Attorney-General (UK) v Heinemann Publishers (1988) 165 CLR 30 (Spycatcher)

Facts: A former member of MI5 (left MI5 10yrs prior) wrote a memoir that allegedly disclosed official secrets (breaching Official Secrets Act). The publisher (Heinemann) was blocked from publishing the book in the UK as it disclosed national security information of the most sensitive kind (for UK’s ‘national security interest’). UK A-G sought an injunction in NSWSC to restrain publication in NSW. UK government sought to argue that there was a duty of confidence owed by the author to the UK government, analogous to the duty of confidence owed by an employee to a former employer (equitable duty of confidence). 

Held: The application for an injunction was to be refused, as these proceedings were proceedings to enforce a government interest of the UK, specifically the confidentiality of its information. Governmental interests for the purpose of this exclusionary doctrine falls within narrow limits. This claim violated the rule of international law where one sovereign state does not seek to assert its sovereign authority in another state. 

Question: Did it matter that the foreign state is friendly or hostile to Australia? 

Answer: No, it does not matter that the foreign state is friendly or hostile to AU. This is because friendliness is a political question; it can change constantly and quickly; courts are not competent to determine friendliness; it has no relevant connection to the principle anyway.

Principle: Australian courts will not entertain a claim that is sought to vindicate the governmental interests of a foreign State, and it is a rule of international law that such a claim is not enforceable. This rule applies to “claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government.” The principle of law renders unenforceable “actions to enforce the governmental interests of a foreign State.”