or excuse beyond crimes and civil wrongs

to a category of actions which are 'destructive

of the country or its people'. The chief

proponent of this wider view of the defence

has been Lord Denning. In FRASER V EVANS -

and so on. And then, under the heading "matters

medically dangerous to the public" the author says

this:

It seems well established that there

1s just cause or excuse for the disclosure

of information about an event or practice

which is medically dangerous. In HUBBARD

V VOSPER Lord Denning MR considered that the defence could apply to the disclosure of

details concerning the practice of

scientolo9y, which the defendants claimed	involved medical quackeries of a sort which
may be dangerous if practised behind closed
doors'. As the action was an interlocutory
motion, however, it was unnecessary to decide
whether the defence was satisfied. But in
CHURCH OF SCIENTOLOGY V KAUFMAN Goff J. held
that the defence was established on similar
facts. There, the defendants proposed to
publish a book written by the first defendant which contained information on scientology which the plaintiffs considered to be confidential.

ClT6/l/ND	114	9/3/88
Wright(2)

MR SIMOS (continuing):

The first defendant claimed that he had

suffered a mental breakdown as a result of

attending courses conducted by the plaintiffs
on scientology. Goff J held that the

publication was justified because, while

it was 'only a matter of inference that the

first defendant's breakdown was due to

Scientology', that inference was 'irresistible'.

It was, therefore, in the public interest that

this practice should be exposed.

So we would submit, Your Honours, following that

approach, that if there was a secret society and

one of its members wanted to disclose something

about the society in respect of which he had been

sworn to secrecy, if it was in the public interest

to disclose it he could do so .

Now, Your Honours, I had been dealing with the balancing exercise in the context of paragraph 3

on page 4 of the outline of argument and it is our

submission that the evidence of Sir Robert -Armstrong

and Mr Codd, as to the detriment which would flow

to the United Kingdom public interest and the

Australian public interest, clearly outweighed any

interest in the Australian public being informed

of the contents of Spycatcher. Now, the evidence

of Sir Robert Armstrong is too long, of course,

to take Your Honours to but it is set out

principally in his affidavits which are contained

in volume 1. But I would like to, if I may, take

Your Honours to the evidence of Mr Codd, the

affidavit of Mr Codd, which is in volume 1 page 91.

He says, Your Honours, that he is the:

Secretary of the Department -

on page 91 -

of the Prime Minister and Cabinet and

Secretary to Cabinet of the Commonwealth

..... since February 1986.

He is:

Chairman of the Secretaries Committee on

Intelligence and Security, which is the

principal officials body responsible for

advising relevant Ministers in relation to

security and intelligence matters.

He says he is:

authorised by the Government of the Commonwealth

..... to make the affidavit .

ClT7/l/MB	115	9/3/88
Wright(2)

He sets out what the agencies are in relation to

·Australia's national security and he gave evidence

that all these agencies had been consulted in

the course of and prior to the preparation and

swearing of his affidavit.

(Continued on page 117)

ClT7 /2/"M.B	ll.6	9/3/88
Wright(2)

:MR SIMOS (continuing):  He says in paragraph 5 on page 93:

The ability of Australia's security

and intelligence agencies to protect

information about their investigations
or operations from unauthorized

disclosure is critical to their

effectiveness. For this reasons members

and former members ..... are under an

obligation not to make unauthorized

disclosure of information - ·

et cetera. Paragraph 6:

In the performance of their functions,

Australia's security and intelligence

agencies have had and continue to have

liaison relationships with similar

agencies ..... including ...... United	Kingdom
and Northern Ireland.	Such relationships

involve co-operation, and exchange of

information, which are of benefit to

each country.

Th~n in paragraph 7, he quotes from Mr Justice Hope's

Royal Commission report as to liaison and that is

set out on page 94.	Then at the top of page 95,
Mr Jusitce·Hope says:

In my view, these liaison relationships

contribute significantly to ASIO's

overall efficiency. They can help

minimize the costs -

and so on and:

are in the national interest.

Mr Codd says at letter Jon page 95:

I agree with the above view, which in

my opinion applies mutatis mutandis also

to the liaison relationships of Australia's
other security and intelligence agencies.

The abovementioned relationships -

paragraph 8 -

depend for their effectiveness upon a

mutual understanding and confidence that

information provided will be kept

confidential by the recipient.

I emphasize that, Your Honours, because Your Honours

have already observed that we place great reliance

on this ability to maintain confidentiality and

ClTS/1/SR	11 7	9/3/88
Wright(2)

the fact that information will not be shared with

someone who cannot guarantee to maintain confidentiality.

tn paragraph 9, Mr Codd says:

Unauthorized disclosure by a member or

former member of a similar agency - meaning for example the British Security Service -

of investigations by or operations of

that agency may seriously damage Australia's

national security for the following reasons.

So, if I could just pause there to observe, as

we submit, this is a primary detriment to Australia

arising from disclosures by a similar agency overseas.

