Government Solicitor

illuminat.us

AGS-magazine-Issue1

Justice Stephen Gageler

of the High Court on what it is

to be a government lawyer

Confidentiality

5 feature articles on different

aspects of confidentiality

Office of General Counsel,

AGS Dispute Resolution and

AGS Commercial profiles

Government

Australian

Solicitor


u

Employment Law Forum 2016

In this issue

u

u

19 October 2016, Hotel Realm, Canberra

AGS has been advising on public sector employment law and workplace

relations matters for many years. We have been involved in numerous

high-profile individual HR matters, and our lawyers have had critical input

into all of the recent employment and workplace relations law reforms.

We have advised agencies on the implementation of those reforms in

Commonwealth employment.

If you would like to be contacted about this forum please contact

michelle.easte@ags.gov.au

Administrative Law Forum 2016

11 November 2016, Hyatt Hotel, Canberra

Administrative law remains central to the functioning of the Australian

Government. This forum will bring you up to date with the latest

developments in administrative law and their practical implications

for Commonwealth administrators, decision-makers and lawyers.

If you would like to be contacted about this forum please contact

michelle.easte@ags.gov.au

Intellectual Property Forum 2017

Date TBA Canberra 2017

For those people who are responsible for managing intellectual

property or developing intellectual property policies.

If you would like to be contacted about this forum please contact

michelle.easte@ags.gov.au

Australian Government Solicitor

Issue 1: 2016

© Commonwealth of Australia, represented by

AGS 2016. Apart from any use permitted under

the Copyright Act 1968 or unless otherwise

expressly indicated all other rights are reserved.

Requests for further authorisation should be

sent to webhelp@ags.gov.au

The material in this magazine is provided to AGS

clients for general information only and should

not be relied upon for the purpose of a particular

matter. Please contact AGS before any action

or decision is taken on the basis of any of the

material in this magazine.

ISSN 2206-7388 (Print)

ISSN 2206-737X (Online)

This biannual magazine is published by AGS

Client Services. If you would like to subscribe to

the print version, please email ags@ags.gov.au or

call Tiff Brown on 02 6253 7246.

Editor and art director

David Whitbread

Guest writer

Justice Stephen Gageler

Writers

Sam Miley

Diana Icasate

Designer

Mandy Orr

Illustrator

Tiff Brown

Web publisher

James Gergely

Photographers

Andrew Sikorski

Paul Chapman

Introducing Australian

Government Solicitor

magazine!

Welcome to the first edition

of our new magazine.

Without an annual report to show

you what we do and how we do it,

we thought we’d create this new

biannual publication to highlight

some of our recent cases and tell

you a bit about our practice and

our people.

We are also delighted that

Justice Gageler agreed that we could

publish his inspiring speech from

the launch of our recently released

biography of Dennis Rose AM QC,

the Commonwealth’s first Chief

General Counsel.

Please send us any feedback

and comments or request subjects

you’d like covered in future issues by

emailing ags@ags.gov.au

I do hope you enjoy our first issue.

Louise Vardanega PSM

The Australian Government Solicitor A/g

4

GUEST WRITER

Justice Stephen Gageler of the

High Court of Australia

What it is to be a government

lawyer

10

CASE STUDY

Norfolk Island governance reform

12

CASE STUDY

Commonwealth v Director, Fair

Work Building Industry Inspectorate

14

CASE STUDY

Department of Agriculture and

Water Resources concessional

loan schemes

15

FEATURE

Confidentiality

Confidentiality and the Public

Interest Disclosure Act 2013 15

Confidentiality and freedom

of information 17

Confidentiality in

Commonwealth contracts 21

Impact of non-disclosure

obligations on pre-trial processes 27

Protecting confidential

information before courts

and tribunals 34

‘Top secret’ – the provisions

keeping Commonwealth

information confidential 36

39

AGS news

40

AGS’s Office of General Counsel

42

AGS Dispute Resolution

44

AGS Commercial

46

Farewell to the Australian

Government Solicitor Ian Govey AM

www.ags.gov.au

48

AGS workforce and market

2

update

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Australian government solicitor

ISSUE 1: 2016

What is it to be a lawyer to

government in the true sense?

What it is

to be a

government

lawyer

Justice Stephen Gageler of the High Court of Australia

This article is taken from Justice Gageler’s speech on the

occasion of his launch in April 2016 of Without fear or favour:

The life of Dennis John Rose AM QC by Carmel Meiklejohn,

co-published by the Attorney-General’s Department and AGS.

It is good to be back at the site of

the old Robert Garran Offices, where

I once had the privilege of working

closely with Dennis Rose.

Most of us attending this launch

are now, or have been, government

lawyers. Some of us knew and

worked with Dennis. Those of us

within that category remember

Dennis with esteem and affection.

We remember Dennis the man. We

remember the calm demeanour,

the kindly disposition, the gentle

spirit, the love of music, the love of

bushwalking, the little giggle. This

book will bring back the humanity

of Dennis Rose.

There are some in the room

(and there will be many, I hope, in

years to come) who did not know

Dennis but who will have the

opportunity to read this book and to

be inspired by him. To those within

that category, the great benefit

of the book is that it illustrates,

through the example of one life of

public service, a life very well lived,

just what it is to be a government

lawyer – or, as Dennis liked to say, a

counsel to the Crown.

It reduces to 3 traits which Dennis displayed in spades. Two

are common to any good lawyering and the third is unique to

government lawyering.

1 > The first trait, common to any good lawyering, is intellectual rigour .

Intellectual rigour has at its base honesty and intelligence and

implies consistency.

2>

The second trait is creativity : the ability not only to see problems, but to

create solutions.

Combining creativity with intellectual rigour can involve following a path

which is not obvious, which is not direct, but which is true. Between the

problem and the solution, the good lawyer treads a sure path from common

ground to contestable ground, carrying others who need to be convinced.

3>

Those are the 2 traits you’ll find in any good lawyer.

The trait unique to government lawyering (or at least most strongly

displayed in government lawyering) is a sense of purpose .

The sense of purpose is not adequately captured in the notion of acting for a

client; it transcends the issues of the moment and the government of the day.

