¹ [1942] A.C. 624.

² Rowell v. Pratt [1938] A.C. 101.

³ Some New Zealand cases go so far as to say that there is a presumption of interpretation against the existence of a statutory privilege: R. v. Benyon [1963] N.Z.L.R. 635; R. v. Richards [1968] N.Z.L.R. 950, 958; Bonner v. Karamea Shipping Co. [1973] 2 N.Z.L.R. 376, 378. Lord Maugham, however, in Rowell v. Pratt [1938] A.C. at pp. 108, 113, refused to recognise that any such presumption existed.

⁴ Indeed it is this same balancing which has led to the decline in judicial popularity of the term “crown privilege.”

⁵ Infra, p. 141.

⁶ But see R. v. Barton [1972] 2 All E.R. 1192.

⁷ See also Race Relations Act 1976, s.55(4).

⁸ Parliamentary Commissioner Act 1967, s.11; National Health Service Reorganisation Act 1973, s.36; Local Government Act 1974, s.32.

⁹ Census Act 1920, s.8(2); Water Act 1945, s.48; Civil Defence Act 1948, s.4(4); Factories Act 1961, s.154; Town and Country Planning Act 1962, s.212; Water Resources Act 1963, s.112; Weights and Measures Act 1963, s.48; Agriculture and Horticulture Act 1964, s.13; Trade Descriptions Act 1968, s.28; Transport (London) Act 1969, s.36; Agriculture Act 1970, s.83; Highways Act 1980, s.292.

¹⁰ Geraghty v. Woodforth and Stewart [1951] Q.W.N. 41; Cowan v. Stanhill Estates (Pty.) Ltd. [1966] V.R. 604; Irwin v. Whiteford [1978] Q.R. 137.

¹¹ Canadian Pacific Tobacco Co. v. Stapleton (1956) 86 C.L.R. 1.

¹² Atomic Energy Act 1946, s.13; Nuclear Installations Act 1965, s.24(5); Control of Pollution Act 1974, s.94; Biological Standards Act 1975, s.5.

¹³ Auckland Hotel and Restaurant Employees Industrial Union v. Pagni (1915) 12 N.Z.L.R. 311; Mobil Oil Australia (Pty.) Ltd. v. F.C.T. (1962) 13 C.L.R. 475,500.

¹⁴ See now Legal Aid Act 1974, s.22(l).

¹⁵ [1951] 2 All E.R. 228.

¹⁶ [1965] 1 Q.B. 16, 27.

¹⁷ R. v. Benyon [1963] N.Z.L.R. 635, 638, 639; R. v. Richards [1968] N.Z.L.R. 950, 952.

¹⁸ Bonner v. Karamea Shipping Co. Ltd. [1973] 2 N.Z.L.R. 375, 376.

¹⁹ See statutes noted at n. 6, supra.

¹⁸ Telegraph Act 1868, s.20; Water Act 1945, s.48; Water (Scotland) Act 1946, s.72(6); Factories Act 1961, s.154; Water Resources Act 1963; s.112; Weights and Measures Act 1963, s.48; Agriculture and Horticulture Act 1964, s.13; Medicines Act 1968, s. 118(2); Control of Pollution Act 1974, s.94; British Telecommunication Act 1981, s.50.

²¹ Town and Country Planning Act 1962, s.212; Land Commission Act 1967, s.89; Highways Act 1980, s.292.

²² Post Office Act 1969, s.65; Census Act 1920, s.8(2); Representation of the People Act 1949, s.53(l); British Telecommunications Act 1981, s.50; Taxes Management Act 1970, Sched. 2.

²³ [1954] 4 D.L.R. 483, 486, 493, 499. See also Ship v. The King (1949) 95 Can.C.C. 143, 155; R. v. Benyon [1963] N.Z.L.R. 635, 639, 640.

²⁴ Telegraph Act 1863, s.45; Post Office Protection Act 1884, s.ll.

²⁵ Harwich Election Case (1880) 3 O'Mal. & H. 61, 62; Re Smith (1881), 7 L.R. Ir. 286. Sir Robert Megarry V.-C. in Malone v. Commr. of Police (No. 2) [1979] 2 All E.R. 620, 641 thought that “improperly” in these statutes meant only “otherwise than in accordance with the instructions of one's superiors.” This leaves unanswered the question whether those superiors can in law forbid disclosure to a court.

²⁶ R. v. Benyon [1963] N.Z.L.R. 635, 639. The same point was made by Browne-Williamson, J. in London and County Securities v. Nicholson [1980] 1 W.L.R. 948, 955.Google Scholar No statutory privilege proper was contended for in that case, however.

