Facts: The Commonwealth (Cth) sought an injunction of the publication of the book Documents on Australian Defence and Foreign Policy. This contained sensitive government information including secret information between Australia and Indonesia and negotiation between Australia and USA. Cth sought an injunction to stop the book from publishing the book. Ex parte injunction was granted, however, before the Cth could issue the injunction early releases of the book was published. Normally they will have a contractual limb or a tortious limb or some kind of copyright claim. Quite easy for copyright claim to show reproduction. East Timor and Indonesia relationships – relevantly recent documents. 98 copies have been sold. Someone from the Cth said these documents are Top Secret. Its publication would embarrass Australia.
Issue: Is it a breach of copyright? Is it a breach of confidence? Is preventing the information from being released in the public interest?
Held (HCA in its original jurisdiction – Mason J): Granted an injunction for breach of copyright, but not breach of confidence. It was a high bar for Cth to prove damage to the public interest, and the information did not have the 'necessary quality of confidence'.
Public interest test: While some embarrassment to Australia may occur, and may make foreign countries less willing to share confidential information, disclosure was not likely to injure the public interest. It merely threw light on past workings of the government so, in fact, the publication of the book was in the public interest.
Quality of confidence: Equity treats government vs company confidentiality information differently as the government is meant to be working for citizens i.e. to act in the public interest, whereas companies are designed to make money and exploit secrets. “[E]quitable principles has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest.”