It involves adherence to a concept of a continuing polity, the fabric of which

is held together by enduring principles and values consistently recognised

and acted upon. Some of those enduring principles and values have found

their way into the law reports. But many have not, in part because skilful and

conscientious government lawyers have been astute enough to avoid the

problems that might end up in court.

JUSTICE STEPHEN GAGELER

4

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Australian government solicitor

ISSUE 1: 2016


Upholding the principles and values of

a government lawyer in a time of crisis

‘requires courage and conviction.

Ian Govey AM, author Carmel Meiklejohn and

Justice Gageler at the launch of Without fear

or favour

Without fear or favour

Upholding the principles and values

of a government lawyer in a time of

crisis requires courage and conviction.

These attributes are well-captured in

the title Carmel Meiklejohn chose for

this book, Without fear or favour.

Most of us (certainly those of us

who are getting on in age) can reflect

back over our careers as lawyers to

think of an episode or event that

in some way made us what we are.

I can think of a few in my own life,

most of them bruising, all of them

formative. They consolidated the

person that I had become to that

point, and helped to form the person

that I was to become after it.

For Dennis’s career, the defining

event came when he was relatively

young – 38 years old. The story is

told in this book. Dennis also told

me about it several times, and I wish

I could now remember more of the

detail and recall his exact words. What

I do remember is the climax: Dennis

raising his right fist, bringing it down

on the table and saying words to

the effect of, ‘No, Attorney-General,

that will not be a loan for temporary

purposes. If you go ahead without

Loan Council approval, you will be

committing a criminal offence!’

That moment stuck in the psyche

of Dennis Rose. It epitomised the

man who was to become the most

respected government lawyer of his

generation: striving to get to ‘yes’,

but prepared to say ‘no’ without fear

(although I suspect there was in that

moment an element of trepidation)

and certainly without favour.

Mastery and precision

There is a photograph in the book of

the Attorney-General’s Department in

1964 – almost all male, unsurprisingly.

Sir Garfield Barwick, then Attorney-

General, appears standing in the

front row. Dennis had been in the

Department for just 2 years. The

following year, Dennis left the

Department to spend a couple of

years at the Australian National

University, re-joining the Department

in 1968.

During that interlude at ANU,

Dennis was asked to revise a little

out-of-date textbook called Lewis’

Australian bankruptcy law. It showed

a lot about Dennis that the book he

thoroughly revised, brought through

the 5th edition in 1967, and took

through to the 11th edition in 1999,

was always called Lewis’ Australian

bankruptcy law.

It showed his humility. It showed

his constancy. It showed his mastery

of technical subject matter. It showed

the precision of his thought. And

the fact that the little book (I’m

sure, despite publisher’s pressures)

remained, throughout those

7 editions, a little book showed

his economy of language.

Chief General Counsel

By 1980, Dennis had become head

of the Advisings Division (which

later became the General Counsel

Division). In 1989, in recognition of his

exceptional talent, he was appointed

to the newly created position of

Chief General Counsel. He was Acting

Solicitor-General for protracted

periods between 1992 and 1994. He

was made a Commonwealth Queen’s

Counsel, one of the very few, and one

of the first. He was made a member of

the Order of Australia in 1992.

Legal development in Australia

The time in which Dennis held

senior positions within the Attorney-

General’s Department was a time

of great legal development within

Australia. It was also a time of great

change in Australian society.

Many of the legal structures set

in place during that time can be

seen in retrospect to have been of

a quasi-constitutional nature: the

Family Court of Australia; the Federal

Court of Australia; the entire modern

administrative review system (the

Commonwealth Ombudsman; the

Administrative Appeals Tribunal,

the Administrative Decisions

(Judicial Review) Act 1977 (Cth)); selfgovernment

in the Northern Territory

and in the Australian Capital Territory;

abolition of appeals to the Privy

Council; severing of constitutional

ties between Australia and the United

Kingdom (with the negotiation and

enactment of the Australia Acts);

cross-vesting of court jurisdiction

(about which Dennis had a deep

and abiding concern); statutory

recognition and protection of native

title in the Native Title Act 1993 (Cth).

The time saw the expanded use of

heads of Commonwealth legislative

power which had until then lain

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Australian government solicitor

ISSUE 1: 2016

dormant or underutilised. Modern

reliance on the external affairs power

and on the corporations power began

– though there might be some dispute

about this – with the World Heritage

Properties Conservation Act 1983 (Cth).

Modern reliance on the taxation

power, the final nail in the coffin of

Barger’s case (R v Barger (1908) 6 CLR

41; [1908] HCA 43) began with the

Training Guarantee Acts and came

into its own with the Superannuation

Guarantee Acts. These were nationbuilding

pieces of legislation. With

their creation Dennis was intimately

involved.

Two legislative schemes in which

Dennis was involved were not in the

nation-building category but show

his brilliant and creative technical

lawyering at its best. The earlier was

the Commonwealth Places (Application

of Laws) Act 1970 (Cth). You would

think that there would be no other

scheme more technical and difficult

to devise. But such a scheme exists,

in the Child Support (Assessment) Act

1989 (Cth) and its various interlocking

pieces of legislation. Dennis devised

that scheme too. Both schemes

withstood intensive High Court

scrutiny.

Advocacy

The changing times contributed to

an expansion of litigation. This book

tells of Dennis’s involvement in much

of that litigation. It singles out for

special mention his involvement

in the Tasmanian Dams Case

(Commonwealth v Tasmania (1983)

158 CLR 1; [1983] HCA 21) and it tells

wonderfully of his involvement in Cole

v Whitfield (1988) 165 CLR 360; [1988]

HCA 18.

Before Cole v Whitfield, there

had been 140 cases on s 92 of the

Constitution. Dennis personally

undertook a comprehensive review of

each of those cases. Not only did he

contribute to the formulation of the

new doctrine, which was presented

in an extraordinarily coordinated

argument by the Commonwealth and

State Solicitors-General, but he also

worked out exactly how each of the

140 previous cases would have been

decided under that new doctrine were

it to be accepted. I saw that document

once. Not only was it extraordinarily

comprehensive; it was extraordinarily

concise, extending for no more than

10 or 12 pages.