This is not a derivative detriment and Your Honours

will understand the significance of that in a
moment because Mr Justice Kirby held, erroneously

we submit, that the whole of Mr Codd's evidence was

derivative, that is based upon Sir Robert Armstrong's
evidence, so that if you could disregard

Sir Robert Armstrong's evidence you can also disregard

Mr Codd's evidence. Now, we submit, that in this

paragraph 9, the matters of detriment that Mr Codd

is referring to are not derivative:

(a) such disclosure may add to the knowledge of intelligence services and terrorist

groups hostile to Australia. A

comprehensive publication by a member or

former member of a similar agency would

be of significant use to such services

and groups;

(b) should the member or former member succeed in such disclosure in Australia -

now this is the foreign services former employee

in Australia -

despite the efforts of the agency -

meaning the overseas agency -

to protect its information, disaffected

members or former members of Australia's

security and intelligence agencies may

be encouraged to make like disclosures
if they saw that it could be done without

penalty despite the obligations of

confidentiality that apply to them;

such disclosure, if permitted in Australia

may lead similar agencies to believe that

sensitive information provided to Australia's

ClT8/2/SR	118	9/3/88
Wright(2)

security and intelligence agencies is

not capable for appropriate protection

from disclosure in Australia and this

would impair Australian access to

information important to Australia's

national security.

In addition to what I have stated in

paragraph 9 -

and I emphasize the words "in addition" -

unauthorized disclosure by a member or

former member of a similar agency .....

may seriously damage Australia's

national security for the following

reasons:

(a) such disclosure may result in a

loss of confidence by Australia, and by

the other countries involved in the

liaison relationship, in the ability

of the similar agency to keep shared information confidential. Such loss of confidence may impair the effectiveness
of the liaison relationship and in

particular may result in a decrease in

the quality of information shared between

agencies pursuant to the liaison

relationship and, accordingly, a decrease

in the quality of information received

by Australia.

(Continued on page 120)

ClT8/3/SR	119	9/3/88
Wright(2)

MR SIMOS (continuing):

Such disclosure may seriously damage Australia's

liaison relationship with the similar agency

even if the information disclosed is not

information provided pursuant to a foreign liaison

relationship. This is so because the mere fact

of the unauthorised disclosure indicates that the
agency is unable to protect the confidentiality of
its information. Moreover, the agency's other

sources, domestic as well as foreign, would have

a similar loss of confidence, thereby further

prejudicing the effectiveness of that agency and

the value of its contribution to liaison

relationships. In turn, sources of intelligence

within Australia who are aware of the liaison

relationship with the similar agency would be
reluctant to provide confidential information to

Australia's security and intelligence agencies.

I have read the manuscript ..... For the above

reasons I am of the opinion that ~ublication

of the manuscript, except chapters 2 to 4

inclusive -

which relate to events prior to Mr Wright's employment
with MIS -

would prejudice Australia's national security and

would thereby be contrary to Australia's public

interest.

Could I just take. Your Honours to a few

passages in the same place in Mr Codd's cross-examination

in volume 2, page 455B:

You have told us in paragraph three of your

affidavit you are authorised by the Government

of the Commonwealth to make this affidavit.

Who authorised you? A. The Security Committee of

the Cabinet.

Q. And when was that authorisation given? A. Shortly before I s.igned the affidavit.

Q. You mean hours before or days before? A. Within

one or two days ..... .

Q. Who sits on the Security Committee of Cabinet?

A: !he Prime Minister, the Attorney General, Spe~ial

M~n~ster of State, Minister for Foreign Affairs,

Minister for Resources and Energy, Minister for Defence.

CIT9/l/JM	120
Wright(2)	9/3/88

Q. Did you write this affidavit yourself,

Mr Codd? A. I had some help in the drafting of it.

Q. Who helped you to draft it? A. There

was consultation with Australian agencies involved

but the matter went to the Security Committee of

Cabinet as I have already explained.

Q. So did someone on the Security Committee of

Cabinet write the affidavit? A. No. It is an affidavit that I have signed with the authority

of that Committee .

Q.	And you take full personal responsibility
. . • . . ? A.	I do.

And then there are some more questions along those

lines.

Your Honours, Mr Justice Street dealt with

Mr Codd's evidence in volume 7, 1538R:

I come, then, finally to this balancing exercise. On the one hand there is the powerful evidence of

Mr Michael Codd ..... He states that he was

authorised by the Government of the Commonwealth

of Australia .....

1539F:

In broad sunnnary in the earlier paragraphs of the affidavit Mr Codd emphasised the importance of protecting information -

and so on. 1539R:

The first of such specific reasons is that

such disclosure may add to the knowledge of

intelligence services and terrorist groups

hostile to Australia. The second is - and so on. 1540 I: Mr Codd was cross-examined by Mr Turnbull

along some of the lines of cross-examination

that were also pursued with Sir Robert Armstrong -

although not at quite such length.

And then there are passages there in which Mr Codd

is asked, "What specific passages do you look at?".

Mr Codd says:

I have not examined or come to -

This 1540R -

a judgmmt on particular passages in the lxx:,k. It has been looked at as a whole and it is a class of document, being a comprehensive account of operations and techniques used by a

former employee over a period of employment in the secret
service, m.ich give rise to the concern set out in

paragraphs 9 and 10.

CIT9/2/JM	121
Wright(2)
MR SIMOS (continuing):

Q. But, Mr Codd, the Australian Government has not requested that any passages from the

book be deleted, has it? A. It would not

be appropriate for the Australian Government

to do that -

middle of the page, this is K:

Q. And do you say to the court that every paragraph in the chapters objected to by the

British Government would, if published, be

detrimental to the national security of

Australia? A. No. I have said that the

manuscript as a whole is a matter that was

at issue, as I understand it, in these hearings

and that is what has been examined by me.

Q. Mr Codd, did you receive advice from

the Australian Security Intelligence Organisation

concerning this book? A. There were consultations

with the Australian Agencies involved, yes,

certainly.