²⁷ See Offices Act 1960, s.9; Factories Act 1961, s.154; Weights and Measures Act 1963, s.48; Horticulture Act 1964, s.13; Nuclear Installations Act 1965, s.24(5); Land Commission Act 1967, s.89; Trade Descriptions Act 1968, s.28; Highways Act 1980, s.292.

²⁸ Eggars v. Wilson Construction [1964] N.Z.L.R. 901, 903.

²⁹ [1970] 1 W.L.R. 600.

³⁰ [1974] A.C. 133.

³¹ Some information in the hands of the Customs and Excise may be the subject of a statutory privilege. See infra, n. 63.

³² See now Customs and Excise Management Act 1979, s.10.

³³ [1974] A.C. 133, 169.

³⁴ Ibid., at pp. 182, 190, 198, 206.

³⁵ They did after all recognise the evidentiary effect of the Rowell v. Pratt statutes. See infra, n. 42.

³⁶ Essential Commodity Reserves Act 1938, s.l(3); Population Statistics Act 1938, s.4(2); Ministry of Supply Act 1939, s.17; War Damage Act 1943, s.118; Coal Industry Nationalisation Act 1946, s.56; Agriculture Act 1947, s.80; Cotton (Centralised Buying) Act 1947, s.23; Industrial Organisation and Development Act 1947, s.5; Statistics of Trade Act 1947, s.9; Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Radioactive Substances Act 1948, s.7; Food and Drugs Act 1955, s.5(3); Clean Air Act 1956, s.26; Restrictive Trade Practices Act 1956, s.33; Cinematograph Films Act 1957, s.5; Agricultural Marketing Act 1958, s.47; Radioactive Substances Act 1960, s.13; Covent Garden Market Act 1961, s.32; Public Health Act 1961, s.68; Rivers (Prevention of Pollution) Act 1961, s.12; Industrial Training Act 1964, s.6; Cereals Marketing Act 1965, s.17; Highlands and Islands Development (Scotland) Act 1965, s.12; Rivers (Prevention of Pollution) (Scotland) Act 1965, s. 11; Prices and Incomes Act 1966, Sched. 1, para. 16; Abortion Regulations 1968, reg. 15; Agriculture Act 1967, ss.24, 55; Companies Act 1967, s. 111; Iron and Steel Act 1967, s.43; Sewerage (Scotland) Act 1968, s.50; Trade Descriptions Act 1968, s.28; Post Office Act 1969, s.65; Transport (London) Act 1969, s.36; Agriculture Act 1970, ss.21,108; Sea Fish Industry Act 1970, S.14(2); Civil Aviation Act 1971, s.36; Fair Trading Act 1973, s.133; Prices Act 1974, Sched., para. 12; Merchant Shipping Act 1974, s.3(5); Consumer Credit Act 1974, s.174; Industry Act 1975, s.33; Iron and Steel Act 1975, s.33; Energy Act 1976, Sched.2, para.7; Aircraft and Shipbuilding Act 1977, s.52; Consumer Safety Act 1978, s.4(3); Agricultural Statistics Act 1979, s.3; Estate Agents Act 1979, s.9; Competition Act 1980, s.19; Deep Sea Mining (Temporary Provisions) Act 1981, s.13; Film Levy Finance Act 1981, s.8.

³⁷ Since repealed. Its current successor is the Agricultural Marketing Act 1958, s.47 of which is framed in similar terms.

³⁸ [1938] A. C. 101 See also Coonan v. Richardson [1947] Q.W.N. 19; Webb v. Standard Oil Co., 319 P.621 (1957).

³⁹ [1974] A. C. 133.

⁴⁰ Ibid., at p. 105.

⁴¹ Ibid., at p. 114. He also based his decision on the fact that the return was compulsory and that under S.17(l) its contents could not even be disclosed in the Board's annual report to parliament. The legislature could hardly be presumed to have intended to allow a court what it has denied to itself.

⁴² [1974] A.C. at pp. 182, 206.

⁴³ R. v. Lewes Justices, ex p. Home Secretary [1973] A.C. 388, 407, Science Research Council v. Nassé [1980] A.C. 1028, 1066,1074, 1081 and 1087.

⁴⁴ See statutes cited n. 27, supra. See also Abortion Regulations 1968, reg. S; Population Statistics Act 1938, s.4(2); Consumer Safety Act 1978, s.4.

⁴⁵ [1938] A.C. 101, 106, 110.

⁴⁶ [1957] Q.W.N. 41. See also Re Lincoln Election Petition (1878) 4 O.A.R. 206; Buchibai v. Nagpur University [1946] A.I.R.(N.) 377. Cf. Crest Catering Co. v. Superior Court, 398 P. (2nd) 150 (1965).

