A v Hayden
High Court of Australia
(1984) 156 CLR 532
Case details
Court
High Court of Australia
Citation
(1984) 156 CLR 532
[1984] HCA 67
Judges
Gibbs CJ
Mason J
Murphy J
Wilson J
Brennan J
Deane J
Dawson J
Issues
Illegality
Full case
Jade
Overview
Catchwords
Contract—Injunction—Criminal Law
Contract—Public policy—Contract of employment—Employment by Commonwealth—Term binding Commonwealth not to disclose name of employee or any act performed in course of employment—Whether contrary to public interest and national security—Suspicion that criminal offences committed in course of employment—Security training exercise—Australian Secret Intelligence Service. Injunction—Criminal Law—Suspected breach—Confidential information—Public interest—Prejudice to national security—Functions of executive government. Criminal Law—Defence of superior orders—Whether maintainable.
Facts
The contract was an employment contract including a term binding the Commonwealth not to disclose the name of an employee. The employees were members of the Australian Secret Intelligence Service. They engaged in an activity, at the direction of the Cth, involving a mock hostage rescue. The Victorian Police alleged breaches of the law took place during this ‘rescue’ and sought disclosure of the names of the ASIS personnel involved. The employees sought to prevent their names being disclosed.
Justice Mason described the case in the following terms:
1 There is an air of unreality about this stated case. It has the appearance of a Law School moot based on an episode taken from the adventures of Maxwell Smart. It features the Commonwealth in a new and somewhat unattractive role - recruiting officers to the service of ASIS, its counter-espionage organization, on the footing that their names will be kept secret for reasons of national and personal security, instructing them through superior officers to participate in a bizarre training exercise carried out at the Melbourne Sheraton Hotel which involved risks of disturbing the peace and of the commission of criminal offences, yet arguing that it is entitled to disclose their names to the Chief Commissioner of Police for Victoria so that he may conduct investigations with a view to enforcing the criminal law against them, the Commonwealth itself being immune from enforcement of the law notwithstanding that through senior officers it initiated the training exercise.
Finding
The Court, which took a dim view of the role of the Cth, nevertheless found that the clause preventing the identity of ASIS personnel being disclosed for purposes of criminal investigation was contrary to public policy and illegal.
Gibbs CJ observed (at para 9): ‘There is no doubt that a contract which tends to pervert or obstruct the course of justice is against public policy.’
Similarly, Justice Mason observed:
(at 10) … the promise seeks to impose an obligation which is at variance with a fundamental head of public policy - the public interest in the enforcement of the criminal law and in the administration of justice. That there is a powerful public interest in the enforcement of the criminal law as an important element in the administration of justice does not admit of debate. Indeed, its importance has been such that the common law has regarded as illegal "any contract or engagement having a tendency, however slight, to affect the administration of justice" …
(at 16) It is obvious that the public interest in the enforcement of the criminal law as an element in the administration of justice would be seriously impaired if the citizen were at liberty to assume in return for a benefit an obligation not to disclose information concerning the commission of a criminal offence. The enforcement of the criminal law cannot be allowed to hinge on the willingness of the citizen to make a profit out of his silence, whether the contract be made before or after the commission of the offence. …
(at 17) … subject to minor qualification only … any contract having a tendency, however slight, to affect the administration of justice is illegal. …
(at 22) … I should consider the argument urged that there is a countervailing public interest, national and international security, which must be taken into account as a counterweight to the public policy in the administration of justice. Because a principle based on public policy is necessarily a reflection of judicial assessment of public interest, it generally follows that any opposing public interest must be identified and weighed in the balance so that the common law principle can be appropriately limited and applied. It may be that the public interest in the administration of justice and the enforcement of the criminal law is so strong that it cannot be outweighed by any countervailing public interest, though I am by no means presently persuaded that this is the case. Be this as it may, security presents a particular problem. That there is a public interest in national and international security is beyond question. But in many situations it may be difficult or impossible for a court to satisfy itself that there is a threat or prejudice to security. This is one such case. … the first defendant, the fourth defendant and the Commonwealth do not rely on national and international security as inhibiting the disclosure of the names to the Chief Commissioner and allege disclosure would not prejudice national security.
(at 25) I return finally to the question of whether non-disclosure of the names of the participants to the Chief Commissioner will have a tendency to adversely affect the enforcement of the criminal law. The question must be answered in the affirmative if on the facts recited in the stated case there are reasonable grounds for apprehending that the plaintiffs or any of them participated in the commission of the offences which the Deputy Commissioner (Operations) of the Victoria Police believes were committed in the course of the training exercise. …