Breach of Confidence and the Public Interest Defence: Is it In the Public Interest? A Review of The English Public Interest Defence and the Options for Australia

Abstract

This article traces the development of the public interest defence in England and determines to what extent this criticism is valid. It then examines the three Australian responses to the defence and considers which approach would best serve the interests of the Australian public. There are four main criteria considered in relation to each approach. The first is whether the defence provides adequate protection for certain relationships which require an assurance of trust and confidence to function effectively. The second criteria is whether the defence would allow disclosure of certain information where to do so would promote the public welfare and prevent harm being caused to members of the public. The third is whether the defence provides a reasonable degree of certainty and does not encourage decisions to be made solely on the basis of the social and political values of individual judges. The fourth criteria arises after it has been determined that the information should be disclosed and considers whether disclosure to certain recipients should be promoted and, if so, whether the defence encourages disclosure to the appropriate recipients.