⁴⁷ Oral consent is sufficient under Essential Commodities Reserves Act 1938, s.l(3); Ministry of Supply Act 1939, s.17. It is not clear whether or not these sections also permit consent to be implied from conduct. See also Consumer Credit Act 1974, s.174.

⁴⁸ P. 146, infra.

⁴⁹ But see Control of Pollution Act 1974, s.94(2) which allows waiver by “any person having a right to disclose the information.” See also Agriculture Act 1947, s.80 which allows the Minister to decide whose interests are so affected by disclosure that they should be allowed to waive.

⁵⁰ Cinematograph Films Act 1957, s.5; Horticulture Act 1960, S. 12(3); Covent Garden Market Act 1961, s.32; Public Health Act 1961, s.68; Rivers (Prevention of Pollution) Act 1961, s.12; Prices and Incomes Act 1966, Sched. 1, para. 16; Agriculture Act 1970, ss.21, 108; Civil Aviation Act 1971, s.36, Prices Act 1974, Sched., para. 12; Merchant Shipping Act 1974, s.3(5); Industry Act 1975, s.33.

⁵¹ The only statutes which do appear to allow disclosure with the consent of the ultimate source of the information are Civil Aviation Act 1971, s.36 and Consumer Credit Act 1974, s.174.

⁵² See also Highlands and Islands Development (Scotland) Act 1965, s.12 under which Inspectors who use their statutory powers to enter premises cannot testify as to what they have seen there except with the consent of the owners of those premises.

⁵³ S.I. 1968 No. 885.

⁵⁴ Rangaswami v. Raju [1942] A.I.R.(M.) 276.

⁵⁵ As it is in the statutes cited n. 56, infra.

⁵⁶ Ministry of Supply Act 1939, s.17; War Damage Act 1943, s.118; Coal Industry Nationalisation Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23(2); Industrial Organisation and Development Act 1947, s.5; Clean Air Act 1956, s.26; Radioactive Substances Act 1960, s-13(3); Fair Trading Act 1973, s.133; Consumer Credit Act 1974, s.174; Rent (Agriculture) Act 1976, s.30(4); Competition Act 1980, s.19; Film Levy Finance Act 1981, s.8.

⁵⁷ A shareholder cannot consent on behalf of a company, but a liquidator can. For the position at common law see Huron Steel Fabricators Ltd. v. Minister of National Revenue (1973) 31 D.L.R. (3rd) 110, Gagnon v. Quebec Securities Commission (1965) 50 D.L.R. (2nd) 329; Minister of National Revenue v. Die Plast (1952) 2 D.L.R. 808; Re Grace (1898) 9 Bank. Cases (N.S.W.) 11.

⁵⁸ Atomic Energy Act 1946, s.ll; Radioactive Substances Act 1960, S.13(3); Nuclear Installations Act 1965, s.24(5); A regulation which purports to allow waiver by the Minister runs the risk of being struck down as ultra vires. In the Canadian case Re Clark and Attorney-General (1978) 17 O.R. (2nd) 593 it was held that this offended the maxim delegatus non potest delegare and that the regulations themselves should state the exempt categories rather than leave them to the Minister to fix. No such point was raised in relation to the Boarding Out of Children Regulations 1965 in Re D. (Infants), supra, n.29. S.14(2) of the Children Act 1948 refers simply to a power to make regulations concerning the “welfare” of children boarded out and the “recording” of information about persons with whom they are so boarded.

⁵⁹ O'Flaherty v. McBride (1920) 28 C.L.R. 283; National Discounts Ltd. v. Jacques (1955) 93 C.L.R. 449; Canadian Pacific Co. Ltd. v. Stapleton (1956) 86 C.L.R. 1.

⁶⁰ R. v. St. Merat [1958] N.Z.L.R. 1147.

⁶¹ Ex pane Brown, Re Tunstall (1966) 67 S.R.(N.S.W.) 770; lsakson v. Jacobson [1946] 1 D.L.R. 612.

⁶² Asiatic Petroleum Co. Ltd. v. Persian Oil Co. Ltd. [1916] 1 K.B. 822; Ankin v. London and North Eastern Ry. Co. [1930] 1 K.B. 527; Gain v. Gain [1962] 1 AU E.R. 630; R. v. Home Secretary, ex p. Lewes Justices [1973] A.C. 388.

⁶³ Smout v. Walker [1968] Q.W.N. 13; contra Honeychurch v. Honeychurch [1943] S.A.S.R. 31; Bridges v. Bridges [1954] Q.W.N. 24. The same logic would also presumably allow litigants to intercept the originals with a subpoena before they came into the department's hands.

⁶⁴ Oudman v. Warren (1963) 4 F.L.R. 69; Re Goretzki [1970] A.L.R. 805; Mobil Oil Australia (Pty.) Ltd. v. F.C.T. (1962) 113 C.L.R. 475, 495.

