In this issue |
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Protecting confidential information before courts and tribunals |
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'Top secret' – the provisions keeping Commonwealth information confidential |
Confidentiality and the Public Interest Disclosure Act 2013A public interest disclosure is a disclosure of information, usually by a 'public official' within the meaning of the Public Interest Disclosure Act 2013 (PID Act), to the public official's supervisor, or to an appropriate 'authorised officer' under the PID Act, about wrongdoing by another public official. The PID Act contains a number of provisions that protect the confidentiality of certain types of information. A breach of some of these provisions can be a criminal offence. Penalties for breaching these provisions range from imprisonment for up to 6 months to imprisonment for up to 2 years. The PID Act also provides for a measure of confidentiality in the processing of public interest disclosures. This article discusses the key provisions of the PID Act that deal with confidentiality. |
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Richard Harding
Special Counsel Dispute Resolution
T 02 9581 7671
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Section 20 of the PID Act makes it an offence for any person to use or disclose information that:
- a person obtained in that person's capacity as a public official
- is likely to enable another person to be identified as a person who has made a public interest disclosure.
Section 20(3) of the PID Act contains a number of exceptions to this prohibition. They include:
- where the use or disclosure is for the purposes of the PID Act or another law of the Commonwealth
- where the second person has consented to the use or disclosure
- where the identifying information has previously been lawfully published.
It is worth noting that a threat to disclose the identity of a public interest discloser could amount to the taking of reprisal action under the PID Act. Also, in certain circumstances, making such a threat could amount to a criminal offence punishable by up to 2 years imprisonment.
Under s 21 of the PID Act, a court or tribunal cannot require a person who is or has been a public official (within the meaning of that term in the PID Act) to:
- disclose to a court or tribunal information that identifies a public interest discloser
- produce to a court or tribunal a document that contains information that identifies a
public interest discloser.
This will apply unless, in either case, it is necessary to do so for the purposes of the PID Act.
Section 23 provides that, if civil or criminal proceedings are instituted against an individual in a court and the individual makes a claim for immunity under s 10 of the PID Act (this is the immunity arising from having made a public interest disclosure), then the court must deal with that claim in separate proceedings.
Section 44 of the PID Act provides that, when an authorised officer allocates a public interest disclosure to a principal officer for investigation under the PID Act, the authorised officer must not give the principal officer the name and contact details of the discloser unless the discloser has consented to this.
Another aspect of the confidentiality issue is that, under s 57 of the PID Act, apart from a few exceptions, if a person gives information to a PID Act investigator when the investigator requests it and when the information is relevant to the PID Act investigation, the person will not be subject to any criminal or civil liability. So the person giving the information to the investigator – the witness – would be immune from an action for breach of confidence in
this situation.
The strongest secrecy provision in the PID Act concerns information obtained by persons acting in an official capacity under the PID Act – for example, supervisors who have received disclosures, authorised officers and investigators. Section 65 provides that, if a person obtains information in performing a function or exercising a power under the PID Act, they must not use or disclose that information except in certain circumstances. The exceptions are quite narrow. They include:
- where the use or disclosure is for the purposes of the PID Act
- where the use or disclosure is for the purpose of taking action in response to a disclosure investigation
- where the information is not intelligence information and has previously been lawfully published.
A breach of s 65 is punishable by up to 2 years imprisonment.
It should also be noted that, subject to some exceptions, s 78 of the PID Act provides an immunity from criminal or civil proceedings, and from disciplinary action, for a principal officer, investigator, authorised officer or supervisor, for anything done in good faith in carrying out their duties under the PID Act.
Confidentiality and freedom of informationThe Freedom of Information Act 1982 (FOI Act) provides a mechanism that allows the public to seek access to documents held by virtually all Commonwealth agencies. The FOI Act seeks to enhance representative democracy through improved public participation in government processes and increased scrutiny, discussion, comment and review of the Government's activities.1 |
Justin Davidson
Senior Executive Lawyer, AGS Dispute Resolution
T 02 6253 7240
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The starting premise of the FOI Act is that any person is entitled to access any document upon request. 2 However, that premise is qualified: access is not available to an exempt document or to a conditionally exempt document if its disclosure would be contrary to the public interest.3
The exemptions to the general right of access are set out in Part IV of the Act. Some of those exemptions are designed to protect information that attracts legal obligations of confidence or otherwise requires protection due to its confidential nature.
Documents containing material obtained in confidence
Section 45 – 'Documents containing material obtained in confidence' – is the obvious place to begin. It provides:
(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence.
The orthodox application of s 45 usually involves importing the doctrines of equitable obligations of confidence. Section 45 is likely to apply where a document:
- contains information that is identifiable with specificity
- was communicated in a mutual understanding of confidence
- has the necessary quality of confidentiality, where its proposed disclosure is not authorised and its unauthorised disclosure will cause detriment.4
An example is ACP Magazines Limited and IP Australia.5 In this case the applicant sought access to a statutory declaration by a prospective trademark registrant in support of its application for registration. In upholding the s 45 exemption claim over some of the content of the declaration, the Acting Freedom of Information Commissioner found that the content was inherently confidential because:
- it was known to only a limited group
- on its face it had been communicated in the expectation that it would be kept confidential
- material published by IP Australia held out that this type of material in declarations would be treated confidentially
- disclosure to the FOI applicant would be unauthorised and, in the context of an ongoing trademark registration dispute, could cause the prospective registrant some detriment.
While most s 45 cases turn on equitable principles, some have explored whether contractually based obligations of confidence can 'found an action' that triggers s 45. In 'B' and Brisbane North Regional Health Authority6 the Queensland Information Commissioner was prepared to hold that they could. However, the Administrative Appeals Tribunal authorities on the point tend the other way, drawing a distinction between acts founding an action in breach of contract and acts founding an action in breach of confidence as the rationale for excluding the former from the test in s 45.7
Another question is whether a threatened breach of statutory confidentiality provisions gives rise to a s 45 claim. The Administrative Appeals Tribunal has been more willing to at least entertain such an argument.8 In National Australia Bank Ltd and Australian Competition and Consumer Commission9 the Freedom of Information Commissioner referenced a statutory confidentiality regime when finding that witnesses had a reasonably held expectation that 'protected information' falling within that regime would be treated confidentially. That was a finding made within a mainstream analysis of equitable principles, rather than a finding of a standalone foundation for a s 45 claim based solely on the operation of the secrecy provision under consideration.
Other exemptions
Section 45 is not the only provision that can potentially exempt obligations of confidence. For example, trade secrets and confidential commercial information may be exempted under
ss 47 or 47G. This occurred in 'DN' and Department of Agriculture.10 In that case the Freedom of Information Commissioner exempted contingency plan information for emergency situations during live animal exports on the grounds that it had inherent commercial value that would be destroyed or diminished by disclosure.
In a similar way, there is a rich vein of authority for the proposition that legitimately held expectations of confidentiality on the part of witnesses or complainants in an investigation are worthy of protection. In FT and Civil Aviation and Safety Authority11 a s 45 claim was upheld in precisely this circumstance.
