“Crown Privilege”, Scrutiny of the Administration and the “Public Interest”—A Comment on Sankey v. Whitlam1
| Author | John Goldring |
| DOI | 10.1177/0067205X7901000104 |
| Published date | 01 March 1979 |
| Date | 01 March 1979 |
| Subject Matter | Comment |
COMMENT
'·CROWN PRIVILEGE", SCRUTINY OF
THE
ADMINISTRATION
AND
THE
"PUBLIC
INTEREST"-A
COMMENT ON
SANKEY
v.
WHITLAMl
Background-Public
Access to In/ormation
The system of government in Australia
is
clearly of the "Westminster"
type. The Federal Government, and that of each State, comprises an
executive government chosen from and responsible to the body of
elected representatives of the people.
It
is
now recognised that govern-
ment of this type cannot function without extensive delegation of
executive and policy-making functions.
In
this system the intended task
of the legislature
is
to give final approval to policy, but also to ensure
that the executive government keeps within the policy directions
approved by the legislature. The task of controlling the executive
is
not
wholly that of the legislature. The judiciary has an important function
in ensuring that administrative officers and bodies neither exceed their
powers nor act contrary to the common law rules of "administrative
law".2 The Administrative Appeals Tribunal Act 1975
(Cth)
gives a
means of review of administrative acts which falls technically within
the ,executive branch of government, though the Tribunal established by
the Act operates like acourt. Neither the courts
nor
the Administrative
Appeals Tribunal act of their own motion; their processes must be set
in motion by some member of the community. Yet, in order to act, to
correct an illegal act by the executive
or
to overcome maladministration,
aperson must have knowledge of what the administration has done in
the particular case. Similarly, in order to properly exercise their powers
of supervision of the executive, the members
of
Parliament must know
what the executive has done.
In
the past, it has been extremely difficult for an ordinary citizen to
know what the executive has done, even in aparticular case in which
he may have suffered physical
or
pecuniary damage
as
the result of an
unauthorised executive act. In part, this was due to aprevailing attitude
of official secrecy. Not only was the prevailing attitude among civil
servants that there
was
no right in the public to have any access to
official information (which creates in them apower,
at
times consciously
exercised, to withhold information) but also section 70 of the Crimes
Act 1914 (Cth) made the disclosure of official secrets acriminal offence.
Thedoctrine of "Crown Privilege" (with which this Comment
is
primarily
concerned) prevented the disclosure of official documents in the course
of litigation, even where that litigation arose out of an injury caused to
acitizen by some fault on the part of the executive government.
1(1978)
21
A.L.R. 505.
2The Constitution,
s.75,
guarantees aright to control acertain amount
of
administrative abuse by way
of
prerogative writs.
80
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