Q. Did the Australian Security Intelligence

Organisation tell you that every paragraph in this book was as objectionable as every

other one? A. I have already explained that

the book or the manuscript has not been examined

paragraph by paragraph, nor any attempt made

to judge whether any particular part of it

should or should not be suppressed.

Q. And why have you not done that? A. Because

it is not our role to do that. That is a

matter going to authorisation which, as I

said, is properly for the British Government

and its former employee.

And then 1542G:  Q. Why are you not prepared to indicate

to his Honour which passages of the book you

regard as particularly objectionable?	A.	The
manuscript has been examined as a whole.

It represents a comprehensive account of the

operations and techniques used by an insider

and is therefore a class of document that

gives rise to concerns set out in pars 9 and 10

of my affidavit."

..... The only comment made by Powell J upon

the credibility of Mr Codd's evidence, was:

ClTl0/1/AC	122	9/3/88
Wright(2)

"Mr Codd's evidence was clearly directed

to supplementing the evidence of Sir Robert

Armstrong by seeking to demonstrate, by what

seemed to me to be, at times, a rather tortuous
process of reasoning, that, if the publication
of Mr Wright's manuscript were not restrained,
the interests of the Commonwealth would be

detrimentally affected; thus, he suggested that if publication of the manuscript were

not restrained, friendly foreign intelligence

services might come to believe that ASIO and

ASIS were not 'leak-proof'."

If I may be permitted to read the next two paragraphs,

which is the end of this section:

It is plain from the quoted extract of

the cross-examination of Mr Codd that, although
in one sense the objection of the Australian

Government might be described as a class objection, the actual objection was very much directed to the contents of Spycatcher as

a particular book falling within the class.

This same observation I have already made

in respect of the evidence of Sir Robert Armstrong

as to the objection of the UK Government.

Mr Codd was not effectively shaken either

on the views he stated in his affidavit or

on the evidence that he gave in this quoted

extract. He is an entirely credit-worthy,

responsible witness. He spoke with the voice

of authority of the Australian Government.

Although in law not absolutely binding on

the Court, this must be accorded a very high
degree of deference and weight insofar as
it expresses to the Court a considered opinion

that the publication of Spycatcher would prejudice

Australia's national security and Australia's

public interest.

And then in the subsequent sections he said, very

shortly, Your Honours will see - T:

I have already stated my opinion that -

the defences -

would not be adequate countervailing considerations

in England to justify overriding Sir Robert

Armstrong's concern expressed on behalf of

the UK Government. I do not regard them as

adequate to override the concern of the Australian

Government expressed through its proper officer -

et cetera.

ClTl0/2/AC 123 9/3/88

Wright(2) (Continued on page 123A)

Now, could I hand Your Honours a submission

1n relation to detriment?

MASON CJ:	Yes.
MR SIMOS:	And the balancing exercise, as it were, and that

will enable me to be shorter, Your Honour.

It is divided into two sections, Your Honours,

A, namely, is there detriment and B, on page 2,

is that detriment outweighed by the public interest

in publication? Now, we have made the point in

paragraph 1 that Sir Robert Armstrong's affidavit

includes both contents and non-contents detriment.

2, the respondents' case is that Sir Robert Armstrong's

evidence should be rejected upon the basis that

there can be no detriment following from publication

of Spycatcher because its contents are largely

already in the public domain.

In answer to this we submit that as the respondents

assert, the two books which contain the bulk of

the prior material are those by Chapman Pincher,

Their Trade is Treachery and Too Secret Too Long.

There is no issue that the second of these did not contain much information that had not been

included in Their Trade of Treachery. However,

Pincher's source for Their Trade is Treachery was

Mr Wright himself. Thus, on the respondents' own

case, the bulk of the prior material was published

in consequence of Mr Wright's disclosures.

(Continued on page 124)

ClTl0/3/AC	123A	9/3/88
Wright(2)

MR SIMOS (continuing): If I could pause there to give

Your Honours the references to the evidence on

that. Your Honours need not go to it, I can read

it quite quickly. It is interrogatory 40 and the

answer thereto in volume 3 on page 648, question:

Look at the book written by Chapman Pincher

entitled "Their Trade is Treachery" and answer

the following interrogatories -

(a) Prior to the publication of this book,

did the second defendant disclose to Chapman

Pincher or to anyone on his behalf any

information which the ~econd defendant
obtained in his capacity as an officer of

the Service?

(b) If the answer to (a) is yes, was any such

disclosure made by the second defendant in

writing?

Answer:

(a) Yes.

In other words, he did disclose.	(b), was it in
writing? -

No. So far as I can recall any information

provided to Mr Pincher was provided by me
orally, during a three day visit of his to

Tasmania, although there may have been some

correspondence between us, but I no longer

have any copies of it.

In paragraph (b), we submit, and my learned friend

denies, that Mr Wright was in breach of his

obligations to the Crown in so communicating.

We submit that he cannot be permitted to rely on

those disclosures or the public domain material

because that would enable him to profit from his

own wrong. Moreover, we say, in paragraph (d),

publication by an officer or former officer, even

of material previously published causes additional

and different detriment arising from the fact that

the publication by an officer or former officer

authenticates the previously published material.

In addition, of course - now, all those earlier

paragraphs, Your Honour, are dealing with contents

detriment. But, of course, whatever the position

is of our contents detriment, the non-contents

detriment is still there which we refer to in

paragraph (e). It follows, we say in paragraph 4,

even i~which is denied, full weight is given to

the respondents' public domain arguments, that

ClTll/1/ND	124	9/3/88
Wright(2)

there remains non-contents detriment to the

efficient functioning of the service and thus

to the United Kingdom public interest.