More typically, this argument is articulated under s 47E (operation of agencies) within a claim that disclosure will discourage complainants and witnesses from coming forward in future or participating fully for fear that their contributions will not be kept confidential. A recent example of this is 'HX' and Australian Federal Police.12 In this matter the FOI applicant sought access to a report by the AFP's professional standards unit on code of conduct breach allegations. In exempting witness statements and the witness's identifying information, the Acting Information Commissioner said (at [18]):
I think that the context of confidentiality of complaints and investigations of this nature, even after the investigations have been concluded, supports the management or assessment of personnel functions of the AFP in dealing with alleged misconduct by officers, principally by encouraging candour.
Where the identity of the source of information is itself confidential, s 37(1)(b) provides an exemption. While the exemption protects the identity of the informant and not the information they provide, it can also protect information if that protection is necessary to preserve the confidentiality of the informant. In some cases, that may be the whole of the information provided by them.13
Returning to statutory confidentiality provisions, s 38 picks up and applies some 2 dozen such regimes (listed in Schedule 3). The general effect of s 38 is that, where disclosure of a document would ordinarily breach a specified secrecy provision, that document is exempt from disclosure under the FOI Act.
Information communicated in confidence by or on behalf of a foreign government, an international organisation or a State or Territory government is explicitly protected under ss 33(b) and 47B(b) respectively. In one respect this exemption is easier to satisfy than s 45: it does not require the information to have a necessary quality of confidence.14
Confidential government deliberations
The exemption provisions above focus primarily on obligations of confidence owed to persons outside the Commonwealth Government. Section 45 explicitly excludes from its protection actionable confidences owed to 'an agency, the Commonwealth or Norfolk Island'.
But other exemptions recognise that, where the maintenance of confidentiality in intra-Commonwealth communications is essential, a good basis for withholding the material can be made out. For example, s 34 protects material necessary to ensure the continued confidentiality of Cabinet deliberations.
The notion that, at times, government deliberations must necessarily attract a measure of confidentiality is articulated most frequently (and contentiously) in connection with s 47C. That provision conditionally exempts 'deliberative matter' – that is, matter 'in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, of consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of' agencies, ministers or the Government.
As a conditional exemption, it protects any part of a document that would be contrary to the public interest to disclose. In the context of weighing the public interest in the disclosure of government deliberations about the tenure of Allan Asher, former Commonwealth Ombudsman, Forgie DP recently15 made this observation (at [77]):
I accept the public service needs to be able to give totally frank advice to Ministers. I also accept that there will be occasions on which its officers need to do so on an understanding that their advice will be confidential.
However, consistently with equitable notions of confidence, Forgie DP also considered that the passage of time may diminish the potency of claims of confidentiality over advice given to ministers (at [78]).
In another recent case,16 Bennett J (sitting as a presidential member of the Administrative Appeals Tribunal) considered an application for access to the incoming government brief presented to the Attorney-General following the 2013 general federal election. In weighing the public interest in disclosure, her Honour said (at [103]):
In circumstances where an IGB necessarily contains incomplete material and analysis and is prepared for a new Minister in a new Government, it is important that those preparing an IGB do so without concern as to the consequences of doing so … It is important that those preparing the deliberative content of IGBs continue to understand that it may be not only frankly but also fully and in the knowledge that it is confidential to the intended recipient/s. It is then up to the Minister and the Secretary to determine any discretionary release.
Concluding observation
The cases discussed in this article demonstrate that the prospect of dishonouring a reasonably held expectation of confidentiality will often be a reliable foundation for a claim of exemption from disclosure under the FOI Act. While s 45 is the obvious starting point, depending on the circumstances in which the obligation of confidence arises, other exemptions may also be relevant.
For those administering the FOI Act, a key challenge is obtaining evidence that enables them to conclude that any expressed expectation of confidence is in fact well founded. A bare assertion of an expectation of confidence, first articulated at the time the FOI request is received, will rarely be sufficient. Also, the mere marking of documents as 'in confidence' will not be sufficient. While the marking may indicate that some information in the document has an inherent quality deserving of exemption, in FOI analysis a mark on a document is not the end of the inquiry but the beginning.
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1 Section 3, heavily paraphrased.
2 Section 11 with s 11A(3).
3 Section 11A(4)–(5).
4 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443. Whether detriment must be separately established remains contentious, but the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 assume it should be proven (at [5.143], [5.155]). It may be sufficient to point to 'the detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism' (Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 per Mason J).
5 [2013] AICmr 20.
6 (1994) 1 QAR 279 at [43]. See also Watt v Forests NSW [2007] NSWADT 197.
7 See, for example, Matthews and Australian Securities and Investments Commission [2010] AATA 649 (Matthews) at [123].
8 Matthews at [124] ff (though finding the argument was not made good on the facts).
9 [2013] AICmr 84 at [15] ff.
10 [2014] AICmr 123.
11 [2015] AICmr 37.
12 [2016] AICmr 1.
13 Petroulias v Commissioner of Taxation [2006] AATA 333.
14 Secretary, Department of Foreign Affairs v Whittaker (2005) 143 FCR 15. Note, however, that the State and Territory exemption is subject to a public interest test and that, in that way, questions of the inherent confidentiality of the information might become relevant.
15 Secretary, Department of Prime Minister and Cabinet and Wood (Freedom of information) [2015] AATA 945.
16 Dreyfus and Secretary Attorney-General's Department (Freedom of information) [2015] AATA 962.
Confidentiality in Commonwealth contractsThis article explores the unique issues that the Commonwealth must deal with when it considers confidential information in contracts. It also provides some tips to assist Commonwealth entities to better understand the issues at play. |
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Stuart Hilton
Senior Executive Lawyer
T 03 9242 1431
Lottie Flaherty
Senior Lawyer
T 02 6253 7164
Joseph Cram
Lawyer
T 02 6253 7070
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What supplier information could the Commonwealth agree to keep confidential?
It is often standard commercial practice to include very broad confidentiality provisions in contracts. These provisions require both parties to treat the contract and the information provided and generated under it as confidential.
However, Commonwealth entities must comply with a range of Commonwealth accountability and reporting requirements that affect how the Commonwealth approaches confidential information in contracts. Therefore, entities need to take a more considered approach to designating or accepting certain information as confidential.
Public accountability obligations require entities to appropriately limit the inclusion of confidentiality obligations in agreements. Also, under public accountability obligations Commonwealth entities may be required to report to the relevant Minister, and to Parliament and its committees, on particular arrangements or projects or they may need to disclose information to others under Commonwealth legislation. Therefore, contracts need to reflect these public accountability and disclosure obligations.
These obligations are peculiar to government contracting and can mean that the Commonwealth's position on confidentiality in its contracting arrangements is different from the approach that commercial parties might take to confidentiality in their private dealings.