I asked one of my associates to

find cases in which Dennis and I had

appeared in court together. From

memory, I thought that Dennis would

have appeared in about a dozen cases

and I would have been with him 3 or

4 times. Dennis actually appeared as

counsel in 66 cases. Fifty-five of them

were in the High Court: 31 as junior

counsel between 1984 and 1992, and

24 as Queen’s Counsel between 1992

and 1994. I appeared as his junior in

12 of those cases.

Where Rose QC was particularly

effective as an advocate in the High

Court was in creating the 3-page

summary of argument that was

handed up at the beginning of oral

argument and that set out, in logical

and concise propositions, the way

through the difficulties of the case.

He brought to his advocacy the same

concise thinking that he brought

to every other part of his work as a

lawyer.

The most memorable case in which

I appeared with Dennis was not in the

High Court. It was in the Full Court

of the Federal Court, in Brisbane,

relating to the Royal Commission into

Aboriginal Deaths in Custody. It was

1989, in the middle of the Australian

pilots’ strike. We left Canberra in a

light aircraft with 2 seats in the front,

1 seat in the back. I was in the back.

We left at 6 pm on a winter’s night.

We got to Tamworth and refuelled

at about 8 pm. We set out from

Tamworth, through a thunderstorm

in the dead of night, with Dennis in

the front, me in the back, and with

the pilot continuously tapping some

instrument on the dashboard which

obviously wasn’t working. I was

traumatised by the time we arrived,

but arrive we did. Dennis seemed

unfazed. We appeared the next day

and won the case. Mercifully, we were

able to get a commercial flight back.

The gold standard of advisers

Dennis was good as an advocate. But

he was best as an adviser. When it

came to advising, Dennis Rose has

been described as having been the

‘gold standard’. I have always had

some difficulty with that description;

it makes me think of an outdated

approach to international monetary

policy. But I understand exactly what

it was meant to convey. There was

none better.

I recently re-read one of his few

advices that were published. It was

an advice to the Republic Advisory

Committee in 1993. It is available on

the internet and it should be read

because it shows what a written

opinion should be.

Writing an opinion

A Dennis Rose opinion was an opinion. It was not

a declaration. It was not a discussion paper. It gave

a direct answer to a direct question. If the question

asked was in any way obscure, the question was

rephrased to make it sensible and the question

as rephrased would be answered very sensibly.

Reasons would be provided, and nothing but

reasons would be provided.

A Dennis Rose opinion was short, direct, succinct

and decisive. The opinion would acknowledge

uncertainty where uncertainty existed, but would

never prevaricate. Where there was uncertainty as

to the ultimate answer, the uncertainty was due to

the vagary of the subject matter or the inherently

predictive nature of the assessment to be made.

It was never due to lack of precision of thought or

expression on the part of the author.

Coming away from my all-tooshort

association with Dennis, I was

convinced that I could never be able

to think like Dennis Rose, but I was

determined that I would at least try to

write like Dennis Rose. I’m still trying.

Congratulations to AGS and

AGD for commissioning this book.

Congratulations to Carmel for writing

it, for chronicling the history, and for

capturing so well the personality and

the professional competencies of

Dennis Rose. Treat it as launched.

Without fear

or favour:

The life of

Dennis Rose AM QC

by Carmel Meiklejohn

Dennis Rose AM QC was a broadly

experienced government lawyer who

ultimately became Australia’s first

Chief General Counsel. In that role,

he was both confidant and adviser

to Prime Ministers, Cabinets and

Attorneys-General. This account

of his life and its impact is quite

inspirational.

Soft cover $22 (GST inclusive)

To order your copy,

please email ags@ags.gov.au

or phone Tiff Brown

T 02 6253 7246

8 9


Australian government solicitor

ISSUE 1: 2016

Hilary Manson

1 case study

Emma D’Arcy

Alice Kingsland

Wancy Lam

Nithya Ramesh

Emilie Sutton

Norfolk Island

governance reform

AGS advised the Department of Infrastructure and Regional

Development on key aspects of Norfolk Island governance reform.

This reform is significant and legally

complex. It involves implementing

new governance arrangements for

Norfolk Island so that:

• most core Commonwealth laws

apply (such as those relating

to income tax, social security,

immigration, biosecurity, customs

and health)

• New South Wales law generally

applies to Norfolk Island to cover

State-level matters (for example,

laws regulating the provision of

health services)

• there is an elected local council (the

Norfolk Island Regional Council) to

perform certain local-governmenttype

functions, such as the

classification, use and management

of community land.

In the 2014–15 financial year, AGS

assisted with the first elements of the

reform, which included development

of the Norfolk Island Legislation

Amendment Act 2015 and associated

legislation.

In 2016–17, a dedicated AGS team

carried out a range of further work

Photo from Wikipedia Commons

on the project, including assisting the

Department to develop a package

of Ordinances as part of the new

governance framework for Norfolk

Island. These Ordinances gave effect

to the Commonwealth’s policies on

the range of New South Wales laws

to be applied to Norfolk Island from

1 July 2016, and amended certain

laws that were made by the Norfolk

Island legislature and are continued

in existence under the Norfolk Island

Act 1979.

The team also drafted transitional

rules and advised on related matters,

including aspects of the service

delivery agreement entered into by

the Commonwealth and New South

Wales. Under this service delivery

agreement, New South Wales will

provide a range of State-level services

to Norfolk Island. Numerous AGS

lawyers also provided advice to other

relevant Australian Government

departments on the application of

various Commonwealth laws to

Norfolk Island from 1 July 2016.

AGS continues to assist the

Department with the Norfolk Island

governance reform project. This

year, our Norfolk Island reform team

included Senior General Counsel

Hilary Manson and Counsel Emma

D’Arcy, Alice Kingsland, Wancy Lam,

Nithya Ramesh and Emilie Sutton.

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Australian government solicitor

ISSUE 1: 2016

Commonwealth v Director,

Fair Work Building Industry

Inspectorate

In December 2015, the High Court of Australia delivered a landmark

decision reaffirming that parties to civil penalty proceedings are

able to make submissions to a court as to appropriate amounts of

pecuniary penalty for the court to impose in a given case.

