Government secrets and assassination plots make for intriguing reading – especially when they are true.
But what happens when the government doesn’t want the information to become available to the public?
In 1987, Peter Wright, wrote a book entitled Spycatcher: The Candid Autobiography of a Senior Intelligence Officer.
He had served as an Officer of MI5 (the UK domestic intelligence agency) for over 20 years and the book detailed classified information which he learnt during his employment.
After retiring, Wright settled in Australia, which is where this famous book was written.
The book talks about the technology used by the British Security Service, and operations that the Service undertook in breach of both British and international law.
The book also exposes the penetration by soviet spies into the British secret service.
As you might expect, the British government was not thrilled that this information was coming to light – although much of it was decades old by the time the book was published.
In fact, the government did all it could to stop publication; not only in the UK, but in New Zealand and Australia as well.
The government succeeded in banning the book in the UK, and sought to have it banned overseas as well.
But could a UK government prevent an Australian company from publishing the book in Australia?
They certainly tried, taking the publishing company to court in NSW to seek an injunction to stop its publication.
At first instance, the UK government was unsuccessful – then again in the Court of Appeal.
The case made it right up to the High Court of Australia, where the question was: Could Australian courts enforce a penal statute made by a foreign country?
The High Court case
At the time that Wright signed up to the MI5 in 1955, the Official Secrets Act 1911 (UK) was in place.
Section 2 of the Act made it a criminal offence for those holding public office to:
1. Communicate information gained through public office without authorisation;
2. Use such information to benefit any foreign power or prejudice the state; or
3. Fail to take reasonable care to keep such information safe.
Wright’s actions were clearly against British law – although the High Court was asked to determine whether or not this could be enforced in Australia.
According to international law, domestic courts should not enforce the domestic public policy, penal or revenue laws of other nations, because if they could, domestic courts might find laws of a foreign state invalid, or may condemn them.
This could obviously lead to less than amicable relations between the two nations.
Although the UK therefore tried to characterise its claim as one of contract or fiduciary obligations owed by Mr Wright (which could be enforced in Australia), the High Court found otherwise – that the law was based on public policy and its enforcement would be against international law.
The High Court also found that, Spycatcher contains material that may be of public interest to Australia; as it explained how the MI5 was penetrated by spies, which could assist our own intelligence services.
Will our courts enforce the criminal laws of other countries?
In the Attorney General (UK) v Heinemann Publishers Australia 1988, (the ‘Spycatcher case’), the High Court decided unanimously that it could not enforce the criminal laws of another country.
It found that our historical links to the UK were no reason to make an exception to this rule.
And embarrassingly for the UK government, its actions had made the book far more appealing to the pubic than it might otherwise have been.
Indeed, before the court action, Spycatcher was just another account of an ex-security service agent which received less than favourable reviews – or in the words of one NSW Supreme Court judge, the book was nothing more than:
“one rather cantankerous old man’s perspective of… controversies tirelessly worked over by numberless writers… who have already ploughed over the particular field.”
But the controversy ensured that sales went through the roof; and that the old adage ‘no publicity is bad publicity’ held true.
The book sold more than two million copies and was the number one hardback bestseller in 1987.
Wright died in Tasmania in 1995, aged 78. He had become a millionaire, thanks to the sales of his book.