Procurement
Under the Commonwealth Procurement Rules (CPRs), submissions in response to a request from a Commonwealth entity (that is, tender response documents and other procurement-related material that a potential supplier submits to the Commonwealth) must be treated as confidential both before and after the award of a contract (para 7.21). This is usually spelled out in a clause of the relevant approach-to-market documentation.
When negotiating confidentiality obligations in a contract with a preferred supplier, the Commonwealth must consider additional policy requirements that apply to:
- 'commercial information' of the supplier that is included in the terms of the contract
- information that the contractor will create or provide as a result of performing the contract.
In accordance with the policy guidance, entities should not agree to treat information as confidential except to the extent that the entity has determined that the supplier's information satisfies the 'Confidentiality Test' in accordance with the Department of Finance (Finance) Confidentiality Throughout the Procurement Cycle policy.
The Confidentiality Test comprises four criteria:
- the information to be protected must be specifically identified
- the information must be commercially 'sensitive'
- there is a real risk that the disclosure of the information would cause unreasonable detriment to the owner of the information or another party
- the information was provided under an understanding that it would remain confidential.
Supplier claims of confidentiality must be measured against the four criteria in the Confidentiality Test. Finance's guidance on the application of the Confidentiality Test suggests that only a small amount of supplier information would pass it.
The guidance that Finance provides on its website includes further commentary on the criteria and a number of case studies that explain why certain types of information may or may not meet the requirements of the Confidentiality Test. AGS has also provided some tips on applying the test: see Express Law No 239.
Whatever decisions entities make about confidentiality, entities should ensure that they document their assessment and reasons for deciding whether to accept or reject a supplier's claim for confidentiality.
Grants
The position is less strict for Commonwealth grants under the Commonwealth Grant Rules and Guidelines (CGRGs) – there is no equivalent of the Confidentiality Test discussed above.
However, the CGRGs do emphasise the importance of entities ensuring that they meet their transparency and public accountability obligations in administering Commonwealth grants. Accordingly, it is good practice for entities to avoid agreeing to keep information confidential where this would be inconsistent with these obligations (see para 5.1 of the CGRGs). For this reason, Commonwealth entities may wish to adopt an approach to grants similar to their approach to procurements.
Other types of agreements
Other types of contractual arrangements that are not procurements or grants may need to impose confidentiality obligations on the Commonwealth. Examples are loans and employment contracts. As with grant agreements, while some of the specific policy requirements discussed above may not apply to these other agreements, entities may wish to adopt a similar approach to confidentiality.
What information should the Commonwealth require suppliers to keep as confidential?
In many circumstances the Commonwealth itself will want suppliers to keep information confidential. The CPRs provide that 'When conducting a procurement and awarding a contract, relevant entities should take appropriate steps to protect the Commonwealth's confidential information' (para 7.20).
A number of government policy and legal requirements prevent disclosure of certain information (for example, classified information under the Protective Security Policy and 'secret' information under Commonwealth secrecy legislation) or give the public access to other types of information (for example, the Freedom of Information Act 1982 and the Privacy Act 1988). Most entities have well-developed processes that apply to decisions about when, what and how such information will be released. Under a contract with a supplier, entities may provide the supplier with other types of third-party information that the supplier should be required to treat as confidential (for example, material licensed from third parties that must be given to a supplier).
Accordingly, the default approach for many Commonwealth entities is often to require contractors to treat all information that the entity develops or provides as confidential. Many entities also include provisions that cover secrecy and security requirements concerning the information that is likely to be disclosed or created under the contract. It is important to review these standard provisions to ensure they are appropriate for the particular contract.
In addition to a confidentiality clause in the contract, there may be other steps that should be taken. For example, where a supplier needs to be given personal information or other information that is particularly sensitive, entities may need to develop bespoke arrangements for the treatment of confidential information, such as specific deeds of confidentiality or non-disclosure agreements with supplier and subcontractor personnel.
Can confidentiality obligations arise outside the terms of the contract?
Personnel undertaking grants administration and procurement activities should be aware of how easily confidentiality obligations can arise in relation to supplier information, regardless of what request documentation, grant guidelines or contracts might say.
When tendering for work or performing a contract, suppliers may provide or develop information that they express to be confidential. Personnel within Commonwealth entities must be careful not to make representations or give undertakings that they will maintain the confidentiality of suppliers' commercial information that are contrary to the relevant approach to market and/or contract, because this may result in an obligation of confidentiality arising at law (that is, independently of the contract). Such obligations could be inconsistent with the Commonwealth's legislative and policy requirements.1
What are Commonwealth entities' reporting obligations?
Commonwealth entities have reporting obligations where contracts contain clauses that require the Commonwealth to keep information confidential. These obligations are found in a number of places, including the:
- CPRs
- CGRGs
- Senate Procedural Order of Continuing Effect: Entity Contracts (the Senate Order).
The Senate Order requires entities to report contracts entered into in the past 12 months with a consideration value of $100,000 or more that contain:
provisions requiring the parties to maintain confidentiality of any of its provisions, or whether there are any other requirements of confidentiality, and a statement of the reasons for the confidentiality.2
The similarities in and differences between the sources of reporting obligations are described in Annex A.
What must be reported under the Senate Order?
Resource Management Guide No 403: Meeting the Senate Order on Entity Contracts (RMG-403) provides guidance to entities on how to meet the reporting requirements under the Senate Order. RMG-403 contains a reporting template and Minister's letter to help entities meet the requirements of the Senate Order.
First, to determine whether a contract needs to be reported, entities need to assess whether the contract requires the parties to:
- keep information contained in the contract as confidential
- keep information generated during the performance of the contract as confidential.3
Secondly, entities need to identify whether the obligation of confidentiality relates to specifically identifiable information. RMG-403 provides:
Most of the contracts listed contain confidentiality provisions of a general nature that are designed to protect the confidential information of the parties that may be obtained or generated in carrying out the contract.
As a general rule, the only contracts that must be specifically reported are contracts with contractual provisions that require the Commonwealth to keep specific information confidential. For example, the standard confidentiality clause in the Commonwealth Contracting Suite contains confidentiality obligations for the supplier. These do not need to be reported unless there is a specific confidentiality obligation on the Commonwealth.
Entities should be aware of situations where the Commonwealth may be required to keep information confidential even though it has not agreed to this. For example, if a contract contains a provision that allows a supplier to unilaterally specify information that the Commonwealth must treat as confidential (which would not meet the Confidentiality Test) then it may be appropriate to report the contract.
How accurately have Commonwealth entities applied the Confidentiality Test and their reporting obligations?
Paragraph (5) of the Senate Order requests the Auditor-General to audit a selection of contracts that entities have reported and provide a report to Parliament indicating whether entities are using confidentiality provisions inappropriately.
The most recent Performance Audit Report4 by the Australian National Audit Office (ANAO) found that, generally speaking, entities were complying with the reporting requirements in a timely manner.
