Legal Practice Briefing No. 14

Number 14

27 October 1994


There are two situations in which the need to consider
the protection of confidential government information can
arise. This briefing deals with the situation where an unauthorised disclosure
of confidential government information has occurred or
is proposed (for example, publication by the media of 'leaked'
information or documents). A different situation arises
where a lawful requirement for disclosure has been
made (for example, by way of court order, FOI request,
or statutory demand). In that situation the question arises
whether the government has any legal grounds to resist
the lawful requirement (for example, by way of a public
interest privilege claim or statutory exemption). It is
not the purpose of this briefing to deal with that situation.
Also, this briefing is limited to remedies that may be
available under the civil law. Responsibility for prosecutions
under the criminal law lies with the Director of Public

Bases of Claim


The Commonwealth can have copyright in its material (Part
VII of the Copyright Act 1968). Accordingly, the
Commonwealth has the normal remedies available to it for
a threatened or actual infringement of its copyright, including
an injunction, damages, account of profits, delivery up
of infringing copies (for example, documents or computer
disks created by the defendant). The fundamental deficiency
of copyright in relation to protection of confidential
information, however, is that in essence copyright only
protects the form of the work. Copyright 'is not infringed
by publishing information or ideas contained in the document
so long as the publication does not reproduce the form
of the literary work'(1).
Thus, if the purpose is to restrain disclosure of information
in a document, remedies based on copyright may be of no
practical use because the information can still be (and
on at least one occasion has been) published in a different

Ownership of Property

The Commonwealth can take legal action to recover its
property from a person who wrongly has that property. Thus,
a person who wrongly has a document or computer disk owned
by the Commonwealth can in appropriate circumstances be
compelled to deliver up the disk or document (that is,
the piece of paper) to the Commonwealth. Generally, however,
that remedy will be of no practical use in the present
context. In particular, the remedy does not extend to a
disk or document not owned by the Commonwealth, for example
where a copy of a Commonwealth document has been made on
the defendant's own computer disk or paper. Nor is the
defendant precluded from disclosing the contents of the
document. In some cases, however, it may be that by regaining
possession of its document (or of its own disk) the Commonwealth
would be assisted in identifying the source of the leak.

Restraining Breach of Criminal Law

It may be that threatened disclosure by a person of information
would, if it actually occurred, constitute a criminal offence
(for example, section 79 of the Crimes Act 1914 official
secrets). Generally, it appears unlikely that the threatened
commission of such an offence would be sufficient to obtain
an injunction restraining disclosure. In Commonwealth
v Fairfax, Mason J declined to grant an injunction
restraining an alleged threatened breach of section 79,
stating as follows (at pages 4950):

'The issue of an injunction to restrain an actual
or threatened breach of criminal law is exceptional.
The right, usually regarded as that of the Attorney-General,
to invoke the aid of the civil courts in enforcing the
criminal law has been described as "of comparatively modern
use", one which "is confined, in practice, to cases where
an offence is frequently repeated in disregard of a, usually,
inadequate penalty ... or to cases of emergency" ...
It may be that in some circumstances a statutory provision
which prohibits and penalizes the disclosure of confidential
government information or official secrets will be enforceable
by injunction. This is more likely to be the case when
it appears that the statute, in addition to creating
criminal offence, is designed to provide a civil remedy
to protect the government's right to confidential information.
I do not think that s 79 is such a provision. It appears
in the Crimes Act and its provisions are appropriate
to the creation of a criminal offence and to that alone.
penalties which it imposes are substantial. There is
nothing to indicate that it was intended in any way to
the rights of the Commonwealth to relief by way of injunction
to restrain disclosure of confidential information or
infringement of copyright. There is no suggested inadequacy
in these
two remedies which would lead me to conclude that it
is appropriate to regard s 79 as a foundation for injunctive

Breach of Confidence

A court will 'restrain the publication of confidential
information improperly or surreptitiously obtained or of
information imparted in confidence which ought not to be
divulged' (Fairfax at page 50). The plaintiff must
show that there will be an unauthorised use of such information
to the 'detriment' of the plaintiff. In relation to what
constitutes 'detriment' to a government in this context,
Mason J said in Fairfax (at pages 5152):

'The equitable principle has been fashioned to
protect the personal, private and proprietary interests
of the citizen, not to protect the very different interests
of the executive government. It acts, or is supposed to
act, not according to standards of private interest, but
in the public interest. This is not to say that equity
will not protect information in the hands of the government,
but it is to say that when equity protects government information
it will look at the matter through different spectacles.

'It may be a sufficient detriment to the citizen
that disclosure of information relating to his affairs
will expose his actions to public discussion and criticism.
But it can scarcely be a relevant detriment to the government
that publication of material concerning its actions will
merely expose it to public discussion and criticism. It
is unacceptable, in our democratic society, that there
should be a restraint on the publication of information
relating to government when the only vice of that information
is that it enables the public to discuss, review and criticize
government action.

'Accordingly, the court will determine the government's
claim to confidentiality by reference to the public interest.
Unless disclosure is likely to injure the public interest,
it will not be protected.