The High Court’s decision in

Commonwealth v Director, Fair

Work Building Industry Inspectorate 1

(CFMEU) reaffirmed the

appropriateness and, in the case of

regulators, the desirability of parties

to civil penalty proceedings making

submissions, on an agreed or separate

basis, to a court as to the appropriate

pecuniary penalty amount to be

imposed. This is significant for the way

in which regulators run and resolve

cases, deal with respondents, and

direct their enforcement resources.

1 case study

The High Court’s decision in

CFMEU overturned a decision of the

Full Federal Court in the proceedings

in May 2015, that parties in civil

penalty proceedings could not make

submissions as to an appropriate

penalty amount. The Full Federal Court

based its decision on the principle

in Barbaro v The Queen 2 (Barbaro)

(a criminal proceeding) that the

prosecution was not permitted to

make a submission as to the range

of sentences that may be imposed

on an offender.

However, in CFMEU the High Court

unanimously found that the principle

in Barbaro does not extend to civil

penalty proceedings.

The High Court’s decision reinforces

basic differences between civil and

criminal proceedings and upholds

the approach to agreed penalties

established in NW Frozen Foods v ACCC 3

and Minister for Industry, Tourism and

Resources v Mobil Oil Australia Pty Ltd. 4

AGS acted for the Commonwealth

in the proceedings. Key regulators

involved were the Australian

Competition and Consumer

Commission, the Australian Securities

and Investments Commission, the

Australian Taxation Office, the Office

of the Fair Work Ombudsman and

the Director of the Fair Work Building

Industry Inspectorate (now Fair Work

Building and Construction).

The Solicitor-General appeared for

the Commonwealth before the High

Court, assisted by Tim Begbie, AGS

Senior General Counsel, with Ruth

Higgins, Counsel.

AGS lawyers Matthew Blunn,

Katrina Close and Sarida McLeod were

responsible for preparing the matter.

Katrina had this to say about the

experience of working on CFMEU:


The High Court’s

decision reinforces

basic differences

between civil

and criminal

proceedings ...


‘The experience of being before 7 judges of the High Court, with an exceptional

legal team, to consider an interesting point of law with significant consequences

for all our regulatory clients was a rare privilege.’

Sarida said: ‘This matter was perhaps the best introduction to the High Court

imaginable. The opportunity to not only watch some of the best counsel in

Australia argue a complex legal issue in front of a full bench of the High Court, but

also get an insight into how a range of regulators approach their enforcement

functions, is one I’m very grateful to have had.’

1

[2015] HCA 46; (2015) 326 ALR 476.

2

[2014] HCA 2; (2014) 253 CLR 58.

3

(1996) 71 FCR 285.

4

(2004) ATPR 41-993.

Matthew Blunn Katrina Close Sarida McLeod

The High Court’s decision was the

focus of discussion at the AGS Civil

Regulators Forum, held in April 2016.

Tim Begbie and AGS Senior Lawyer

Nathan Sinnathurai hosted a panel

discussion, featuring the ACCC’s

Special Counsel Peter Renehan and

ASIC’s Chief Legal Officer Michael

Kingston, that scrutinised the

common features of civil penalty

regimes; the role of regulators as

partisan, active and specialist litigants;

and ongoing aspects of the courts’

expectations of regulators as litigants.

The proceedings have reverted

to the Full Federal Court for

determination of penalty, with the

hearing taking place in May 2016.

At the time of publication, judgment

is reserved.

AGS published an Express law paper

on this topic in December 2015 – see

the ‘Publications’ section of the AGS

website.

12 13


Australian government solicitor

ISSUE 1: 2016

14

Clare Derix

1 case study

Department of Agriculture

and Water Resources

concessional loan schemes

Photo from Wikipedia Commons

Over the past 3 years, AGS

has helped the Department

of Agriculture and Water

Resources establish the

Farm Finance Concessional

Loan Scheme, the Drought

Concessional Loans Scheme

and the Drought Recovery

Concessional Loans Scheme.

Under these schemes, the

Commonwealth lends money to each

State, and to the Northern Territory.

Those jurisdictions then use the funds

to provide concessional loans to farm

businesses – to help them recover

from, and prepare for, drought.

AGS has advised the Department

on the design and structure of the

schemes, as well as constitutional,

legislative, contracting, commercial

law, compliance, freedom of

information, confidentiality and

risk issues.

We are the Department’s legal

negotiator of the loan arrangements

with each jurisdiction, and have

been responsible for drafting the

underpinning loan documentation

between the Commonwealth

and each State and the Northern

Territory. We also helped negotiate

arrangements with the Bureau of

Meteorology to provide national

maps and a web-based drought

identifier.

The Farm Finance Concessional

Loans Scheme has now closed, but

advice on the Drought Concessional

Loans Scheme and Drought Recovery

Concessional Loans Scheme

continues. Work on the new Dairy

Recovery Concessional Loans scheme

has also commenced. This scheme

is designed to assist dairy farmers

impacted by the decision of Murray

Goulburn and Fonterra in 2015–16 to

reduce milk prices. The Department

implemented the new scheme

on 1 July 2016. AGS is advising on

arrangements with a number of

jurisdictions.

At the outset of the Farm Finance

scheme, the Department had little

experience in undertaking this type

of assistance. AGS’s strategic advice

on the design and structure of the

scheme was integral to the successful

implementation of that scheme

within a short turnaround time.

AGS Senior Executive Lawyer

Clare Derix has played a lead role in

advising on the establishment and

contract management of all the

concessional loans schemes. Clare was

initially outposted to the Department

(from June 2013 to September 2013) to

provide hands-on assistance during

the design and negotiation phases

of the Farm Finance project. During

this period she gained insight into the

Department’s business drivers, as well

as a detailed understanding of the

issues of particular concern to each

jurisdiction.

Since completing her outpost, Clare

and her team in AGS Commercial have

continued advising the Department

on a variety of complex legal issues

affecting the schemes, and on

developing contracting options to

achieve the Department’s objectives.

The priorities and objectives for

each of the schemes have evolved over

time, necessitating a responsive and

flexible approach. Many requests for

advice have required consideration

of a range of challenging issues,

often within short timeframes. The

Department’s feedback to AGS on

the responsiveness and the quality

of strategic legal advice has been

consistently positive. Through our

continuing involvement in these

matters, we have accumulated

significant corporate knowledge

about the schemes, which the

Department increasingly relies upon.