However, the report suggests that there is room for improvement in how entities apply Finance's Confidentiality Test and report confidentiality provisions in contracts. In particular, the ANAO found that of the 101 contracts audited:
- 22 contained a specific confidentiality provision that did not accord with Finance's Confidentiality Test
- 59 were incorrectly reported, either because the confidentiality section stated 'nil', 'not applicable' or 'none specified' (29 contracts) or because the section did not actually contain a specific confidentiality provision (that is, it contained only a general confidentiality provision concerning information that was to be obtained or generated as part of the delivery of the contract) (30 contracts).
The ANAO also said in its report:
Most government contracts contain general confidentiality provisions and entities publish an overarching statement with their Senate Order listing advising of the existence of, and reasons for, the inclusion of such provisions. General confidentiality provisions are not required to be reported where an overarching statement is supplied.5
What future changes should Commonwealth entities look for?
AusTender must now be used to report procurement contracts under the Senate Order
As of the 2015–16 financial year, to meet the requirements of the Senate Order, entities must use AusTender reporting for procurement contracts. However, given the list of contracts on AusTender concerns procurements, it is unlikely to be a complete list for the purposes of the Senate Order, because the Order has a broader application (for example, it covers grants and other non-procurement agreements). If entities accurately record their procurement contracts on AusTender and reference this listing on their website, they will meet the Senate Order obligations for their procurement contracts.6 However, they will still need to ensure they are meeting the Order requirements for non-procurement contracts.
Changes to reporting requirements from 1 July 2017
Under para (9A) of the Senate Order, from 1 July 2017 the Order will also apply to Corporate Commonwealth entities (except trading public non-financial corporations as classified by the Australian Bureau of Statistics).
Tips for Commonwealth entities
Tip 1: Make sure your request documentation (including draft contracts) reflects the Commonwealth's requirements
Approach-to-market documentation and grant guidelines should:
- inform potential participants in the process how the entity will handle their submissions
- inform potential participants how the entity will assess any claim for confidentiality (that is, in the case of procurements, against the Confidentiality Test described in Finance guidance) and request that the participant provide details in support of any claim of confidentiality in their submission so that the claim can be assessed
- inform potential contractors of the proposed confidentiality regime in the draft contract or grant agreement.
Tip 2: Be aware of how obligations of confidentiality can arise
If a supplier claims that information is confidential (by marking a document as 'confidential' or 'commercial-in-confidence') and this is inconsistent with the terms of the contract then entity personnel should:
- object to this marking
- request that the information be removed
- expressly say that they do not regard the information as confidential.
This will help reduce the risk of confidentiality obligations arising outside the terms of the contract.
Tip 3: Conduct a case-by-case assessment of confidentiality claims, document the reasoning and update the agreement
Entities should conduct a case-by-case assessment of each contractor claim for confidentiality – including, in the case of procurements, by applying the Confidentiality Test to each – and document the decision. Care should be taken to ensure the contract or grant agreement then accurately reflects the outcome.
Tip 4: Report specific confidentiality provisions
Entities should ensure that they report specific confidentiality obligations under the Senate Order in accordance with the requirements of the Order. Remember that the Senate Order applies to more than just procurement contracts.
Annex A – Confidentiality reporting requirements
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Senate Order |
Commonwealth Procurement |
Commonwealth Grant Rules and Guidelines |
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Which Commonwealth entities does this apply to? |
Until 1 July 2017, applies to non-corporate Commonwealth entities within the meaning of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).7 From 1 July 2017 it will also apply to most corporate Commonwealth entities. |
Relevant entities, being non-corporate Commonwealth entities, and prescribed corporate Commonwealth entities that must comply with the CPRs when performing duties related to procurement. |
All non-corporate Commonwealth entities (entities) subject to the PGPA Act. |
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What is the monetary threshold for reporting? |
The Senate Order applies to contracts that provide for a consideration to the value of $100,000 or more. |
The reporting thresholds are:
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No minimum or maximum monetary threshold. |
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What contracts need to be reported? |
All forms of government agreements, based on their legal status, rather than the name given to the arrangement, including procurement contracts, lease arrangements, sales contracts, certain grants and funding agreements, and employment contracts.8 |
These obligations apply to a procurement contract, being an arrangement (which includes a contract, agreement, deed or understanding) for the procurement of goods or services under which relevant money is payable or may become payable (including standing offers and panels). |
These obligations apply to grants.9 |
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Other reporting thresholds/ restrictions |
The Senate Order requires the list to be limited to each contract entered into by the entity that has not been fully performed or that has been entered into during the previous 12 months. |
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Reporting of confidentiality clauses |
Required. |
Required. |
Required. |
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Timeframe within which the report must be made |
The Minister is to table a letter every 6 months, no later than 2 calendar months after the end of each financial and calendar year (ie by 31 August and 28–29 February each year) outlining compliance with the Senate Order (identifying where to find each entity's contract listing). |
Procurement contracts and amendments to them must be reported by Commonwealth entities within 42 days of entering into or amending the contract. |
An entity must publish on its website information on individual grants no later than 14 days after the grant agreement takes effect.10 |
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1 As set out in AGS Factsheet No 25, at law, where one party communicates to another private or secret matters on the express or implied understanding that the communication is for a confidential purpose, these communications are treated as confidential. See http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/contract-issues/confidentiality-procurement-cycle/tips.html.
2 Paragraph (2)(c) of the Senate Order.
3 See paras 46–47 of RMG-403.
4 Of the 93 entities required to publish contract listings under the Senate Order, 78 had done so or advised that no relevant contracts had been entered into in 2014 by the relevant due date. A further 14 entities complied within a month of the due date. By the end of the 2014–15 financial year, only one entity had not yet published a listing.
5 Para 3.6, footnotes omitted.
6 See paras 19–24 of RMG-403.
7 Section 11 of the PGPA Act provides that there are 2 types of Commonwealth entity: a corporate Commonwealth entity, which is a Commonwealth entity that is a body corporate; and a non-corporate Commonwealth entity, which is a Commonwealth entity that is not a body corporate.
8 See footnote 1 on p 11 of the ANAO report; and paras 4 and 28 of RMG-403, which provides that contracts formed through grants, sales of goods/services by an entity, disposals by an entity and other financial arrangements (non-procurement contracts) are to be included in the internet listing. RMG-403 also provides that purchases of goods, services, land or buildings, leases of premises, employment contracts that do not involve enterprise bargaining agreements, and agreements between the Commonwealth and a separate legal entity from the Commonwealth are all likely to constitute a contract for the purposes of the Senate Order (see para 33).
9 See paras 2.3–2.6 of the CGRGs for what constitutes a grant.
10 See paras 5.3 and 5.4 of the CGRGs. Once operational, entities must report on the whole-of-Australian-Government register instead.