And then, at the top of the page_ 5, dealing with detriment to the Australian public interest, by reason of the impairment of the efficient

functioning of the British service, that is the

derivative one, but (b), as we have submitted a

moment ago, independently of the liaison relationship,

see paragraph 9 of Mr Codd' s affidavit - yes, that

- the page reference missing_ is 95 to 96,

Your Honours - in paragraph 5(b) on the top of

page 2.

In paragraph B, we deal with the arguments

and, in particular, Mr Justice Kirby's arguments
as to why the detriment to the United Kingdom public

interest and the Australian public interest should

be regarded as being outweighed by the Australian

public interest in disclosure, in publication of

Spycatcher.

(Continued on page 126)

ClTll/2/ND	125	9/3/88
Wright(2)

MR SIMOS (continuing): Paragraph 2, Mr Codd's evidence was

that publication of Spycatcher would be detrimental

to the national security of Australia. Accepting,

as a matter of law, that Mr Codd's evidence is not

conclusive, is, nevertheless, no basis upon which

it could be rejected. Mr Justice Kirby held, in

effect, that Spycatcher - I paraphrase, but I think

His Honour did use those words, amongst others -

contained lessons to be learned which could be of

benefit to Australia, but it is plain that Mr Codd,

the security committee and the agencies must have
taken this into account in reaching their conclusion

that publication would be detrimental to the

Australian national security. In these

circumstances, we submit Mr Justice Kirby was not

entitled to reject the evidence of Mr Codd.

Mr Justice Kirby, we say in paragraph 6, founded

his rejection of Mr Codd's evidence upon the view

that it was based upon derivative of

Sir Robert Armstrong's evidence of detriment to the

United Ki~gdom public interest which evidence, in turn,

His Honour rejected upon the basis that there could be

no detriment to the United Kingdom public interest

arising from the publication of Spycatcher of material

previously published by others. So pausing there,

His Honour was rejecting Sir Robert Armstrong's

evidence upon the basis of contents detriment but as

we have submitted, although we do not agree with that,

even if that is right and it can be rejected because

the contents have been previously in the public domain,

His Honour says nothing about the non-contents detriment

that both Mr Codd and Sir Robert Armstrong rely upon.

So that was the basis upon which His Honour

rejected Mr Codd. In other words,

His Honour Mr Justice Kirby rejected Mr Codd, one,

not have rejected Sir Robert Armstrong's evidence, and

because he rejected Sir Robert Armstrong, and two,

because he said Mr Codd's evidence was highly derivative.

two, even if that is wrong, Mr Codd's evidence was not

highly derivative, and that is what we say in
paragraph 8.	In any event, Mr Codd's evidence was not

wholly based upon Sir Robert Armstrong's evidence, but

was also independent of it.

To recapitulate, Mr Justice Kirby was not

entitled to take it upon himself to decide that
publication of Spycatcher would not cause detriment

to the public interest of Australia and the United

Kingdom contrary to the evidence of the two persons

best qualified to express views on those matters on

behalf of their respective governments. Then in

paragraph 10 we refer to another support that

Mr Justice Kirby relied upon for his rejection to

Mr Codd's evidence and, as we understand His Honour's judgment, the reasoning was Mr Codd had based his

ClT12/l/HS	126	9/3/88
Wright(2)

evidence upon the proposition that if Mr Wright were

not restrained it would be perceived - Your Honours,

·could I pause here. This, if I may say so - I hope

everything I have said is important, but this

is particularly important because this was also the
basis upon which Mr Justice Powell, as we understand

his judgment, rejected Mr Codd's evidence, and we

submit it is a totally unconvincing and fallacious

line of reasoning.

We submit that both Mr Justice Powell and

Mr Justice Kirby's line of reasoning was this.
Mr Codd had based his affidavit upon the proposition

that if Mr Wright were not restrained it would be

perceived that the British Security Service was unable
to maintain the confidentiality of material received
by it in confidence with consequent detriment to the

service and thereby to the Australian public interest.

This perception, however, already existed as a result

of prior publications. Therefore, not to restrain

Mr Wright from publication of Spycatcher would make

no difference to that perception, would not cause any

detriment to the British Security Service or to the Australian public interest. In other words, having regard to the prior publications, so the argument goes,

everybody knows that the British Security Service cannot

protect confidentiality, so what is the point of

unauthorized publications, and it simply will not

stopping Mr Wright from publishing because that is only

going to be another example of the inability of the

make any dilference.

(Continued on page 128)

C1Tl2/2/HS	127	9/3/88
Wright(2)

MR SIMOS (continuing):  Now, as we have said in paragraph 11

-this line of reasoning is in error and that whatever

the perception of the inability of the service to

protect confidentiality before the publication of

Spycatcher, the publication of Spycatcher would

inevitably have caused others to have even less

confidence than before in the ability of the service

to maintain confidentiality. I should, perhaps,

just take Your Honours to two or three passages

in Mr Justice Kirby's judgment where this line of

reasoning is manifested. At the same time I will

give Your Honours references to the other bases of Mr Justice Kirby's decision as to detriment.

If I could just say this: there are really three

bases that Mr Justice Kirby relied upon. The three

bases are that everything is in the public domain

and, therefore, Sir Robert Armstrong is wrong;

the prior publications have already caused the

loss of confidence and another publication is not

going to make any difference and, thirdly, there

are lessons to be learned for Australia.

Now, Mr Justice Kirby's judgment is in volume 7. Your Honours, if I could start at page 1613H.