Confidentiality and the Public Interest

Disclosure Act 2013

A 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.

Richard Harding

Special Counsel Dispute Resolution

T 02 9581 7671

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

Confidentiality

In this issue

Confidentiality and the Public Interest

Disclosure Act 2013 15

Confidentiality and freedom of information 17

Confidentiality in Commonwealth contracts 21

Impact of non-disclosure obligations on

pre-trial processes 27

Protecting confidential information before

courts and tribunals 34

‘Top secret’ – the provisions keeping

Commonwealth information confidential 36

15


Australian government solicitor

ISSUE 1: 2016

• 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.

Confidentiality

Confidentiality and freedom of information

The 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

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.

Justin Davidson

Senior Executive Lawyer, AGS Dispute Resolution

T 02 6253 7240

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

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).

16 17


Australian government solicitor

ISSUE 1: 2016

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 Authority 6 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 Commission 9 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 Authority 11 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

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.

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 recently 15 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]):

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.

18 19


Australian government solicitor

ISSUE 1: 2016

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.

Confidentiality

Confidentiality in Commonwealth contracts

This 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.

Stuart Hilton

Senior Executive Lawyer

T 03 9242 1431

Lottie Flaherty

Senior Lawyer

T 02 6253 7164

Joseph Cram

Lawyer

T 02 6253 7070

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 procurementrelated

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.

20 21


Australian government solicitor

ISSUE 1: 2016

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.

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-procurementcycle/tips.html.

2 Paragraph (2)(c) of the Senate Order.

22 23


Australian government solicitor

ISSUE 1: 2016

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 Report 4 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

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.

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.

6 See paras 19–24 of RMG-403.

24 25


Australian government solicitor

ISSUE 1: 2016

Annex A – Confidentiality reporting requirements

Which

Commonwealth

entities does this

apply to?

What is the

monetary

threshold for

reporting?

Senate Order

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.

The Senate Order applies to

contracts that provide for a

consideration to the value of

$100,000 or more.

Commonwealth Procurement

Rules

Relevant entities, being noncorporate

Commonwealth

entities, and prescribed corporate

Commonwealth entities that

must comply with the CPRs when

performing duties related to

procurement.

The reporting thresholds are:

• $10,000 for non-corporate

Commonwealth entities

• for prescribed corporate

Commonwealth entities:

– $400,000 for procurements

other than construction

services procurements

– $7.5 million for procurements

of construction services.

Commonwealth Grant

Rules and Guidelines

All non-corporate

Commonwealth entities

(entities) subject to the

PGPA Act.

No minimum or

maximum monetary

threshold.

Confidentiality

Impact of non-disclosure obligations on

pre-trial processes

This 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:

• information that one party provides to another, including by discovery of documents

• information that a party obtains from prospective witnesses, including for

preparation of witness statements.

What contracts

need to be

reported?

Other reporting

thresholds/

restrictions

Reporting of

confidentiality

clauses

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

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.

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).

Required. Required. Required.

These obligations apply

to grants. 9

Matthew Blunn

Senior Executive Lawyer

AGS Dispute Resolution

T 02 6253 7424

Paul Vermeesch

Deputy Chief Solicitor Dispute

Resolution

T 02 6253 7428

Non-disclosure obligations

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

Statute and the general law 1 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.

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

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.

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.

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.

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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 law 7 or a court or tribunal order 8

• 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.

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.

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

confidence 11

• 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.

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.

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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.

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.

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.

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].

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• 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

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.

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 evidence 31

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:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of

those proceedings in Parliament;

(b)

(c)

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

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).

32 33


Australian government solicitor ISSUE 1: 2016

Protecting confidential information before

courts and tribunals

Irene Sekler

Senior Executive Lawyer, AGS Dispute Resolution

T 02 6253 7155

Confidentiality

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.

• 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’.

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.

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Australian government solicitor ISSUE 1: 2016

Confidentiality

‘Top secret’ – the provisions keeping

Commonwealth information confidential

There 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.

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.

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

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

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

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

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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Australian government solicitor

ISSUE 1: 2016

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.

AGS wins 2016

Defence Reserve

Employer Support

Awards

On Thursday 28 July 2016 at the Anzac

Hall of the Australian War Memorial, AGS

was announced as winner in the hotly

contested Government category (with

41 nominations from 17 agencies) of the

Defence Reserves Support Council (ACT

and SE NSW) 2016 Employer Support

Awards.

Along with the other employers, AGS

was also recognised with a Certificate of

Recognition as a ‘Supportive employer’. The

citation reads: ‘Presented to the Australian

Government Solicitor in recognition of

your continued support to the Australian

Defence Reserves. Reservists are an essential

part of our Defence Force. They rely on the

support of the community at large and

their employers in particular, to succeed

in their role. This certificate is issued in

recognition of your support for your

Reservist employees.’

‘On behalf of AGS, thank you to

the Council for this Award. AGS is very

pleased and proud to be able to support

our Defence Reservist, Captain Graham

Bannerman,’ said Louise Vardanega, the

acting Australian Government Solicitor, as

she accepted the award. ‘Graham is a great

example of an employee who makes a

valuable contribution, not only as a lawyer

at AGS working in the public interest, but

to the wider community through his work

as a Reservist.’

‘I could not ask for a more committed

and supportive employer,’ Graham said.

Supporting and encouraging employees

who are members of the Australian

Defence Reserves is important to the

Attorney-General’s Department. With

employer support behind them, reservists

make a significant contribution to the

capability of the Australian Defence Force.

In this way, we as employers directly

contribute to the defence and protection

of Australia and further our national

interests.

Last AGS annual

report wins an

ARA Bronze Award

AGS’s final annual report, for the year

2014–15, won a Bronze Award in the 2016

Australasian Reporting Awards (ARA)

presented in Sydney on 8 June. The awards

are open to all organisations that produce

an annual report, whether commercial,

not-for-profit or government.

‘This award is terrific recognition of the

combined skills and talent of our annual

reporting team,’ said Liz Lajos, National

Manager AGS Client Services.