Impact of non-disclosure obligations on pre-trial processesThis article considers the impact that non-disclosure obligations can have on pre-trial processes in civil court proceedings. In particular, we examine non-disclosure obligations that may apply to:
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Matthew Blunn
Senior Executive Lawyer
AGS Dispute Resolution
T 02 6253 7424
Paul Vermeesch
Deputy Chief Solicitor Dispute Resolution
T 02 6253 7428
Louise Rafferty
Senior Executive Lawyer
AGS Dispute Resolution
T 02 6253 7005
Christopher Behrens
Senior Executive Lawyer Acting Co-Team Leader, AGS Dispute Resolution
T 02 6253 7543
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Non-disclosure obligations
Statute and the general law1 impose a range of non-disclosure obligations on the Commonwealth and its officers and employees and on other persons. These obligations can potentially prevent those people from disclosing information, including in court proceedings.
Non-disclosure obligations under statute
There are many hundreds of secrecy provisions in Commonwealth statutes.2 Some, but not all, of these secrecy provisions themselves make it a criminal offence to contravene the non-disclosure obligation that the secrecy provision imposes. Contravention of any non-disclosure obligation imposed by Commonwealth statute may also be a criminal offence under s 70 of the Crimes
Act 1914.
Statutory non-disclosure obligations operate according to the terms of the statute. Below we consider 3 examples of non-disclosure obligations that apply generally to Commonwealth information. Many other non-disclosure obligations are specific to particular types of information relevant to particular agencies.
Section 70 of the Crimes Act
Section 70 of the Crimes Act is a general offence provision concerning unauthorised disclosures. Under s 70 it is an offence for a Commonwealth officer to publish or communicate any fact or document which comes into the officer's knowledge or possession by virtue of their being a Commonwealth officer and which it is the officer's duty not to disclose. It is also an offence for a former officer to disclose such information where it was their duty to not disclose it when they ceased to be a Commonwealth officer.
Section 70 itself does not contain a non-disclosure duty. Rather, it criminalises a disclosure that contravenes an applicable non-disclosure duty. Regulation 2.1 of the Public Service Regulations 1999 is an example of a non-disclosure duty breach of which can be an offence under s 70 of the Crimes Act.3
It is not an offence under s 70 if the officer (or former officer) was authorised to make the disclosure.4
Regulation 2.1 of the Public Service Regulations
Regulation 2.1 of the Public Service Regulations is a secrecy provision that applies generally to current public servants in the Australian Public Service (APS).5
It provides that, subject to specified exceptions, an APS employee must not disclose certain types of information, including:
- confidential information
- information the disclosure of which would be prejudicial to the Commonwealth on certain specified grounds.6
Regulation 2.1 sets out exceptions to those non-disclosure obligations, including where disclosure is:
- in the course of the APS employee's duties
- authorised by law.
Privacy Act
The Privacy Act 1988 imposes on Commonwealth agencies some general restrictions on the disclosure of personal information. The non-disclosure obligations under the Privacy Act are subject to exceptions, including where disclosure is:
- required or authorised by or under an Australian law7 or a court or tribunal order8
- reasonably necessary for the establishment, exercise or defence of a legal or equitable claim.9
Exceptions to statutory non-disclosure obligations
In each case, careful consideration needs to be given to the terms of the particular secrecy provision, the information in issue and the circumstances of the proposed disclosure.
Some statutory non-disclosure provisions have limited exceptions. For example, some would not permit an authorisation that would enable the voluntary disclosure of information for the purposes of the conduct of a court proceeding.
It is not unusual for secrecy provisions in Commonwealth legislation to permit a disclosure that is mandated by a legal obligation such as a court order.10 That is not always the case. For example, some statutory secrecy provisions make it clear that a court order cannot compel a person to provide information'.
Non-disclosure obligations under general law
Non-disclosure obligations under the general law include:
- equitable or fiduciary obligations that, if breached, would found an action for breach of confidence11
- express or implied contractual obligations of confidentiality.12
Exceptions to non-disclosure obligations under the general law
The general principle is that an action for breach of confidence or breach of contract cannot be made out where the disclosure is legally mandated – for example, by a court order. It is also now reasonably common for statute to compel (or at least enable) the use of information (even where that information is confidential) in decision-making and regulatory investigations.
A person who owes a non-disclosure obligation under the general law can be expected to take appropriate steps to discharge their obligation until any overriding disclosure obligation comes into operation, unless the person to whom an ongoing confidentiality obligation is owed relieves them of that obligation.
Disclosure obligations of parties in court proceedings
A party to court proceedings is subject to a range of processes for compulsory disclosure of information, including discovery. Other compulsory court processes for compelling a party or other person to provide another party with information include interrogatories, notices to produce and subpoenas.13
Some statutes relating to the conduct of civil proceedings impose disclosure obligations on a party. For example, s 26 of the Civil Procedure Act 2010 (Vic) provides that, subject to some exceptions, there is an overarching obligation on a party and its legal representatives to disclose to another party the existence of all documents that are, or have been, in that person's, possession, custody or control of which the person is aware and which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.
In the interests of timely, efficient and cost-effective conduct of litigation, and consistent with a party's overarching statutory obligations in that regard,14 parties sometimes agree to voluntarily provide information to each other. These arrangements are commonly referred to as informal discovery. This is in contrast to formal discovery, where a court order mandates the disclosure of the information.
A party that proposes to provide informal discovery or to otherwise volunteer information needs to ensure they comply with any applicable non-disclosure obligations under statute or the general law.
A party that is complying with a formal discovery order or other compulsory court process also needs to ensure they comply with any applicable non-disclosure obligations under statute or the general law. As noted, usually the terms of statutory non-disclosure obligations allow parties to disclose information if a court order requires them to do so.
Confidential information and discovery
The Commonwealth is not required to disclose information pursuant to a compulsory court process such as discovery where the information is privileged on grounds of legal professional privilege.15
The Commonwealth may also rely on public interest immunity (PII) to resist disclosure of information pursuant to a compulsory court process. PII is a common law principle based on the exercise of judicial discretion to prevent the disclosure of information where that disclosure would be contrary to the public interest.
PII is never more than a claim until the court has undertaken a balancing exercise on the respective competing public interests. That balance turns on the importance of the information to the administration of justice – the very same information may be protected in one context (for example, where it is unimportant to a minor civil case) and not in another (for example, where it is critical to proving the innocence of a person charged with serious crimes).
Confidentiality obligations under the general law do not prevent compliance with compulsory court processes such as discovery orders.
The Default Document Management Protocol attached to Federal Court Practice Note CM6 Electronic technology in litigation reflects a common practice that agreed or court-ordered management protocols for discovery may:
- include a means for a party to identify a discovered document as being in whole or part subject to a claim of privilege or a claim of confidentiality
- permit non-disclosure of documents that are subject to a claim of privilege or confidentiality
- permit redactions of parts of documents that are subject to a claim of privilege or confidentiality.
The Federal Court's Default Document Management Protocol states that:
- if a party presses for access to a discovered document which is claimed in whole or part to be privileged or confidential, the Court can rule on that issue
- where the Court determines that a document is privileged or confidential, access to the document or parts of it is restricted in accordance with any order.
Confidentiality is not a ground for non-disclosure of a relevant document. A court may decline to require disclosure of confidential information that is of no or marginal relevance to matters in issue in the proceeding. Where confidential information is relevant, the Court may make appropriate orders to require some extent of disclosure (for example, to legal representatives) while protecting, to the extent possible, the confidentiality of the information.16 A party asserting confidentiality has an onus to prove that the information is in fact confidential.