His Honour says:  ·

Clearly, it was the perception of this inconsistency

between the asserted arguments of the appellant

in the case and the practice of the appellant in

numerous earlier and recent instances -

the practice been referred to, Your Honours, as

disposed to, was that there was a policy to prevent
disclosure and prevent books and matters of the

kind without authority and His Honour is saying here,

"Well, that may have been the policy but it was not

the practice."

that led His Honour, .. with_ the aid of the

schedule analysing the manuscript -

and the schedule analysing the manuscript is the

schedule relating to public domain -

to the conclusion that ..... Spycatcher would involve

no relevant detriment. I can only say that

having read the book and having looked

carefully at a large sample of the numerous

other publications referred to in the
confidential schedule, I reach the same

conclusion.

So at page 1613, we submit, His Honour is saying,

"Well, Mr Justice Powell held and I agree that there

was no relevant detriment because everything was

already in the public domain." Then at page 1621

His Honour refers again to the prior publications, at letter T:

ClT13/l/MB	128	9/3/88
Wright(2)

What is the picture that emerges from this

series of publications - and the very large

number of additional publications -

et cetera.

I consider it to be this.

And then he goes on and says:

Partly because of the enormity of the

scandals which had surrounded the defections
of Burgess, MacLean and Philby, partly because

of the belated discovery of the involvement of

Sir Anthony Blunt ..... partly by analogy with

the more open and formal arrangements adopted

in the United States for constitutional reasons -

and so on -

a market developed for material about MIS.

(Continued on page 130)

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MR SIMOS _(continuing):

It was a market which demanded satisfaction.

Against this demand, the old-fashioned

tradition of total, permanent and absolute

secrecy ..... began to melt. To some extent

MIS itself contributed ..... by authorising - and allowing and so on:

It undermined the total blanket.

Then eventually at the bottom of page 1623,

His Honour says:

Because the overwhelming bulk of that

material is already in the public domain,

and was so when Spycatcher was commissioned

by Heinemann and written by Mr Wright,

I do not believe that those matters in it

should now be suppressed.

At page 1633, His Honour deals with the Australian

public interest. He says:

the relevance of those disclosures to
the defences which this country should

build against similar treason, deception

and error, I regard it as virtually

impossible, in the circumstances, for the
appellant to overcome the defence of

public interest.

So he is directly, at that point, overruling what

Mr Codd said in his affidavit. Then on page 103

at about letter 0, he holds that the claim made

by Mr Codd is derivative:

The serious damage to Australia's security

is expressed in terms of the damage which

the publication of Spycatcher does to the	security and intelligence agency of the
United Kingdom with which Australia has
liaison.

And, for the reasons that I have mentioned, we submit,

that His Honour was in error in doing that. Now

finally, Your Honours, at page 1649, this is where

His Honour says, "Well, everybody already knew that

MIS could not protect the confidentiality of its information, so in effect one more breach will not

make any difference!' Page 1649R His Honour

says:

Mr Codd's assertion of damage to our

national security runs thus. Australia's

ClT14/l/SR	130	9/3/88
Wright(2)

security and intelligence agencies are

part of an interconnected group of

agencies, including MIS. If the

United Kingdom cannot prevent people

like Mr Wright from publishing books
like Spycatcher, the flow of information

to MIS will diminish. Thus the flow

through the system, including to

Australia's security and intelligence

organisations would diminish, resulting

in damage to Australia's national

security.

The defect of this reasoning is

obvious.

Says His Honour:

It is based upon an assumption which is

wholly destroyed by the evidence. The

sugge.stion of an impenetrable wall of

secrecy against disclosures by people

such as Mr Wright, is completely

undermined by the wealth of evidence demonstrating numerous disclosures - some with the authority, some with the

acquiescence and some without the

connivance of the United Kingdom authorities.

The fact is that long before Spycatcher

was conceived, it was manifest that

MIS was "unable to protect the confidentiality of its information".

So he says at page 1650F:

The premise upon which Mr Codd's primary

assertion of damage to Australia's

national security ..... is not established.

So His Honour is there saying what we have submitted

that he did say in our paragraph 10 of the document

handed up. And for the reasons we have given we	submit that that judgment, in those respects and
the weighing exercise that he did was in error.
I did give Your Honours a reference yesterday to
AV HAYDEN, in relation to the weight to be given
to the evidence of the government, and if I may just take Your Honours briefly to two or three further
authorities. ALISTER V REG, a decision of this Court in 154 CLR 404, Justices Wilson and Dawson
at page 437. Page 437, half-way down the page, Your Honours say:

(Continued on page 132)

C1Tl4/2/SR	131	9/3/88
Wright ( 2)

'MR SIMOS (continuing):

It seems to us that the Minister's affidavit establishes a strong claim to the

public interest against disclosure of any
information touching the subject matter of

the subpoena. Indeed, we do not think

that the trial judge or this Court is in a

position to do other than accept that

disclosure of the information would endanger

national security. To say that is not
necessarily to conclude the task of balancing

competing public interests. It is simply

to evaluate that which goes into the scales

on one side.

At the bottom of the page:

What, then, is there to place in the scales

on the other side?

And then that is dealt with.

And then Mr Justice Brennan, at page 455 - and I will not read that - but about the middl~ of the

page towards the end of the first paragraph

Your Honours says:

The court, ill-equipped itself to evaluate

pieces of intelligence obtained by ASIO,

would not have been justified in

contemplating the possibility of disclosure
of the information sought from the ASIO file

to the accused.