AGS’s annual report was prepared by

Karen Leary with case studies written by

Sam Miley and Diana Icasate, designed

and produced by designers Mandy Orr and

Julie Hamilton, cover artist Tiff Brown, web

publisher James Gergely and coordinated

by David Whitbread, all in AGS Client

Services. The same team will be part

of the broader team working on the

Attorney-General’s Department annual

report this year.

ARA was started by a group of leading

businesspeople in 1950 to improve

the standards of financial reporting

in Australia. It is an independent notfor-profit

organisation supported by

volunteer professionals from the business

community and professional bodies

AGS

channel launched

AGS news

concerned about the quality of financial

and business reporting.

The Bronze Award means our report

provided satisfactory coverage of most of

the demanding ARA criteria and presented

high-quality disclosures in major areas.

As the ARA states: ‘Techniques of

good reporting evolve over time but

the fundamentals remain constant.

Good reporting requires an open willing

attitude, attention to detail and accuracy,

a sensitivity and responsiveness to

stakeholders, a willingness to put in the

effort to communicate effectively and a

commitment to achieving and improving

upon standards.’

On 18 February 2016, AGS

launched its YouTube

channel with a group of

videos featuring lawyers

talking about the hidden

costs of leasing, managing disclosures

under the PID Act, and our pro bono program; one of our pro bono clients talking about

our contribution to their business; and AGS’s Laura John accepting her Graduate of the

Year 2015 award from Sir Bob Geldof (above). Our most recent videos are taken from talks

at our recent Freedom of Information and Privacy Forum.

This is a new channel in our social media presence, which already includes Twitter and

LinkedIn. You can follow us to hear of job opportunities, forthcoming training and events,

new publications and other updates.

38 39


Australian government solicitor ISSUE 1: 2016

>

Leo Hardiman

Deputy General Counsel and

National Group Leader

Office of General Counsel

Leo has more than 25 years of

experience in government legal

work. A specialist in constitutional

law, statutory interpretation,

Commonwealth financial and

taxation law, and the machinery

of government, he has advised on

numerous significant legislative

schemes, including the National

Disability Insurance Scheme. His

particular expertise in tax law

led him to be outposted to the

Australian Taxation Office as

leader of its legal services group

for 2 years.

Office of General Counsel

40

The Office of General Counsel (OGC) is the Commonwealth’s primary

adviser on constitutional law, statutory interpretation, legislative

development, drafting, reform and implementation and represents the

Commonwealth in constitutional litigation.

OGC is led by Leo Hardiman and an eminent team of practitioners including Guy Aitken,

Andrew Buckland, Damian Page, Kathryn Graham, Genevieve Ebbeck and Bridget Gilmour-Walsh,

with former Chief General Counsel Robert Orr PSM QC and Deputy Government Solicitor David

Bennett QC available on a consultancy basis for particular matters. OGC specialises in the

provision of legal advice and assistance to the Commonwealth on constitutional and public law,

statutory interpretation, the development, implementation and administration of legislation

and legal issues spanning the spectrum of the Commonwealth’s activities across all portfolios.

The office also specialises in acting for the Commonwealth in primarily High Court

constitutional litigation and coordinating the conduct of other cases involving constitutional

issues. In consultation with the Solicitor-General, OGC also advises on whether the Attorney-

General should intervene in constitutional litigation matters. As well as key expertise in

constitutional law, statutory interpretation, administrative law, law-making and interpretation

and public international law, OGC’s more than 70 lawyers have specific subject matter expertise

in a wide range of areas, including the Commonwealth financial framework, defence, education,

employment and workplace relations, energy, environmental law, immigration, health,

machinery of government, native title, public governance and accountability and national security.

Michael O’Rourke, Counsel, Canberra

‘ When I worked in an agency, we

often sought advice from different

legal service providers, including

AGS. I particularly enjoyed working

with AGS lawyers. I found them very

easy to work with. Their knowledge

of the law and of the workings of

government was impressive. This

seemed like an excellent place

to work.

Learning about what goes on behind

the scenes in government – for

>Brendan

example, how policy is developed and

Watts, Counsel, Canberra

how legislation is made, and how ‘ I was always interested in

parliamentary and Cabinet processes constitutional law and public law

Emma D’Arcy, Counsel, Canberra

work – has been very interesting. more generally. Working in OGC

‘ AGS offered a great opportunity to

Other OGC lawyers are very easy to allows me to practise in these areas.

work in public law.

work with and have a high degree of

The most satisfying aspect of my

legal expertise, and there’s a lot I still

I’ve had the opportunity to work

work is interacting with clients

have to learn from them.

closely with the policy team and the

and assisting them to achieve the

Our clients are experts in their areas

Office of Parliamentary Counsel on

Commonwealth’s policy objectives.

of law or public policy, and are easy

a legislative reform project that will

and enjoyable to work with.’

One of the best things about OGC is

make a positive difference to people’s

that you’re continually learning.’

lives.

Working with my AGS and

in-house colleagues on challenging

and interesting matters is the most

rewarding part of my job.’

Sam Arnold, Counsel, Canberra

‘ I work with a lot of old and

complicated statutes, so probably

the most satisfaction I get is when

I’m able to work out exactly what a

problematic provision means.

It’s kind of like solving a really difficult

word puzzle.

We can’t always give definitive

answers on ambiguous legislation

so it’s particularly satisfying when

we can deliver a clear solution to an

interpretation problem for a client.’

>

>

41


Australian government solicitor

Matthew Blunn

National Group Leader AGS Dispute

Resolution / currently acting AGS

Chief Operating Officer

Matthew has a diverse background in

litigation, with a strong emphasis on

competition law. He has conducted

a range of significant trade practices

matters, including litigation for the

ACCC (on matters involving cartel

conduct, misleading and deceptive

conduct, and mergers). He has advised

the Commonwealth on competition

issues that affect the delivery of

health services reform and also the

rollout of the NBN. Matthew has also

acted in significant Administrative

Decision (Judicial Review) Act 1977

matters in which the decisions being

reviewed concern the application of

competition law and policy.