Court orders permitting a prospective witness to disclose information to a party
Courts routinely make orders requiring a party to file and serve its evidence by a specified date. These orders do not impose any obligations on prospective witnesses.
A court can issue a subpoena requiring a person to attend a hearing to give evidence. A subpoena does not require the witness to give any information to any party in advance of
the hearing.
A party is free to approach any person as a prospective witness. In the absence of a court order, a prospective witness is not obliged to give any information to any party. However, if the prospective witness chooses to confer with a party, they are required to comply with any applicable non-disclosure obligations.17
Courts rarely consider making orders about any pre-trial disclosures by a prospective witness. In practice, communications between a party and a prospective witness are generally a matter for them alone.18
To avoid any forensic disadvantage, usually a party will not reveal to another party the identities of their prospective witnesses until witness statements or affidavits are filed.19
AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 (AS Ruling No 3) is an example of an unusual case where a court made orders to facilitate a prospective witness's disclosure of information to a party's legal representatives.
In AS Ruling No 3 the Victorian Supreme Court made orders to enable the plaintiff's lawyers to interview potential witnesses for trial without the potential witnesses being at risk of breach of non-disclosure obligations under the Australian Border Force Act 2015 (the ABF Act).20 The Court held that, consistent with the common law and the provisions of the Civil Procedures Act 2010 (Vic), the Court should do everything appropriate to facilitate a fair trial. The Court considered that to ensure a fair trial in a civil proceeding it is vital that a party is able to present its evidence as freely as possible, including by way of the interviewing of prospective witnesses prior to trial – where the prospective witness is willing to confer.21
The Court's orders established a confidential process by which, following consideration of a confidential solicitor's affidavit about the prospective evidence, the Court could identify to the plaintiff's solicitors a particular witness who was permitted by the Court's orders to disclose information to the plaintiff's solicitors without breach of the ABF Act.
The Court was not prepared to make blanket orders in the abstract that would relieve potential witnesses of all other non-disclosure obligations that might apply in addition to those under the ABF Act. The Court was prepared if needed to consider applications for further orders relieving potential witnesses of additional non-disclosure obligations.22 While it did not rule on the issues the Court made the following observations about relieving prospective witnesses of non-disclosure obligations under the general law, such as equitable and contractual obligations of confidentiality:23
- While the Court has power to ensure that a witness at trial is relieved from confidentiality obligations when giving evidence (absent some statutory provision), the position in regard to pre-trial disclosure is not entirely clear.
- The High Court in A v Hayden (No 2) (1984) 156 CLR 532, 557 noted that obligations of confidentiality will not be enforced where their application might involve 'an interference with the administration of justice'.
- The Court should not intervene until the nature of the obligation of a particular witness is identified with some precision. Then the question of the public interest in the administration of justice and the competing considerations can be examined.
- In practical terms, the question of relief from confidentiality obligations of this sort will need to be approached on a witness-by-witness basis.
- If there is an impasse as to the effect of confidentiality obligations in the pre-trial process, the court may need to fashion its own processes to deal with the issue. This could include use of a confidential deposition of a relevant witness as that may reduce the scope for argument about appropriate processes.
Confidentiality obligations of parties
Courts can also make specific orders to protect the confidentiality of information that is the subject of discovery or other compulsory court processes. Compliance with court-ordered confidentiality regimes in discovery is potentially complex and expensive. Parties should give careful consideration to the need for such a regime and should be very careful to require the party asserting that a document is confidential to demonstrate that the document is in fact confidential.24
However, court proceedings are generally conducted publicly and there are limited circumstances in which the courts will order suppression or non-publication of evidence given in proceedings. Confidentiality itself is generally not a basis for courts making orders at a hearing for the suppression or non-publication of evidence in the proceedings. Generally a higher test is applied. For example, the provisions in Pt VAA of the Federal Court of Australia Act 1976 on suppression and non-publication orders give the Federal Court power to make those orders on specified grounds, including that the order is necessary:
- to prevent prejudice to the proper administration of justice
- to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security.
There are examples of courts making suppression or non-publication orders concerning sensitive commercial information where they are satisfied that the order is in the interests of the administration of justice. Tests based on the interests of the administration of justice are not satisfied simply because information is confidential.
Confidentiality orders made for the purposes of discovery may hinder but do not prevent a party from seeking a variation of the orders to enable some evidential use of the information.
Harman obligation
Where a party or other person involved in a proceeding obtains access to information under a compulsory court process, they automatically have an obligation not to use or disclose the information except for the purposes of that proceeding. This obligation is commonly known as the 'implied undertaking', although the High Court has clarified that it is more aptly described as an 'obligation of substantive law' owed by those who gain access to the relevant information.25 For that reason, this article adopts the expression 'the Harman obligation', based on the leading UK authority, Harman v Secretary of State for the Home Department [1983] 1 AC 280.
The Harman obligation is owed to the court and breach of the obligation is potentially a contempt of the court and subject to serious sanctions.26 In addition to binding parties, and their solicitors and barristers, to litigation, the Harman obligation binds to the litigation any stranger who comes into possession of the information with knowledge of its provenance in legal proceedings. This is so even if the person is not aware of the actual existence of the obligation (ignorance of the law being no excuse).27
The Harman obligation does not prevent a party using information obtained from other parties as evidence in the proceedings in which the obligation arose.
The Harman obligation is subject to any statutory power which allows the information to be used or disclosed (for example, in an investigation by a regulatory agency with the necessary statutory power).28 The obligation also yields to curial processes in other litigation.29 For example, a person in possession of information subject to the Harman obligation arising in one proceeding can be compelled to disclose that information in another proceeding by a discovery order or a subpoena.30
The Harman obligation ordinarily subsists until the information is received into evidence31 or is referred to in 'open court' in such a way as to disclose its contents.32 It is also possible to seek release from the Harman obligation so as to use the information for purposes extraneous to the proceeding in which the obligation arose. An application for such a release is ordinarily made to the court in the proceedings in which the obligation arose.
Parliamentary privilege
The term 'parliamentary privilege' refers to the special rights and powers of individual houses of a parliament and to the various protections given to participants in parliamentary proceedings, including members of parliament. Australian federal laws on the subject of parliamentary privilege are set out in the Parliamentary Privileges Act 1987. Section 16(3) provides that:
In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
- questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
- otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
- drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
Parliamentary privilege restricts the use of evidence concerning proceedings in Parliament in courts and other tribunals. Section 16(2) of the Parliamentary Privileges Act 1987 sets out a broad definition of proceedings in Parliament.
The way in which the privilege applies can vary according to the type of court order – for example, in some cases (like a subpoena) it can be enough to disclose the information between the parties with clear warnings against its use in the proceeding; and in others (like discovery) the inclusion of the parliamentary information in an affidavit may itself be a prohibited evidentiary use.33
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1 The general law comprises judge-made law, including the common law and equity.