'The court will not prevent the publication of
information which merely throws light on the past workings
of government, even if it be not public property, so long
as it does not prejudice the community in other respects.
Then disclosure will itself serve the public interest in
keeping the community informed and in promoting discussion
of public affairs. If, however, it appears that disclosure
will be inimical to the public interest because national
security, relations with foreign countries or the ordinary
business of government will be prejudiced, disclosure will
be restrained. There will be cases in which the conflicting
considerations will be finely balanced, where it is difficult
to decide whether the public's interest in knowing and
in expressing its opinion, outweighs the need to protect

Confidential information which comes into the public domain
loses its confidentiality. Thus, it is not possible to
restrain further publication of such information. However,
publication a considerable time ago in an obscure journal
does not necessarily mean that the information is currently
in the public domain. Also, prior publication of an assertion
of fact made by a person outside government does
not necessarily meet the public domain test in relation
to the proposed publication of information from an authoritative
source within government confirming the accuracy
of the earlier assertion. While the assertion is not confidential,
the question of its correctness remains confidential.

Because the government's ability to restrain disclosure
of information depends on a balancing of the public interest,
a court may not restrain disclosure of 'things done in
breach of national security, in breach of the law (including
fraud) and ... matters which involve danger to the public'
(Fairfax at page 57). This 'defence' does not extend
beyond 'misdeeds of a serious nature and importance to
the country'(2).
Even where the defence applies, however, it does not automatically
follow that publication to the world at large is justified(3) -
a limited disclosure to a person in authority will often
suffice. This latter point is of special relevance in relation
to the Commonwealth because of the statutory mechanisms
which exist for complaints of wrongdoing (for example, Ombudsman
Act 1976 and Inspector-General of Intelligence
and Security Act 1986).


If there is a threat of immediate disclosure of material
substantially prejudicing the public interest, it is appropriate
to seek an ex parte interim injunction.

Difficulties can arise in relation to presentation of
the evidence necessary to prove the Commonwealth's case.
There are fundamental general principles that courts are
open to the public and that defendants and their legal
representatives are entitled to have access to all evidence
presented by plaintiffs. However, if proceedings of the
kind currently in question had to be conducted wholly in
accordance with those principles it would usually (if not
always) be impossible to bring the proceedings.

In such circumstances courts have been prepared to make
orders restricting access to evidence, including access
by a defendant, and to the court file. There is an established
exception to the open justice principle in cases where
the observance of that principle would defeat the ends
of justice. In particular, it has been stated that 'if
the factor of national safety appears to endanger the due
administration of justice, e.g., by deterring the Crown
from prosecuting in cases where it should do so, a court
may sit in private'(4).

In addition to the above common law principle, section
85B of the Crimes Act empowers courts exercising federal
jurisdiction to make closed court orders, and to restrict
publication of and access to material, where that is 'expedient
in the interest of the defence of the Commonwealth'. It
has been successfully argued that in section 85B 'defence'
is wider than military defence and includes Australia's
security generally. Also, section 50 of the Federal
Court of Australia Act 1976 empowers the Federal Court
to make orders restricting publication of material 'in
order to prevent prejudice to the administration of justice
or the security of the Commonwealth'.

Usually after the proceedings have been commenced it becomes
possible to identify with precision what future disclosures
are proposed by the defendant. What has in practice then
occurred has been a negotiating process whereby agreement
is reached on deletions. That agreement can then be embodied
in a court order or in undertakings by the defendant to
the court.

Possible Remedies for Breach of Confidence

Injunction Restraining Publication

As an alternative to an injunction it has been common
to accept an undertaking by the defendant given to the
court (breach of the undertaking thus being a contempt).

Order for Destruction or Delivery-up of Documents

Destruction, or delivery-up to the Commonwealth, of documents
containing the information in question can be ordered both
in relation to documents owned by the Commonwealth and
other documents (for example, copies made by the defendant
and fresh documents created by the defendant). Such an
order is made, not to punish the defendant but to perfect
an injunction which the court has granted. Thus, it appears
that the order will be made only in cases where the court
has granted an injunction.

Damages or an Account of Profits Made by the Defendant

The Commonwealth does not normally institute breach of
confidence proceedings for the purpose of gaining a monetary
remedy. However, it does not follow that such remedies
are inappropriate.

Disclosure of Sources of Information

It is 'a fundamental principle of our law ... that the
media and journalists have no public interest immunity
from being required to disclose their sources of information
when such disclosure is necessary in the interests of justice'(5).

'Anton Piller' or Alternative Orders

This order authorises the plaintiff to enter the defendant's
premises and seize offending documents. The purpose of
the order is to prevent a dishonest defendant from destroying
relevant documents before they become subject to the court's
processes. Alternative orders are that the defendant deliver
relevant documents to the Registrar, specify the location
of the documents, identify the persons to whom documents
had been supplied, and assist in retrieving them. Another
alternative is an order restraining the defendant from
destroying or parting with possession of documents pending

v Fairfax (1980) 147 CLR 39 at 58 (Mason J)

v Pressdram (1973) 1 All ER 241 at 260

(UK) v Guardian Newspapers (No. 2) (1988) 3 WLR
776, at 804 and 807

(UK) v Leveller Magazine (1979) AC 440 at 471

Fairfax Sons Ltd v Cojuangco (1988) ALR 1 at 6

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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