If I could then give Your Honours a brief

reference to CHURCH OF SCIENTOLOGY V WOODWARD,

also in 154 CLR but at page 25, and the relevant

passage is at page 76 in the judgment of
Your Honour Mr Justice Brennan:

Yet discovery would not be given against

the Director-General save in a most
exceptional case. The secrecy of the work
of an intelligence organization which is to
counter espionage, sabotage, etc. is

essential to national security, and the

public interest in national security will

seldom yield to the public interest in the

administration of justice.

Your Honours, that was a statement relating to

ASIO and I would, if I may, give Your Honours a

reference in a moment to the charter of the British

Security Service which is also in relation to matters

of counter-espionage and sabotage.	But may I just
refer Your Honours to one -

C1Tl5/l/PLC	132	9/3/88
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BRENNAN J:  But what would be the relevance of that?

MR SIMOS: Well, just to indicate, Your Honour, that for all

relevant purposes the role of the British Security

Service is not unlike the role of ASIO.

BRENNAN J:  So that-the public interests in the confidentiality

of the British secret services is comparable with
the Australian interest in the secrecy of the

Australian security services?

MR SIMOS:  Well, in the way mentioned by Mr Codd. We just put

it that way, Your Honour. May I just give

Your Honours the final reference in relation to how the court should deal with evidence from gove:rnm:mts

and it is an English case, CCSU V MINISTER FOR
CIVIL SERVICE, (1985) 1 AC 374 at 406 per
Lord Scarman. At letter G Lord Scarman says:

My Lords, I conclude, therefore,

that where a question as to the interest
of national security arises in judicial

proceedings the court has to act on evidence.

In some cases a judge or jury is required

by law to be satisfied that the interest is

proved to exist: in others, the interest

is a factor to be considered in the review

of the exercise of an executive discretionary

power. Once the factual basis is

established by evidence so that the court

is satisfied that the interest of national

security is a relevant factor to be

considered in the determination of the case,
the court will accept the opinion of the
Crown or its responsible officer as to what is
required to meet it, unless it is possible
to show that the opinion was one which no

reasonable minister advising the Crown

could in the circumstances reasonably have

held.

(Continued on page 134)

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MR SIMOS (continuing):  So His Lordship is putting it as

. a judicial review test, really.

There is no abdication of the judicial

function, but there is a common sense

limitation recognised by the judges as to

what is justiciable: and the limitation is

entirely consistent with the general

development of the modern case law of

judicial review.

Then Lord Diplock, Your Honours, at page 412F,

says:

National security is the responsibility of

the executive government; what action is

needed to protect its interests is, as the

cases cited by my learned friend, Lord Roskill,

establish and common sense itself dictates,

a matter upon which those upon whom the

responsibility rests, and not the courts of

justice, must have the last word. It is par

excellence a non-justiciable question.	The
judicial process is totally inept to deal

with the sort of problems which it involves.

GAUDRON J:  Why then do we deal with detriment in judicial

proceedings?

MR SIMOS:	Your Honours do have to take into account the
views of the government and if Your Honours are
satisfied that those views are views which the
deponent of the affidavit can reasonably hold,
having regard to the reasons he has given, then
Your Honours must give such weight as Your Honours
deem fit to his conclusion, based upon his stated
reasons, and then decide whether the public interest
in permitting publication outweighs the detriment to national security.
These statements may well go further than the approach which this Court has taken and, of
course, to the extent that they do we would rely
on what Your Honours have said but we submit that
in substance, as opposed to form, they really do not go any further. They are not saying that what the minister says is conclusive but they recognize that subject to the judicial review sort of approach it is very difficult for a court to depart from
it.

And then Lord Roskill dealt with the matter,

and I will not read it Your Honours, on page 420D

to 420G. Your Honours, could I now take

Your Honours to what is sometimes called the

charter of the British Security Service. It is

a short few paragraphs only, Your Honours, and

ClT16/l/ND	134	9/3/88
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that is in volume 3 of the appeal books at
page 696. This was quoted by Lord Denning in
his report in relation to the Profumo affair
but the report is only here because it is a

convenient place where the so-called Maxwell Fyfe

directive, which is the charter of MIS, is set

out. At page 696 - this was from the Home Secretary

to the then Director-General of the Security Service

and says:

In your appointment as Director-General of

the Security Service you will be responsible

to the Home Secretary personally. The

Security Service is not, however, a part of

the Home Office. On appropriate occasion

you will have right of direct access to the

Prime Minister.

The Security Service is part of the Defence

Forces of the country. Its task is the Defence of the Realm as a whole, from external and

internal dangers arising from attempts at

espionage and sabotage, or from actions of persons and organisations whether directed

from within or without the country, which

may be judged to be subversive of the State.

(Continued on page 136)

C1Tl6/2/ND	135	9/3/88
Wright(2)

MR SIMOS (continuing):  So, it really is a counter espionage

and counter sabotage organization. This particular
security and intelligence agency is not an offensive
agency. It is defensive and it is domestic.

3.      You will take special care to see that the 1MJrk of t:::.

Security Service is strictly limited to what

is necessary.

4. It is essential that the Security Service

should be kept absolutely free from any political

bias or influence and nothing should be done that
might lend colour to any suggestion that it is
concerned with the interests of any particular

section of the community, or with any other matter

than the Defence of the Realm as a whole.

5.       No enquiry is to be carried out on behalf of

any Government Department unless you are satisifed

that an important public interest bearing on the

Defence of the Realm, as defined in paragraph 2,

is.at stake.