2 In its 2010 report, the Australian Law Reform Commission identified 506 secrecy provisions in Commonwealth legislation: see Secrecy laws and open government in Australia, ALRC Report No 112.
3 See R v Goreng Goreng [2008] ACTSC 74. In that case the ACT Supreme Court also held that reg 2.1 did not breach the implied constitutional guarantee of freedom of political communication and was valid.
4 It is not clear that s 70 is the source of any power to give authorisation for a disclosure and, if so, by whom. In AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 the Court left this issue open.
5 See also s 28 of the Public Governance, Performance and Accountability Act 2013 for a general non-disclosure obligation that applies to Commonwealth officials.
6 Regulation 2.1 of the Public Service Regulations 1999 provides that the prohibition against disclosure of confidential information applies regardless of whether the disclosure would found an action for breach of confidence under the general law.
7 'Australian law' is defined by s 6 of Privacy Act 1988 to mean:
(a) an Act of the Commonwealth or of a State or Territory; or
(b) regulations, or any other instrument, made under such an Act; or
(c) a Norfolk Island enactment; or
(d) a rule of common law or equity.
8 See cl 6.2(b) of Australian Privacy Principle 6 in Schedule 1 to the Privacy Act 1988.
9 See cl 6.2(c) of Australian Privacy Principle 6 in Schedule 1 to the Privacy Act 1988 and item 4 in the table in s 16A of the Privacy Act 1988.
10 For example, it would not be a breach of the Privacy Act 1988 or of reg 2.1 of the Public Service Regulations 1999 or an offence under s 70 of the Crimes Act 1914 if the disclosure were mandated by a binding court order.
11 See Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 as to the elements of an action by the Commonwealth for breach of confidence for disclosure of government information. In addition to establishing the usual elements of an action for breach of confidence, the Commonwealth must also establish some detriment to the public interest, such as the disruption of ordinary government business. See AGS Legal Briefing No 64: Identifying and protecting confidential information (4 July 2002).
12 An employee can have a non-disclosure obligation where they are lawfully and reasonably directed not to disclose the information in issue. An employee's implied contractual duty of good faith and fidelity also comprises non-disclosure obligations. See Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 for a discussion of these contractual obligations in the APS context.
13 Subpoenas are generally only used to compel third parties to produce information. Discovery is generally the appropriate mechanism for disclosure of information between parties, but subpoenas are used on occasion.
14 See, for example s 37M of the Federal Court of Australia Act 1976.
15 AGS Legal Briefing No 87: Legal professional privilege and the government (15 July 2008).
16 Paragraph 7.82 of the Law Council of Australia's Federal Court case management handbook (available on the website of the Federal Court of Australia) states that, although parties may agree to redact confidential material in discovered documents, other parties should be given access to that information at least via their external legal advisors where the material is confidential but also relevant to facts and issues in the proceedings.
17 See, for example, Deacon v Australian Capital Territory [2001] ACTSC 8.
18 See, for example, Deacon v Australian Capital Territory [2001] ACTSC 8.
19 In AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642, the Supreme Court of Victoria made orders as set out in the ruling at [57] that required confidential disclosure to the Court of the identity of a prospective witness but did not require disclosure of that information to other parties.
20 The orders are set out at [57] of AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642.
21 AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 at [12] and [61].
22 The Court (Forrest J) considered that it was not necessary at that stage to make orders about other non-disclosure obligations: see [44] - [52] and [58] of AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642. As observed by Forrest J at [56] he took a somewhat different approach to that taken by McDonald J in making orders for a similar purpose in Kamasaee v Commonwealth, Supreme Court of Victoria, No SCI 2014 6770. Justice McDonald did not give written reasons for making those orders.
23 AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 at [47] - [62].
24 See the Law Council of Australia's Federal Court case management handbook (available on the website of the Federal Court of Australia), in particular Part G Redaction in Chapter 7 Discovery of documents; Part F Confidentiality in Chapter 14 Competition law; and Chapter 15 Appendix A – Example confidentiality regime. Courts often make orders to establish confidentiality regimes where discovery involves sensitive commercial information.
25 Hearne v Street (2008) 235 CLR 125 at [102]–[108].
26 Hearne v Street (2008) 235 CLR 125. See also the discussion in AGS Legal Briefing No 75: Implied undertakings in litigation (14 September 2005) but note that it pre-dates Hearne v Street.
27 Hearne v Street (2008) 235 CLR 125 at [109]–[112].
28 ASC v Ampolex Ltd (1995) 38 NSWLR 504.
29 Esso Australia Resources v Plowman (1995) 183 CLR 10 at 33.
30 Boral Resources (Vic) Pty Ltd v CFMEU [2015] VSC 352 at [13]–[21] and cases cited therein.
31 Hearne v Street (2008) 235 CLR 125 at [96].
32 See, for example, r 20.03 of the Federal Court Rules 2011.
33 See the discussion in AGS Legal Briefing No 95: Parliamentary privilege (26 June 2012).
Protecting confidential information before courts and tribunals |
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Irene Sekler
Senior Executive Lawyer, AGS Dispute Resolution
T 02 6253 7155
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Information protected from disclosure on the basis that its release would be prejudicial to the public interest
Courts recognise that there are a number of well-established classes or categories of information the disclosure of which may be prejudicial to the public interest. These include certain subsets of information pertaining to:
- the national security and defence of Australia
- entry into treaties and the conduct or carriage of international relations
- the identity of police informers or human sources
- law enforcement, defence and intelligence methodologies, capabilities and operations
- information submitted to or considered by Cabinet
- in some circumstances, information confidentially acquired by agencies to enable them to perform public functions or duties.
The classes of information for which protection can be sought are not closed. The touchstone for both new and well-recognised categories is whether there could be harm to the public interest if the information is disclosed.
Mechanisms that can be used to protect confidential information
In the course of litigation, situations may arise where confidential government information could be introduced into evidence. However, release of that information might be prejudicial to the public interest. There are a number of mechanisms to prevent the public release of that type of information before a court or tribunal.
Depending on the court or tribunal and on the information for which protection is sought, the following mechanisms may be considered. The facts of the situation will determine which is most appropriate in the circumstances.
- A public interest immunity claim. Public interest immunity is a common law principle which allows a court or tribunal to exercise its discretion to exclude information from evidence where disclosure of that information would be contrary to the public interest. Public interest immunity applies to pre-trial disclosures, including discovery, interrogatories and subpoenas, as well as to material sought to be adduced into evidence. It is also available for administrative processes, such as the execution of warrants and coercive powers.
- An application to have evidence excluded under s 130 of the Evidence Act 1995 (Cth) or similar provisions in other Acts. In proceedings to which the Evidence Act applies, s 130 gives a court power to make a direction that information relating to 'matters of state' not be adduced as evidence. This direction may be made if the public interest in preserving the confidentiality of the information outweighs the public interest in admitting it into evidence. Similar sorts of provisions can be found in other laws or rules of court.
