#5244 - Ag Of Uk V. Heinemann Publishers - Conflict of Laws BCL

Attorney General of UK v. Heinemann Publishers

Facts

The appellant alleged that Mr Wright, in writing Spycatcher, had drawn substantially on confidential knowledge and information acquired by him whilst he was an officer of the British Security Service. This allegation seems not to have been disputed by the respondents. The appellant claimed that he was entitled to the relief sought on the footing that the proposed publication of Spycatcher amounted to a breach of fiduciary duty, a breach of the equitable duty of confidence or, alternatively, a breach of a contractual obligation of confidence on Mr Wright's part, the alleged breach in each instance being of a duty or obligation owed by Mr Wright to the United Kingdom Government.

Breach of fiduciary duty: The appellant's case, to the extent to which it rests on breach of fiduciary duty, is that, by reason of the trust, faith and confidence reposed in Mr Wright, he became subject to and bound by a fiduciary duty not, without authority, to disclose or use any information obtained by him in the course of his service otherwise than for the purposes of the Crown.

Breach of duty of Confidence: The appellant submits that the mere making of an unauthorized publication by an officer or former officer of the Security Service will cause detriment to the United Kingdom Government, irrespective of the content of what is published, in addition to any detriment arising from disclosure of the content itself. This proposition is based on the assertion that an unauthorized publication will disclose or authenticate the fact that the person disclosing is or was a member of the Security Service. The proposition is also based on the assertion that unauthorized publication will cause friendly security agencies to lose confidence in the Service and be less willing to make confidential information available.

Appellant’s case based crucially on the relationship between UK and the defendant: The legal and equitable basis of the appellant's case for relief is expressed in these three ways. However, they all take as their foundation the peculiar relationship between the United Kingdom Government and Mr Wright as an officer of the British Security Service, being a security service engaged in counter-espionage activities. Although the obligation sought to be enforced is personal to Mr Wright, it lies at the core of the relationship that subsists between the United Kingdom Government and the officers of its Security Service, the obligation and its enforcement seemingly being of critical importance to the efficient working of the Security Service having regard to the extraordinary and covert nature of its operations.

Holding

Meaning of “other public laws” – Governmental interests

The expression "public laws" has no accepted meaning in our law. Nevertheless Dr Mann, at p 607 in the article to which we have just referred, appears to equate "public laws" and "public rights", an expression which he treats as synonymous with "prerogative rights". The transition from "laws" to "rights" sits somewhat uncomfortably with the long-standing formulation of the rule in its application to "penal laws". It would be more apt to refer to "public interests" or, even better, "governmental interests" to signify that the rule applies to claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government.

Risk of Embarrassment/Prejudice Foreign Relations

True it is that there are some claims to enforce a foreign state's governmental interests that will not involve the risks mentioned by Learned Hand J. and Kingsmill Moore J. But there are some claims in which the very subject-matter of the claims and the issues which they are likely to generate present a risk of embarrassment to the court and of prejudice to the relationship between its sovereign and the foreign sovereign. These risks are particularly acute when the claim which the foreign state seeks to enforce outside its territory is a claim arising out of acts of that state in the exercise of powers peculiar to government in the pursuit of its national security.

The most obvious examples of such a claim are those arising out of the relationship between a foreign state and members of its military forces engaged in hostilities against another state in circumstances where this country is not directly involved. It would be a source of potentially vast detriment to Australia's national interests and foreign relations if our courts were under a common law obligation effectively to exercise jurisdiction at the suit of the first state to enforce legal rights against a member of its armed forces to prevent disclosure of information or desertion to the other state. The attempted enforcement by a foreign state of an obligation of confidentiality on the part of a member or former member of its security service is but another, even if slightly less, obvious example of such a claim.

Cannot adjudicate “Public Interest” of foreign states

No doubt an Australian court in appropriate circumstances will enforce an obligation of confidentiality on the part of a member of the Australian Security Intelligence Organization (ASIO), that organization having been established for the purpose of protecting Australia's security. But even in such a case the court may be called upon to consider whether the Australian public interest in publication overrides the interest in preserving confidentiality: see The Commonwealth of Australia v. John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39. Likewise, if an action to enforce an obligation of confidence owed by a member or former member of a foreign state's security service were to lie in the courts of this country, an Australian court could be called upon to determine whether the Australian public interest in disclosure of the relevant information required publication since the public interest in freedom of information and discussion is a material factor to be considered when a restraint on publication is sought. A question would then arise whether the Australian court should...