⁶⁵ See also Employment and Trading Act 1973, s.4(5); Development of Rural Wales Act 1976, S.17(2).

⁶⁶ See also Finance Act 1972, s.127(2) by which information passing between the Customs and Excise and the Inland Revenue is privileged in the hands of the recipient department even though it is unprotected from court process while in the hands of the supplying department. In Norwich Pharmacol v. Customs & Excise [1974] A.C. 133, although s.127 was raised by counsel for the Commissioners, none of the Law Lords thought it necessary to express an opinion as to its evidentiary effect (although several mention it), because none of the information sought was within its terms. Since s.127 is a Rowell v. Pratt statute, and since all members of the House of Lords in Norwich Pharmacol approved of Rowell v. Pratt, this reticence is perhaps surprising.

⁶⁷ Statutes noted n. 9, supra. See also Weights and Measures Act 1979, s.12.

⁶⁸ (1904) 23 N.Z.L.R. 776. See also R. v. Osman [1942] A.I.R.(B.) 289.

⁶⁹ (1904) 23 N.Z.L.R. 780. See also Venkataramana v. Vaiahalu [1942] A.I.R.(M.) 377. In Hassall the document in question had been handed to the police by a clerk in whose custody it was, in the mistaken belief that he was obliged to do so. The court held that a statute forbidding disclosure by the clerk could not be used to prevent the police from producing the document in evidence.

⁷⁰ S.17 of the original Agricultural Marketing Act 1931 ironically enough was confined in its operation to a defined, albeit very wide, class of persons. See supra, p.127.

⁷¹ Robinson v. South Australia [1931] A.C. 704, 718; Sankey v. Whitman (1979) 21 A.L.R. 505, 531, 547.

⁷² Burmah Oil Co. v. Bank of England [1979] 3 W.L.R. 722, 549.

⁷³ They are even exempted from the 30-year rule. See Public Records Act 1958, s.5(3).

⁷⁴ See also Consumer Credit Act 1974, s.174.

⁷⁵ Cf. R. v. Homestake [1977] 3 W.W.R. 629, 634.

⁷⁶ See Consumer Safety Act 1978, s.4(3) which allows the disclosure of “publicised” information. See also Fair Trading Act 1973, s.133, which allows the disclosure of matters contained in published reports of the Monopolies Commission.

⁷⁷ [1968] A.C. 910, 943.

⁷⁸ Foreign Enlistment Act 1870, s.29; Atomic Energy Act 1946, s.13; Parliamentary Commissioner Act 1967, s.ll(l); Nuclear Installations Act 1965, s.24.

⁷⁹ Norwich Pharmacal v. Customs and Excise [1974] A.C. 133, 206, per Lord Kilbrandon. See also Marks v. Beyfus (1890) 25 Q.B.D. 494; Duncan v. Cammell Laird & Co. [1942] A.C. 624, 634; Sankey v. Whitlam (1979) 21 A.L.R. 505, 549, 575.

⁸⁰ Coal Industry Nationalisation Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23(2); Covent Garden Market Act 1961, s.32; Public Health Act 1961, s.68; Rivers (Prevention of Pollution) Act 1961, s.12; Highlands and Islands Development (Scotland) Act 1965, s.12; Rivers (Prevention of Pollution) (Scotland) Act 1965, s. 11; Agriculture Act 1967, ss.24, 55; Sea Fish Industry Act 1970, s. 14 (2); Industry Act 1975, s.33; Race Relations Act 1976, s.52(1); Rent (Agriculture) Act 1976, s.30(4); Consumer Safety Act 1978, s.4; Competition Act 1980, S.19(2).

⁸¹ [1958] N.Z.L.R. 1147, 1149.

⁸² Fair Trading Act 1973, s.133; Restrictive Practices Act 1976, s.41; Competition Act 1980, s.19.

⁸³ The definition of community obligation in Sched. 1 to the European Communities Act 1972 includes obligations which are not directly applicable in member countries, a definition which embraces Directives as well as Regulations. See also Van Duyn v. Home Office [1974] E.C.R. 1337.

⁸⁴ As in Energy Act 1976, Sched. 2, para. 7.

⁸⁵ E.E.C. Reg. 17, Art. 5, which requires government and “competent authorities” of Member States t o provide the Commission of the European Communities with all necessary information to carry out its duties under the competition provisions of the Treaty of Rome. Whether the Monopolies Commission is a “competent authority” is uncertain, given its mix of investigative and judicial powers.

⁸⁶ For statutes which allow disclosure only “to an institution of the European Communities” see Energy Act 1976, Sched. 2, para. 7; European Communities Act i972, s.12; Agricultural ' Statistics Act 1979, s.3(2).