6.      You and your staff will maintain the

well-established convention whereby Ministers do

not concern themselves with the detailed information

which may be obtained by the Security Service in

particular cases, but are f;urri:ished with such information only as may be necessary for the determination of any issue on which guidance is

sought.

And then, if I could just take Your Honours to one

short passage in the judgment of the Master of the

Rolls in the recent Court of Appeal hearing at

page 31 where His Honour says, in the context of

dealing with the principle there is no confidence

in iniquity, At E he says:

Lord Denning in his report into the Profumo

affair stressed that "The members of the Service

are, in the eye of the law, ordinary citizens

with no powers greater than anyone else. They

have no special powers of arrest such as the

police have. No special powers of search are

given to them. They cannot enter premises without

the consent of the hous·eholder, even if they may

suspect a spy is there." ..... It would be a sad
day for democracy and the rule of law if the

service were ever to be considered to be above
or exempt from the law of the land.

So, in the same report as the Master of the Rolls observed, the members of the service are, in the eye of the law,

ordinary citizens with no powers greater than anyone else.

CIT17/l/JM	136/137	9/3/88
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MR SIMOS (continuing):  Now, Your Honours, going back to

paragraph 4 of the outline of argument on

page 4 - this is another defence, as we

understand it, as we have expressed in paragraph 4.

·Because of the conduct of the Crown in relation to

prior publications, it is in the Australian public

interest, according to the respondents, that the

appellant should not be permitted to restrain

Mr Wright from publishing Spycatcher, and this seems

to be at least involved in the defence of authorization

and acquiescence, and the defence seems to be, as we

understand it, and as we have said in paragraph 4.1,

that by reason of the conduct of the Crown in failing

to take steps to restrain prior publications, the Crown

should therefore not be permitted to treat Mr Wright

differently.

We submit not only is that a non-sequitur, but

it has no relevance whatever to the Australian public

interest, and in paragraph 4.3 we submit this could only

be upheld on the basis that the Crown's conduct in

relation to previous publications constituted an

abandonment or surrender by the Crown of its rights

against Mr Wright, and the way the case is put by my

learned friends, really it would have to be construed

as an abandonment of the rights of the Crown against

everybody in respect of this service, that ·anybody

in the service and - anybody not in the service was to

be free to publish and republish and do whatever they

wanted to with this material in the public domain

because the conduct of the Crown in relation to prior

publications was such that it must be deemed to have

totally abaondoned and surrendered all its rights

against all persons for all time in respect of this

particular material in the public domain.

Now, we submit that there is a summary of the facts,

which, of course, I will not go to, in an appendix to

our written submissions, but on no possible

construction of the relevant facts so far as they are
in evidence relating to the conduct of the Crown in

relation to prior publications could they be said to

have constituted an abandonment or a surrender of all

their rights against all persons in respect of this
public domain material.	Nor could it be said, nor was

it argued, that by reason of that conduct the Crown

represented to Mr Wright that he could publish this

material without restriction, nor could it be said, in our respectful submission, that that conduct was

such that Mr Wright could say, "I acted upon that view

to my detriment". So there is simply no basis, no

legal basis, in any context, for the view that somehow
conduct in relation to prior publications by others

has given Mr Wright carte blanche, and everyone else in the world, carte blanche to publish whatever they

want to do.

ClT18/l/HS	138/139	9/3/88
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MR SIMOS (continuing): It would mean that you could never

·draw the line, you could never say, if it were

relevant, enough is enough, we are going to put

an end to this. Now, Your Honours, we have

endeavoured to say that a little more fully -

and I will not repeat it of course - in our surmnary

(Continued on page 214)

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DAWSON J:  But I have difficulty in understanding why you

have to put things in these watertight compartments.

Any obligation that was incurred or arose may have

arisen out of a particular relationship or out

of a contract but it arose in the context and
only in the context of the Crown,in the exercise

of its prerogative,running the Secret Service and

one does not have to identify, does one, a public

law? One could say that the exercise of that function is sufficient perhaps for your purposes -

MR TURNBULL:	That is certainly the - - -
DAWSON J:	And it does not matter whether you can say at the same time, "Well, if you look at it in one
way it is just a private obligation arising from
contract or equity." That would only be half the
picture.
MR TURNBULL:	Your Honour, I suppose I have been arguing

against myself - - -

DAWSON J:  But I think - - -

MR-TURNBULL: - - - but I would respectfully adopt what

Your Honour said, that is, Your Honour has expressed

succinctly the characterization that Mr Justice Kirby

adopted - - -

DAWSON J:  I am not saying that is so but I am saying that

you can, perhaps, put it that way.

MR TURNBULL:  No, and that was the purpose of wnat we called

the public law defence. Perhaps if I could show

Your Honours the defence at page 15 of volume 1 it may make this clear. Paragraph 6 - you see, if we go through it you have paragraphs 1 to 3

are formal admissions and formal denials.

Paragraph 4 is what we could call the public interest defences, public domain and no longer

confidential, known to the Russians, that is, I

suppose detriment, datedness, again goes to
detriment.	(d) is iniquity evidence of crimes.

(e) is a WOODWARD V HUTCHINS sort of defence.

It was part of our case that the book demonstrated

that the British Prime Minister had misled the

House of Commons. (f):

is true and relates to important matters of

public interest.

(Continued on page 215)

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MR TURNBULL (continuing):  Then there are particulars given

to that. Of course, most of those were given

separately because of confidentiality, and you have

seen them.	5 is a defence of unclean hands,
GARTSIDE V OUITR.Il1,	and then 6 is jurisdictional
defences.	6 is:.

