Sankey v Whitlam
Encyclopedia
Sankey v Whitlam was an important court case
decided in the High Court of Australia
on 9 November 1978.
On 20 November 1975, in the middle of the election campaign which followed the dismissal of the Whitlam government
, a Sydney solicitor, Danny Sankey, initiated a private prosecution against Gough Whitlam
, Rex Connor
, Lionel Murphy
and Jim Cairns
. The prosecution related to the alleged unlawful conduct of the accused in relation to their participation in the so-called 'loans affair'.
Two charges were laid against each defendant. The first alleged that the loan proposal would have contravened the Commonwealth-State Financial Agreement of 1928. The second alleged that the defendants had conspired to deceive the Governor-General in the performance of his duties.
The prosecution went through numerous preliminary steps in the Queanbeyan Magistrates' Court before Stipendiary Magistrate Darcy Leo, including appeals to the NSW Court of Appeal, before it reached a stage which brought it before the High Court
.
On 9 November 1976, Sankey subpoenaed Executive Council and Loan Council documents for production before the Magistrate. The Fraser government objected to produce these documents, arguing that they were confidential and were subject to 'crown privilege'. This claim was upheld by the Magistrate. The matter went on appeal to the NSW Court of Appeal. The appeals were removed to the High Court
.
At all relevant times during the prosecution one of the defendants, Lionel Murphy
, was a Justice of the High Court. Justice Murphy did not sit as part of the Court to hear the appeal from the Magistrate's ruling.
The High Court overruled the magistrate and held that the documents should be produced before the Magistrate. However, the Court also ruled that the charge alleging contravention of the Financial Agreement was bad in law, and dismissed that charge.
The lasting significance of the Court's ruling was that it imposed a very narrow view of when a government could claim 'crown privilege', finding that even cabinet documents were not exempt from production before the courts.
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 9 November 1978.
On 20 November 1975, in the middle of the election campaign which followed the dismissal of the Whitlam government
Australian constitutional crisis of 1975
The 1975 Australian constitutional crisis has been described as the greatest political crisis and constitutional crisis in Australia's history. It culminated on 11 November 1975 with the removal of the Prime Minister, Gough Whitlam of the Australian Labor Party , by Governor-General Sir John Kerr...
, a Sydney solicitor, Danny Sankey, initiated a private prosecution against Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
, Rex Connor
Rex Connor
Reginald Francis Xavier "Rex" Connor , Australian politician, was a minister in the Whitlam government and promoted government investment to support national development...
, Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
and Jim Cairns
Jim Cairns
James Ford "J. F." Cairns , Australian politician, was prominent in the Labor movement through the 1960s and 1970s, and was briefly Deputy Prime Minister in the Whitlam government...
. The prosecution related to the alleged unlawful conduct of the accused in relation to their participation in the so-called 'loans affair'.
Two charges were laid against each defendant. The first alleged that the loan proposal would have contravened the Commonwealth-State Financial Agreement of 1928. The second alleged that the defendants had conspired to deceive the Governor-General in the performance of his duties.
The prosecution went through numerous preliminary steps in the Queanbeyan Magistrates' Court before Stipendiary Magistrate Darcy Leo, including appeals to the NSW Court of Appeal, before it reached a stage which brought it before the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
.
On 9 November 1976, Sankey subpoenaed Executive Council and Loan Council documents for production before the Magistrate. The Fraser government objected to produce these documents, arguing that they were confidential and were subject to 'crown privilege'. This claim was upheld by the Magistrate. The matter went on appeal to the NSW Court of Appeal. The appeals were removed to the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
.
At all relevant times during the prosecution one of the defendants, Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
, was a Justice of the High Court. Justice Murphy did not sit as part of the Court to hear the appeal from the Magistrate's ruling.
The High Court overruled the magistrate and held that the documents should be produced before the Magistrate. However, the Court also ruled that the charge alleging contravention of the Financial Agreement was bad in law, and dismissed that charge.
The lasting significance of the Court's ruling was that it imposed a very narrow view of when a government could claim 'crown privilege', finding that even cabinet documents were not exempt from production before the courts.