⁸⁷ E.g. H. P. Bulmer Ltd. v. J. Bollinger S.A. (1974) Ch. 401.

⁸⁸ As required by European Communities Act 1972, s.2(2).

⁸⁹ All the Rowell v. Pratt statutes contain such an exemption: n. 36, supra.

⁹⁰ Coal Industry Nationalisation Act 1946. s.57; Agriculture Act 1970, s.83; Employment and Training Act 1973, s.4.

⁹¹ Agriculture Act 1970, s.83; Trade Descriptions Act 1968, s.28; Energy Conservation Act 1981. s.17.

⁹² See statutes cited nn. 20, 21, supra. S.292 of the Highways Act 1980 is a hybrid, permitting disclosure in the course of “performing a duty in connection with statutory purposes.”

⁹³ Fair Trading Act 1973, s.133; Trade Union and Labour Relations Act 1974, Sched. 1, para. 26(5); Restrictive Trade Practices Act 1976, s.41.

⁹⁴ In the New Zealand case of Auckland Hotel and Restaurant Employees Union v. Pagni (1915) 17 N.Z.G.L.R. 311, 312 it was held that industrial safety legislation which allowed disclosure by a factories inspector “in the exercise of functions” under that legislation precluded an inspector from giving evidence in proceedings brought by a trade union, even though the Act in question expressly authorised the union to bring such proceedings. “Duty” would probably be similarly interpreted. (But see the South African cases: Greenspan v. R. [1944] S.R. 149, 155; R. v. Kassim [1950] 4 S.A. 522; Union Government v. Shiu [1955] 1 S.A. 298.) Disclosure for statutory purposes, on the other hand, would seem to permit disclosure to assist private initiatives under the Act.

⁹⁵ Disclosure for statutory purposes does not mean automatic enforced disclosure against the will of the department, even in proceedings commenced by the department. The party seeking disclosure in such a case probably has to prove that his need for the information answers some statutory purpose (O'Flaherty v. McBride (1920) 28 C.L.R. 283). A party's wish to use the information to cross-examine the agency's witnesses would not so answer. (Ibid. Sometimes this is made explicit. S.27(4) of the Health and Safety at Work Act 1974 provides that the information shall not be used for a purpose other than a purpose of the Health and Safety Commission or Executive.) Where the agency wishes to disclose, however, wish and statutory purpose are assumed to coincide (O'Flaherty v. McBride, supra), thus giving the agency the right of waiver in proceedings under the Act although not in other cases. By contrast, a reference to duty or function does not distinguish between voluntary and compulsory disclosure. An official who is called to give evidence on behalf of the agency is fulfilling a statutory function and that function does not cease at the end of his evidence-in-chief. A document tendered by the agency as part of its statutory duty would seem to presuppose an identical duty to release related documents.

⁹⁶ Some Acts do require this, e.g., Ministry of Supply Act 1939, s.17; Agriculture Act 1947, s.80; Agricultural Statistics Act 1979, s.3(2); Estate Agents Act 1979, S. 10 (3); Deep Sea Mining (Temporary Provisions) Act 1981, s.13.

⁹⁷ Probably not. The case should have its origins in the statute. An action for negligence does not display the necessary nexus with the Act simply by showing that the action complained of also amounts to breach of the statute. Hiroa Mariu v. Hun Timber Hardware Co. Ltd. [1950] N.Z.L.R. 458; Eggers v. E. D. Wilson Construction (Nelson) Ltd. [1964] N.Z.L.R. 901. A civil action involving both common law and breach of statutory duty might find the court admitting evidence to support the latter cause of action while excluding it for the purposes of the former.

⁹⁸ National Discounts Ltd. v. Jacques (1955) 39 C.L.R. 449; Union Government v. Shiu [1955] 1 S.A. 298.

⁹⁹ Canadian Pacific Tobacco Co. Ltd. v. Stapleton (1952) 86 C.L.R. 1.

¹ Some statutes do expressly define exempt proceedings to include arbitrations: Ministry of Supply Act 1939, s.17; War Damage Act 1943, s.118; Cotton (Centralised Buying) Act 1947, s.23; Cinematograph Films Act 1957, s.5; Agricultural Marketing Act 1958, s.47; Covent Garden Market Act 1961, s.32; Gas Act 1965, Sched. 6, para. 9; Land Commission Act 1967, s.89; Sea Fish Industry Act 1970, S.14(2); Fire Precautions Act 1971, s.21; Film Levy Finance Act 1981, s.8.

