Bungling Crown Privilege: Australia’s Cabinet Security Breach

Journalists would have seen it as a scoop, and insisted that no laws had been broken. Politicians might have considered it a calamity.  Whatever one terms Australia (parliamentary democracy; constitutional monarchy) secrecy remains the state’s watchword.  When it comes to bureaucratic provisions that supposedly safeguard the state against the prying eyes of the public, all justified in their name, Australia does rather well.

This is particularly so on the subject of Cabinet files, insulated from public view by that curious legal creature known as public interest immunity.  In its older variant, the term “Crown privilege” was used. Over history, the courts of Britain and Australia have shown a marked trust in the word of a minister.

As the House of Lords decision of Duncan v Cammell Laird & Co. (1942) asserted, the minister’s certification that the documents should not be produced as contrary to the public interest was essentially unimpeachable.  The public, effectively, had to be protected from the government’s own conduct.

Cabinet minutes, discussions and associated documents were deemed particularly sensitive, though Australian courts have, at stages, taken it upon themselves to determine whether their contents ought to be made known to the public.

In the words of High Court Justice Harry Gibbs in Sankey v Whitlam (1978), “It is however clear that the court should prevent the disclosure of a document whose production would be contrary to the…

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