Under
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, public-interest privilege prevents the compulsory disclosure of documents or information which is against the public interest. There is a balance between public interests- if the public interest in secrecy is greater than the public interest in disclosure, it will be privileged. The public interest in disclosure is the principle that a court of justice ought not be denied access to relevant information, and that the opposing party should have access to all relevant information to make their case.
Unlike other privileges, this right is not vested in any party or entity. The court may, of its own motion, prevent admission of evidence if it thinks it may disclose privileged information. The government need not be a party to proceedings for privilege to be raised. Privilege, being vested in the public interest and not a party, cannot be waived by a party. However, if the information has been published elsewhere this is a very strong factor towards the public interest of disclosure.
This privilege may be claimed on two bases. Firstly, that the documents belong to a class of documents which the public interest requires should not be disclosed. In
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
, even for documents belonging to a very high level documents, such as cabinet papers, the court must interrogate whether it really is prejudicial to the public interest to disclose it. Australian judges in general have been more willing to disclose information than judges in
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
or
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
.
[Suzanne McNicol, Law of Privilege (1st ed, 1992) at 410]
See also
*
Privilege in general
*
State Secrets Privilege, the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
equivalent
Notes
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Evidence law
Interest privilege