² Statutes which allow the giving of evidence in proceedings brought under the Act (Ministry of Supply Act 1939, s.17; Agriculture Act 1947, s.80; Statistics of Trade Act 1947, s.9; Radioactive Substances Act 1948, s.7; Agricultural Marketing Act 1958, s.47; Restrictive Trade Practices Act 1976, s.41(l)) do not allow it to be given in ancillary or review proceedings (unless judicial review is part of the statutory scheme of things). By contrast, when Acts speak of disclosure in cases arising out of (Clean Air Act 1956, s.26; Horticulture Act 1960, S.12(3); Prices and Incomes Act 1966, Sched. 1, para. 16; Civil Aviation Act 1971, s.36; Prices Act 1974, Sched., para. 12; Aircraft and Shipbuilding Act 1977, s.52) or in connection with the execution of (War Damage Act 1943, s. 188; Coal Industry Nationalisation Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23; Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Radioactive Substances Act 1948, s.7; Rivers (Prevention of Pollution) Act 1961, s.12; Rivers (Prevention of Pollution) (Scotland) Act 1965, s. 11; Highlands and Islands Development (Scotland) Act 1965, s.12; Sea Fish Industry Act 1970, S.14(2)) or in consequence of (Essential Commodities Reserves Act 1938, s. 1(3)) the Act, the words are wide enough to embrace both ancillary enforcement and judicial review. In the grey area between these categories are sections referring to proceedings pursuant to (Film Levy Finance Act 1981, s.8) or by virtue of the Act (see statutes noted at n. 5, infra).

³ Foreign Enlistment Act 1870, s.29; Parliamentary Commissioner Act 1967, s.ll. In the Canadian case R. v. Homestake [1977] 3 W.W.R. 629, 634, it was held that a reference in a secrecy statute to “information obtained in the course of official employment” could not be used to protect an agency's internal records from disclosure when the whole thrust of that statute was directed to combating or regulating private individuals or groups. The same observations could be made of Biological Standards Act 1975, s.5(l); Census Act 1920, s.8 which employ a similar phraseology.

⁴ Statutes which refer to information obtained under (Statistics of Trade Act 1947, s.9; Agriculture Act 1947, s.80; Companies Act 1967, s.lll; Sea Fish Industry Act 1970, s.14), in the exercise of (Atomic Energy Act 1946, s. 13; Radioactive Substances Act 1948, s.7; Agricultural Marketing Act 1958, s.47; Gas Act 1965, Sched. 6, para. 9; Nuclear Installations Act 1965, s.24(5); Fire Precautions Act 1971, s.21), in compliance with (Water Act 1945, s.48; Civil Defence Act 1948, s.4(4); Town and Country Planning Act 1962, s.212; Land Commission Act 1967, s.89; Highways Act 1980, s.292) or in pursuance of (Offices Act 1960, s.9; Water Resources Act 1963, s.112) statutory powers would seem to require that the compulsion in fact be exercised. This need not mean that the supplier be served with formal notice or requisition (although in some cases this is provided for). It does mean that the public agency should have acquired the information after manifesting its intention to insist on its statutory powers in a particular case. (There need be no actual prior communication with the supplier.)

⁵ Such information may be said to be acquired “by virtue” of a statutory power in the sense that it is unlikely to have been forthcoming if the statute did not exist. Statutes which use this terminology are: Population Statistics Act 1938, s.4(2); Ministry of Supply Act 1939, s.17; Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Weights and Measures Act 1963, s.48; Agriculture and Horticulture Act 1964, s.13; Highlands and Islands Development (Scotland) Act 1965, s.12; Medicines Act 1968, s.118; Trade Descriptions Act 1968, s.28; Fair Trading Act 1973, s.133; Consumer Credit Act 1974, s.174; Supply Powers Act 1975, s.5; Energy Act 1976, Sched. 2, para. 7.

⁶ The inculcation of such a belief has been held to be sufficient to justify non-disclosure in the public interest at common law: Liddle v. Owen (1978) 21 A.L.R. 286, 289.

⁷ Several Canadian decisions require that the supplier must be aware of his legal duty and be acting in compliance with it: R. v. Gordon [1947] 2 D.L.R. 35; Jordan v. Fitzgerald [1950] 1 D.L.R. 247, 246; Smiths Transport Ltd. v. Vanderjagt (1957) 11 D.L.R. (2nd) 166, 178; Lindfors v. Cameron (1962) 31 D.L.R. (2nd) 58. The Acts in question, however, protect “statements,” not information, and the cases could equally be said to turn on whether volunteered information is the “statement” the Act requires the supplier to make. See Le Blanc v. Murray (1978) 2 N.B.R. (2nd) 390. Untangling the motivation of supplier and recipient in these cases will seldom be easy, as the Australian case Canadian Pacific Tobacco Co. v. Stapleton (1952) 86 C.L.R. 1 illustrates. The information sought to be protected in that case had been obtained by interrogating the director of the appellant company. The official conducting the interrogation possessed a statutory right of access to the company's books and he showed the director a notice to this effect. He also had the power to compel the director to answer questions although he made no mention of this fact. What was in the director's mind when he made his damaging admissions? Was the official in fact exercising his statutory powers? Fortunately for the court in the Canadian Pacific case the statutory privilege which might have been used to protect the admissions had been waived. The problem cannot always be so easily avoided.