AGS Dispute Resolution

AGS Dispute Resolution specialises in resolving and managing

disputes – through alternative dispute resolution (including

mediation, arbitration and conciliation) and litigation. We

act in all types of matters – from small claims and disputes,

to the largest and most sensitive litigation matters the

Commonwealth is involved in.

Our substantial practice, with more than 190 lawyers, undertakes strategic

review and legal analysis; assessment of dispute resolution options; collection

and analysis of facts and evidence; liaison with medical and expert witnesses;

preparation of court documents and case management plans; court appearances;

selection, briefing and management of counsel; and representation of clients in

settlement conferences and mediations.

AGS Dispute Resolution is led by National Group Leader Matthew Blunn, with

the support of expert litigators and advisers, including Tom Howe PSM QC, Simon

Daley PSM, Paul Vermeesch, Tim Begbie, Damien O’Donovan, Andrew Berger,

Glenn Owbridge PSM, Catherine Leslie, Matthew Walsh and Richard Harding.


I worked as an administrative

lawyer in a private firm, but

I always knew that I wanted

to work at AGS. AGS had

all the best and most interesting

administrative law cases and I was

always impressed by the quality of

AGS lawyers.

Appearing as solicitor-advocate

is always a highlight. I think it is the

most challenging part of my role

as an administrative and dispute

resolution lawyer, but it is definitely

the most rewarding. Working on

high-profile cases is also a highlight

because you know you are doing

something which is in the public

interest.

AGS has a truly collegiate culture.

People here are enthusiastic about

bringing the best out of every AGS

lawyer and working with clients in

the public interest.

Lawyers here genuinely love what

they do and the people they

work with, so it’s always an

engaging place to be.

Ashlee Briffa

Senior Lawyer, Melbourne



The nature of dispute

resolution work is very

exciting, and the chance

to work on such fascinating

matters is what makes AGS such a

unique and fantastic place.

My Dispute Resolution

colleagues care very deeply for

their clients and getting the

right outcome for them.

lizzy McCallum

Lawyer, Canberra



ISSUE 1: 2016

My most interesting

matter to date was an

urgent application in the

Fair Work Commission to

suspend proposed industrial action

in Australia’s airports. I had the

opportunity to work with some great

lawyers. Helping them bring the case

together in a very tight timeframe

was a terrific learning experience.

As a junior lawyer at AGS I have

had some great opportunities. Within

a few months of being admitted, I

regularly communicated with clients

and opposing parties, drafted advices

and court documents, and

appeared in the Federal Court.

David Ireland

Lawyer, Perth




My most interesting matter to date has been the Shen Neng 1 litigation.

It has been an incredible experience not just because it involves the

Great Barrier Reef Marine Park but because of the legal issues, which

are complex.

I am very fortunate to work with a very talented team of people in the

Brisbane office who are committed to a standard of excellence, whether it

be in their legal work, client service or service support for AGS.

Jane Lye

Senior Executive Lawyer, Brisbane

42 43


Australian government solicitor

ISSUE 1: 2016

Adrian Snooks

Deputy Chief General Counsel and

National Group Leader

AGS Commercial

Adrian is a highly experienced

adviser on strategic procurement,

intellectual property and technology

projects. He has negotiated the

$1.5 trillion Joint Strike Fighter

memorandum of understanding,

the Australian Government’s

International Communications

Network, the Emergency Alert

telecommunications warning system,

the development of the National

Broadband Network and the $100

million Passport Redevelopment

Project for DFAT. He was chief legal

adviser to the Commonwealth

Heads of Government Meeting in

Perth in 2011 and head of the AGS

team for the G20 meetings in 2014.

An expert in the area of intellectual

property and technology law, Adrian

advises clients on social media

engagement, Creative Commons,

open-source software licensing and

cloud computing. He was the lead

author of the Australian Government

Information Management Office’s

Better Practice Guide on legal issues in

cloud computing.

44

>

AGS Commercial

AGS Commercial’s 60+ lawyers are expert in advising on

taxation, information and communication technology projects,

grants and funding, consumer and competition issues,

intellectual property, media and communications, environment

and resources, State/Territory and intergovernmental

agreements, infrastructure projects, construction, property and

leasing, insurance, banking and finance, procurement, tendering

and contracting, probity and risk management.

We operate as a national practice, with lawyers in all State and Territory capitals,

and work closely with AGS Dispute Resolution and the Office of General Counsel

to deliver an integrated legal service on commercial projects.

Our National Group Leader, Adrian Snooks, is assisted by a highly experienced

team of General Counsel, including Linda Richardson PSM (Chief Counsel

Commercial), Cathy Reid (Deputy Chief Counsel Commercial), Paul Lang RFD,

Tony Beal, Simon Konecny and Andrew Miles (Deputy Counsels Commercial).

‘ ‘

and collaborative.



Kelly Taylor


Senior Lawyer, Melbourne

My most interesting matter to

date was the Commonwealth’s

disposal of the former Point Nepean

quarantine station site to the State of

Victoria. The unique history and use of

this 90-hectare site presented some

interesting legal and policy challenges

to work through in getting ready for

the transfer.

I would describe the

atmosphere at AGS as strong,

supportive, astute, innovative

Lee-Sai Choo Senior Executive Lawyer, Perth

Kathryn Heyroth

Senior Legal Assistant, Canberra



How would I describe my

AGS Commercial colleagues?

Friendly, supportive and

always happy to share a joke.

I was constantly told what a

great place it was to work and

I haven’t been disappointed.

A hallmark of practising at AGS is a focus on quality and client service –

I’ve always felt that.

A favourite memory is working with ATSIC on the emu farm project in

Wiluna (my first trip to the outback). Flying there in a light plane and landing on

an airstrip in the middle of nowhere was quite an experience.

On a more serious note, it was a great opportunity to get to really

understand the client and the transaction – which is so important when

looking to provide a client with the best legal service both on

the particular matter and into the future.

Alex Readford

Senior Lawyer, Canberra


The most surprising thing I’ve

learnt as a lawyer is to listen.

AGS has taught me it’s critical to listen

to, and understand, our clients’ needs.

To me, this is an AGS lawyer’s most

important skill.

My AGS Commercial colleagues are

approachable and focused on practical

solutions. They are keen to personally

know our clients so we can

develop the type of relationship

that allows us to jointly deliver

practical outcomes to their

issues.