- Implementing a protective order regime. The court or tribunal may be able to implement a protective order regime that allows for limited disclosure of the sensitive information while protecting the public interest. The kinds of orders that may be sought include orders concerning non-publication of evidence or other material, orders closing the court or tribunal while evidence is given or submissions are made, orders concerning the use of pseudonyms and ciphers, and orders concerning the screening of witnesses. The exact capacity of the court or tribunal to make the orders and the test for making such orders varies depending on the jurisdiction and the empowering legislation, but the broad underlying principle is generally whether the orders are necessary to secure the proper administration of justice.
- Invoking the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The Act establishes an important and useful framework for protecting national security information in court proceedings. National security is defined, in s 8, to mean Australia's 'defence, security, international relations or law enforcement interests'. Section 10 defines 'international relations' as 'political, military and economic relations with foreign governments and international organisations'.
'Top secret' – the provisions keeping Commonwealth information confidentialThere are hundreds of secrecy provisions contained in Commonwealth legislation.1 These provisions typically prohibit people who obtain information in the course of working for the Commonwealth from disclosing that information, except in circumstances where an exception or a defence applies. A large number of secrecy provisions have criminal penalties attached. |
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Leo Hardiman
National Group Leader
Office of General Counsel
T 02 6253 7074
Tara McNeilly
Senior General Counsel
T 02 6253 7374
Olivia Abbott
A/g Senior General Counsel
T 02 6253 7023
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There are secrecy provisions of a general nature (for example, provisions that apply to govern the disclosure of information by all Commonwealth employees), as well as specific provisions that apply to particular people or particular categories of information. The types and features of secrecy provisions are discussed in further detail below.
The obligations imposed by secrecy provisions apply in addition to any privacy obligations arising under the Privacy Act 1988. The interaction of secrecy provisions and the Privacy Act is also discussed briefly below.
General secrecy provisions
Two key provisions of a general nature that apply to Commonwealth employees are contained in s 70 of the Crimes Act 1914 and reg 2.1 of the Public Service Regulations 1999 (the PS Regs).2
Section 70(1) of the Crimes Act says:
A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, commits an offence.
(Section 70(2) also imposes an equivalent obligation on former Commonwealth officers.)
If a Commonwealth officer has a duty not to disclose information they obtain in the course of doing their job, s 70 makes it an offence to disclose that information. Importantly, s 70 does not itself create a duty not to disclose information. It only applies where a person otherwise has a duty not to disclose information. This duty must therefore be found elsewhere, such as in a specific secrecy provision or reg 2.1 of the PS Regs.
Regulation 2.1 of the PS Regs is another provision of a general nature that applies to all Australian Public Service (APS) employees. It prohibits an APS employee from disclosing information they obtained or generated in connection with their employment if:
- it is reasonably foreseeable that the disclosure could be prejudicial to the effective working
of government, including the formulation or implementation of policies or programs
(reg 2.1(3)), or - the information was, or is to be, communicated in confidence within the Government, or was received in confidence by the Government from a person or persons outside the Government (reg 2.1(4)).
However, reg 2.1(5) contains a number of exceptions to these prohibitions. For example,
regs 2.1(3) and 2.1(4) do not prevent a disclosure of information by an APS employee if the:
a) information is disclosed in the course of the APS employee's duties
b) information is disclosed in accordance with an authorisation given by an Agency Head
c) disclosure is otherwise authorised by law, or
d) information is already in the public domain as the result of a lawful disclosure.
Specific secrecy provisions
As noted above, there are a range of specific secrecy provisions that apply to impose confidentiality requirements on particular people or to particular categories of Commonwealth information.
Some specific secrecy provisions prevent the disclosure of any information that a particular category of people (for example, Australian Federal Police employees) obtain while working for the Commonwealth.3
Other provisions protect the confidentiality of particular categories of information. For example, Div 355 of Sch 1 to the Taxation Administration Act 1953 (TAA 1953) protects the confidentiality of 'protected information', being information that was disclosed or obtained under or for the purposes of a taxation law, that relates to the affairs of an entity, and that identifies (or is reasonably capable of being used to identify) the entity (s 355-30). Further, some provisions protect the confidentiality of 'commercial information'. For example, s 114(1) of the Food Standards Australia New Zealand Act 1991 imposes a duty on particular people not to disclose any 'confidential commercial information' in respect of food.4 Other provisions, commonly contained in law enforcement legislation, protect the confidentiality of information relating to an investigation. One example is s 34ZS(1) of the Australian Security Intelligence Organisation Act 1979, which makes it an offence to disclose information indicating that a warrant has been issued, relating to the content of a warrant, or relating to the questioning or detention of a person in connection with a warrant.
Specific secrecy provisions typically contain exceptions or defences that permit relevant information to be disclosed in particular circumstances. One common exception allows relevant information to be disclosed in the 'performance of duties'. This type of exception ordinarily permits disclosures that are incidental to the carrying out of 'the duties of an officer's employment' (that is, those functions and actions that are authorised as part of his or her employment).5 Although it will necessarily depend on the particular statutory context, disclosures may be permitted under a 'performance of duties' type exception even if they are not specifically contemplated by the relevant legislation. For example, in some cases an officer may be able to respond to a statutory information-gathering notice in the performance of his or her duties.
There are a range of other defences and exceptions contained in specific secrecy provisions. Importantly, if information is about an individual, a disclosure of that information may be prohibited even if the individual has provided their consent to the disclosure. For example, s 355-35 of the TAA 1953 expressly says that consent is not a defence in relation to a disclosure of protected information about a taxpayer's affairs. Other provisions may imply that consent is not, of itself, sufficient to permit disclosure.
Interaction with the Privacy Act
The Australian Privacy Principles (APPs) contained in Sch 1 to the Privacy Act also contain rules that apply to the use and disclosure of 'personal information' (that is, information about an identified individual or an individual who is reasonably identifiable).
Under APP 6, if a Commonwealth agency holds personal information about an individual that was collected for a particular purpose, it must not use or disclose that information for any other purpose except in limited circumstances. Most relevantly for present purposes, the information can be used or disclosed for another purpose where the 'use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order'.
Where a secrecy provision clearly and specifically permits the disclosure of particular information, that disclosure will generally be 'authorised by law' and will be permitted
under APP 6.
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1 In its 2009 report, Secrecy laws and open government in Australia, the Australian Law Reform Commission identified 506 secrecy provisions contained in 176 Commonwealth laws (see 104).
2 Other examples are s 79 of the Crimes Act, which applies in relation to 'official secrets', and s 13(6) of the Public Service Act 1999, which says that an APS employee must 'maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff'.
3 See s 60A of the Australian Federal Police Act 1979.
4 'Confidential commercial information' in relation to food is defined in s 4 of the Act to mean a trade secret relating to food, or any other information relating to food that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.
5 See Canadian Pacific Tobacco Ltd v Stapleton (1952) 86 CLR 1 and Herscu v The Queen (1991) 173 CLR 276.
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