⁸ The Prices Act 1974, Sched., para. 12(1) expressly protects information acquired in this way.

⁹ Post Office Act 1965.

¹⁰ War Damage Act 1943, s.118; Coal Industry Nationalisation Act 1946, s.56. S.23(2) of the Cotton (Centralised Buying) Act 1947 protects information acquired by a public employee “for the purposes of his functions” under the Act. See also Census Act 1920, s.8. Some Acts, it is true, refer to the furnishing of information (see statutes cited n. 11, infra) which suggest voluntary compliance. The context usually indicates otherwise, however.

¹¹ In the New Zealand case Hiroa Mariu v. Hull Timber and Hardware Co. [1950] N.Z.L.R. 458, 468 (see also Eggers v. E. D. Wilson Construction (Nelson) Ltd. [1964] N.Z.L.R. 901) the court took the view that a statutory reference to “information acquired” (acquired is the term used in s.8(2) of the Census Act 1920) embraced both personal observation and hearsay, a view shared by the Supreme Court of Victoria in National Mutual Life Association v. Godrich [1954] V.L.R. 708. In a later New Zealand decision, Bonner v. Karamea Shipping Co. [1973] N.Z.L.R. 374, it was rather tentatively suggested that a prohibition against the disclosure of information obtained under statutory powers pre-supposed the existence of a supplier and did not forbid the disclosure of observed facts or events. The writer finds it difficult to detect any distinction between obtaining or acquiring in this context. The distinction made in the Bonner case can more rationally be applied to statutes which refer only to information furnished (as in Sewerage (Scotland) Act 1968, s.50; Civil Aviation Act 1971, s.36) or “given” (Prices and Incomes Act 1966, Sched. 1, para. 16; Prices Act 1974, Sched., para. 12). Many statutes point up the distinction between obtained and furnished by referring to both: Horticulture Act 1960, S.12(3); Covent Garden Market Act 1961, s.32; Cereals Marketing Act 1965, s.17; Rivers (Prevention of Pollution) (Scotland) Act 1965, s.ll; Agriculture Act 1967, ss.24, 55, 108; Agriculture Act 1970, ss.21, 83, 108; Merchant Shipping Act 1974, s.3. This suggests that the dichotomy between information acquired via observation and that provided through other persons was at least present in the mind of the draftsman.

¹² Hiroa Mariu v. Hull Timber and Hardware Co., loc. cit., at p. 460.

¹³ It must be conceded that information obtained is not an apt phrase to use if it is intended to bring opinions and conclusions within the reach of the statutory privilege. Conversely, one may conceivably acquire opinions as well as facts. See statutes cited n. 11, supra.

¹⁴ Energy Act 1976, Sched. 2, para. 7. See also Covent Garden Market Act 1961, s.32; Industrial Training Act 1964, s.6; Cereals Marketing Act 1965, s.17; Iron and Steel Act 1967, s.43; Agriculture Act 1970, ss.21, 108; Iron and Steel Act 1975, s.33. Some statutes make even the disclosure of unattributed information subject to Ministerial consent, e.g., Agricultural Statistics Act 1979, s.3.

¹⁵ Ministry of Supply Act 1939, S.17(1); War Damage Act 1943, s.118; Coal Industry Nationalisation Act 1946, s.56; Cotton (Centralised Buying) Act 1947, s.23(l); Statistics of Trade Act 1947, s.9; Cotton Spinning (Re-equipment Subsidy) Act 1948, s.4; Companies Act 1967, s. 111; Sea Fish Industry Act 1970, s.14; Civil Aviation Act 1971, s.36(l); Fair Trading Act 1973, s.133; Supply Powers Act 1975, s.5(l); Restrictive Trade Practices Act 1976, s.41.

¹⁶ Gamini Bus Co. Ltd. v. C.I.T. [1952] A.C. 571, 579.

¹⁷ Ashworth v. Roberts (1890) 45 Ch.D. 623; Mitovski v. Mandelberg (1890) 6 T.L.R. 207.

¹⁸ Radioactive Substances Act 1960, S.13(3); Town and Country Planning Act 1962, s.212; Water Resources Act 1963, s.112; Weights and Measures Act 1963, s.48; Land Commission Act 1967, s.89; Sewerage (Scotland) Act 1968, s.50; Trade Descriptions Act 1968, s.28; Biological Standards Act 1975, s.5; Energy Conservation Act 1981, s.19.

