The modern interpretation of the doctrine of public interest immunity is to be viewed contextually with the advent of Freedom of Information legislation and other Acts evidencing a trend toward increasing open government in Australia.’ The law started refusing to accept government claims of ‘absolute immunity’ from disclosure in a curial environment. Previously, documents belonging to a class which, on grounds of public interest, must as a class be withheld from production’ could be protected from disclosure – the court’s only function prior to the modern statement of the law was to recognise and pronounce that the documents belonged to such a class.

In the leading case of Sankey v Whitlam and Others ((1978) 142 CLR 1), the High Court considered at length the modern Australian application of the doctrine of public interest immunity.

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer ([1968] AC 910, 94), as follows:

‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’

It was held that the relevant principles applied equally to viva voce evidence as well as the production of documents, though the facts of that case involved the latter.

Of special significance to the present discussion,

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.

This statement of the relevant principles displaced the earlier principles permitting blanket claims for immunity from disclosure based upon the class of documents rather than individual contents. It also removed any suggestion that a claim by the executive was absolute, and unsuitable for challenge or for assessment by the court.

Nonetheless, the balancing exercise to be undertaken by the court recognised that, inherently, government at a high level cannot function without some degree of secrecy. The public interest therefore requires that some protection be afforded by the law to documents of that kind. This factor was deserving of weight, reflected in the balancing exercise; the relevant government agency would be entitled to be heard prior to any determination of a claim for immunity, and there was an entitlement for that agency to appeal if aggrieved by a decision to order production of documents. Likewise, however, ‘the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.’ Mason J of the High Court in Sankey v Whitlam expressed that limb of the public interest as being ‘in the administration of justice in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence.’ His Honour was the only member of the court to refer explicitly to trial fairness in considering this public interest, and the citation in support of the proposition, Conway v Rimmer, does not speak of trial fairness, only the fair administration of justice.

The balancing exercise to be undertaken by the court affords recognition to the observation by Gibbs A-CJ (as he then was) as to the other competing public interest – avoiding an injustice to an accused person whose liberty was at stake in a criminal trial, where the documents were necessary to support their defence. In those circumstances the documents must be disclosed. This is not to say that there is not a balancing process to be undertaken, instead, the public interest in preventing an innocent person from being convicted of a crime is so powerful that it outweighs the countervailing public interest.

Author Bio: Dr Martine Marich is one of Melbourne’s busiest criminal lawyers and is Australia’s only criminal lawyer to be both an accredited specialist in criminal law (Victoria) and hold a doctorate in law. She also lectures in criminal law at university. See http://martinemarich.com.au

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Keywords: Criminal lawyer, Criminal lawyers, Criminal lawyers Melbourne