Indirect enforcement of a penal and/or

public law, to wit the Official Secrets

Act.

Then 7 is perhaps the more controversial defence,

to say that:

The terms of any appointment or relationship

between the second defendant -

and the British Government -

were created by the Second Defendant's appointment

pursuant to the Royal Prerogative and therefore

any obligations flowing from -

that cannot be enforced. That is our submission and

that is certainly what Mr Justice Street concluded,

subject to his especial view of the force of

Mr Codd's evidence and what Mr Justice Kirby decided.

I think that is the point that Your Honour is making.

So that is our case, but I am simply probably being

too generous for the purpose of argument, stating

that there is an argument, that even though the

relationship was entirely created in the prerogative,

in the very bosom of the prerogative power, this

very ancient service, the operation of spies,

none the less it is arguable that when you say that

these prerogative powers are not enforceable,

conscience will create an ordinary, equitable duty

of confidence.

We would submit that is not so, but that can

be the only saviour, if you like, for the appellant

in this regard because, otherwise, the jurisdictional

defences would annihilate the claim.

DAWSON J:  Yes, I had in mind - I mean, for instance, if a

revenue law said that the taxation be regarded as

owing under a contract and recoverable in that manner,

the enforcement of the so-called contract would not

mean that it was any less the enforcement of the revenue law.

MR TURNBULL:  Indeed. It really is this point of coincidence;

then it is not enforced. Let me put another analogy, to get into more clear-cut territory.

is there a coincidental equitable obligation there? prerogative,

ClT68/l/VH	215	9/3/88
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MR TURNBULL (continuing): A soldier no doubt has obligations

under statute and whatever succeeded the Articles

of War and all sorts of prerogative matters to keep

secret information given to him. Now, can a soldier

be said to have an equitable duty of confidence

quite independent of the military prerogative

relationship he has with the Crown and, as an

intermediary of the Crown no doubt, his superior

officers. And if the answer to that is no, then

the answer in this case is also no. We submit that

it is not. We submit the whole relationship is

grounded in that way.

Perhaps I could, in the few minutes that are

left today, take Your Honours to the decision of

the New Zealand High Court. Do Your Honours have

the judgment of Chief Justice Davidson?

MASON CJ:	Yes, we have that.
MR TURNBULL:	If I could take Your Honours to page 22. The

virtue of this is that the learned Chief Justice

is particularly concise. This is the same point

that is taken by the majority in the Court of Appeal.

He goes, in the last paragraph of page 22, to the

way in which the Crown sought to impose a duty.

At page 23 he says:

The whole nature of the equitable duty of

confidence ..... must be looked at to see what,

in the circumstances of this case, the true

basis of the imposition of that duty was.

A reading of the various documents which came

into being about the time of Mr Wright's

appointment and subsequent thereto leaves little

doubt as to that.

And then he refers to the declaration under the

OFFICIAL SECRETS ACT.

MASON CJ: Well then there is a review of the relevant

evidence.

MR TURNBULL: That is right. And he reaches the conclusion

that this relationship was created under the -

I will just go to the page where he makes it.

MASON CJ: It is page 24, is not it, second paragraph?

MR TURNBULL:  Page 38, actually, Your Honour - yes, page 24 and

then page 38, at about point 4:

(Continued on page 217)

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MR TURNBULL (continuing):

He was not told that he had a duty

by reason of the nature of his

engagement. He was simply told that

he had an obligation to comply with

the OFFICIAL SECRETS ACT.

And the rest of it can be read. So it is a

question of characterization and we would submit

that is the correct characterization in the manner

mentioned in argument by His Honour Mr Justice Dawson.

Now may I just briefly deal with Mr Justice Street's

confessedly novel conclusions about Mr Codd. I

think Your Honours are familiar with it because my

learned friend took you to Mr Justice Street's

decision.	Mr Justice Street was with the defence,
if you like, on the public or penal law point.	He
then said, however, the affidavit of Mr Codd

changed all that, it unlocked the key to the court

of the forum and allowed the British Government to

enforce i~s public or penal law rights therein.

Now, we would submit that Mr Justice Kirby

was correct in holding, in the passages referred to at page 37 of these submissions, that the key

to the court of the local forum lies in the hands

of the local legislature .. That was the same view

that was taken by Chief Justice Davidson in

New Zealand because a similar affidavit to Mr Codd's

was sworn by the New Zealand Cabinet Secretary.

Mr Justice Street has overlooked the important

distinction between the functions of executive

and parliament which is particularly important in

a jurisdiction like this where the executive may not
command the support of parliament. In a unicameral

jurisdiction like New Zealand the executive

generally does, and in Britain where one legislature

has fairly nominal powers it generally does too.

But here there is a very real constitutional

distinction between the legislature and the executive

and Mr Codd is not empowered, nor are his masters,

of individuals. That is something that is left	to enact laws in Australia to change the rights
to the Parliament by the CONSTITUTION.

(Continued on page 218)

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Wright(2)

MR TURNBULL (continuing):  So Mr Justice Street's proposition,

we would submit, is - it is without authority,

His Honour accepts that, but it is plainly contrary

to principle and if developed would result in very,
very pernicious consequences. The enforcement of

foreign penal laws should, and has in the past,

been left to Parliament and the DEFENCE VISITING

FORCES ACT of 1963 is a perfectly good example of

that. I notice it is 4.15, Your Honours.

MASON CJ:  Yes, Mr Turnbull. Very well, the Court will

adj ourri..

AT 4.15 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 10 MARCH 1988

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