¹⁹ For a rare recognition that such a choice exists, see Honeychurch v. Honeychurch [1947] S.A.S.R. 31, 35.

²⁰ [1952] A.C. 571, 579.

²¹ [1968] A.C. 910, 946.

²² The mere fact of compulsion will not, of course, lead to automatic exclusion London and County Securities Ltd. v. Nicholson [1980] 1 W.L.R. 948.

²³ [1974] A.C. at p. 182.

²⁴ [1954] 4 D.L.R. 483, 487.

²⁵ [1974] A.C. at p.198.

²⁶ The oaths final proviso could be an obstacle here: see, n. 22, p. 123, supra.

²⁷ A statutory oath was first imposed on Revenue Officers in 1918 by s.87 of the Income Tax Act of that year.

²⁸ (1813) 3 Camp. 337; 170 E.R. 1402.

²⁹ It is interesting to note that the court did not attack the oath head-on by overriding it on forensic policy grounds, but chose instead a somewhat forced interpretation of its meaning.

³⁰ (1852) 7 Ex. 230; 155 E.R. 929.

³¹ The case is somewhat inconclusive. The books were produced by the keeper of a private lunatic asylum licensed by the Commissioners. It does not appear from the report whether he in fact took the secrecy oath or even whether he was required to do so by the statute.

³² Cowan v. Stanhill Estates (Pty.) Ltd. [1966] V.R. 604, 606; R. v. Vanguard Hutterian Brethren Inc. [1979] 3 W.W.R. 247, 251, 255.

³³ [1914] V.L.R. 77, 80.

³⁴ See R. v. Vanguard Hutterian Brethren Inc., n. 32, supra.

³⁵ Nowhere in the Official Secrets Act are such declarations mentioned, much less made mandatory.

³⁶ See Bell v. University of Auckland [1969] N.Z.L.R. 1029, 1036.

³⁷ See also Coal Act 1938, s.53; Wireless Telegraphy Act 1949, s.5; Offices Shops and Railway Premises Act 1963, s.59; Harbours Act 1964, s.46; Gas Act 1965, Sched. 6, para. 29; Health and Safety at Work Act 1974, s.28; Fisheries Act 1981, s.12.

³⁸ See also Race Relations Act 1976, s.52(l).

³⁹ Krew v. Commissioner of Taxation (1971) 45 A.L.J.R. 269; L'Estrange v. Commissioner of Taxation (1973) 47 A.L.J.R. 319; Tomlinson v. Commissioner of Taxation (1974) 24 F.L.R. 314.

⁴⁰ Honeychurch v. Honeychurch [1943] S.A.S.R. 31; Bridges v. Bridges [1954] Q.W.N. 24.

⁴¹ Federal Trade Commission v. Dilger, 276 F.(2nd) 739 (1960); Webb v. Standard Oil Co., 319 P. 621 (1957).

⁴² Oudman v. Warren (1963) 4 F.L.R. 69; St Regis Paper Co. v. United States, 361 U.S. 208 (1961). The “grafting” approach, although rejected by federal courts in the United States, still survives in California. See Crest Catering Co. v. Superior Court, 398 P. (2nd), 150 (1965); Save On Drugs Inc. v. Superior Court, 538 P. (2nd) 739 (1975).

⁴³ Crest Catering Co. v. Superior Court, supra.

⁴⁴ Bhaiya Saheb v. Ramnath [1938] A.I.R.(N.) 358.

⁴⁵ Unless perhaps, it were so widely circulated as to bring the common law prior publication principle into play (p. 133, supra); although even here it would be possible to argue that departments should not be permitted to subvert the statute by deliberately publishing the information (see Sankey v. Whitlam (1979) 21 A.L.R. 505, 531).

⁴⁶ Hennessey v. Wright (1888) 21 Q.B.D. 509, 518; Chatterton v. Secretary of State for India [1895] 2 Q.B. 189; Duncan v. Cammell Laird & Co. [1942] A.C. at p. 642; R. v. Home Secretary, ex p. Lewes Justices [1973] Q.C. 388, 400; Science Research Council v. Nassé [1980] A.C. 1028, 1066, 1074, 1081 and 1087.

⁴⁷ See statutes noted n. 58, supra.

⁴⁸ Civil Aviation Act 1971. s.36(l).

⁴⁹ Such legislative action as there is in these fields has been by way of delegated legislation: Adoption Agencies Regulations (S.I. 1959 No. 639); Public Health (Infectious Diseases) Regulations (S.I. 1968 No. 13661); Abortion Regulations (S.I. 1968 No. 390).