45


Australian government solicitor ISSUE 1: 2016

Farewell to

the Australian

Government

Solicitor

Ian Govey AM


Ian took a very

strong interest

in the care and

development of

AGS people.


On 2 May 2016, the Australian

Government Solicitor

Ian Govey AM retired.

On Ian’s last day in the office,

Secretary of the Attorney-General’s

Department (AGD) Chris Moraitis

PSM outlined the immense impact

Ian had during his long and illustrious

career, noting that ‘…with more than

4 decades of dedicated public service,

the numbers speak for themselves.

Ian has served under 9 departmental

secretaries, 16 Attorneys-General and

10 Prime Ministers.’

Ian’s career journey began in 1974.

After graduating from the University

of Adelaide, he had every intention of

pursuing a career in private practice,

until a chance conversation with a

friend saw him shift his attention

to the public sector. He relocated to

Canberra, and took up a graduate

position at AGD.

During the early half of his career,

Ian was head of AGD’s Corporations

Law Simplification Taskforce;

Counsellor (Legal) in the Australian

Embassy in Washington DC; and First

Assistant Secretary, AGD Business

Affairs Division.

He went on to be the inaugural

First Assistant Secretary, Office of

Legal Services Coordination, then

Deputy Secretary, Civil Justice and

Legal Services where he covered

a broad remit – Commonwealth

legal services, Federal courts and

tribunals, alternative dispute

resolution, international law, legal

assistance, human rights, family law,

administrative law, copyright, personal

property securities and native title.

In 2010, he became Chief Executive

Officer of the Australian Government

Solicitor’s office – a role that was

renamed ‘the Australian Government

Solicitor’ last year, and to which he

was appointed.

In 2015, Ian was interviewed for

a profile on AGD’s intranet. He was

asked about his career to date, and

had the following to say about his

time at AGS:

‘Being the CEO of AGS has certainly

been a highlight – running an

organisation that performs such a

central role for the Government. AGS

does such terrific work and has some

interesting challenges which are, of

course, essential for a good job.

Working for government can be

very rewarding. We ultimately work in

the public interest, and are not driven

by the profit motive. I think that at

the end of the day this is what people

find motivating about working for

government. The work is intrinsically

interesting, particularly with the

interaction with government and the

way in which polices are developed and

law reform is undertaken.

There are very few government

policies and programs that are

implemented without some form

of legal advice from AGS. We have

had close involvement, for example,

in water reform, the carbon tax,

gambling reform, energy market

reform, migration law and asylum

seekers and live animal exports. Then

we are involved in the constitutional

challenges, such as the Williams case

on the power of the Commonwealth to

spend money and the plain packaging

of tobacco case. We are also Solicitor

Assisting the Royal Commission into

Institutional Responses to Child Sexual

Abuse.’

Aside from his work for the

Commonwealth, Ian also made a

broader contribution to federal law

and legal administration through his

membership of several law-related

organisations. He continues to be a

member of the International Institute

for the Unification of Private Law, the

Australian Centre for International

Commercial Arbitration and the

Australasian Legal Information

Institute.

His contribution to public

service throughout his career was

aptly recognised by the Award of

Member of the Order of Australia he

received last year. His citation reads:

‘for his significant service to public

administration and to the law, as a

leader in the provision of government

legal services and to professional

organisations’.

Ian took a very strong interest in

the care and development of AGS

people. He was a regular visitor to

AGS’s regional offices, recognising

staff for their contributions to client

care and their service to AGS. He

encouraged investment in the lawyer

development program, to attract and

retain the best graduates and junior

lawyers for the future.

Ian also put great effort and

enthusiasm into building AGS’s

networks with clients and the legal

profession throughout Australia.

He emphasised our role in support

of the Attorney-General and the

Government of the day – that AGS

was not just ‘another legal provider’.

We thank Ian for his many

contributions to AGS, AGD, the

Commonwealth and the broader

community. We wish him all the

best in retirement, and eagerly look

forward to seeing where he chooses

to focus his impressive energy and

intellect in the years to come.

46

47


Australian government solicitor ISSUE 1: 2016

AGS

WORKFORCE

AND MARKET

UPDATE

Our people

AGS employs 646 people; 309 are

located in Canberra and the rest

are based in our offices in State and

Territory capitals across Australia.

A flexible and people-focused work

environment is a key attraction for

AGS staff. We also greatly appreciate

the privileged role we occupy – being

involved in the interesting and

rewarding legal work on offer, while

contributing to the public interest.

Our values

In addition to the APS Code of

Conduct and APS values, AGS adheres

to a set of organisational values which

shape the way we approach our work,

our clients, and our AGS colleagues.

Integrity – honest and impartial

dealings with others, treat all people

with respect

Professionalism – excellence in all

aspects of our work

Commitment to the public good –

assist clients to achieve the best results

for the Australian community and the

Government

Collegiality – work collaboratively as

one national team.

The market

According to the Office of Legal

Services Coordination (OLSC) Legal

Services Expenditure Report 2014–15,

AGS remains a strong and respected

legal services provider, with a reported

38% share of Commonwealth legal

services expenditure (professional

fees) in 2014–15. Our legal expertise

and value for money are recognised

by our clients. We continue to be the

legal service supplier most often relied

upon by Commonwealth Government

agencies.

46%

16%

AGS

Other top 10 firms

Remaining providers

38%

Source: OLSC Legal Services Expenditure

Report 2014–15

How our clients rate us

AGS runs a regular nation-wide

independent survey of close to 1,500

Commonwealth clients. The survey

focuses on key performance attributes

ranging from our legal expertise,

depth of team and understanding

of our clients’ business to the quality

of our relationship management,

responsiveness and ease of doing

business. In this survey we also ask

clients to rate and comment on our

commerciality, value for money and

other aspects of the financial and

administrative management of their

matters.

In 2015, the AGS Client Survey

results showed an overall rating of

7.95 out of 10 for client satisfaction,

reflecting the continuation of an

upward trend seen in recent years. We

also learned that 96% of our clients

are satisfied with AGS’s performance.

Most notable was a 48% increase

in the proportion of our clients

rating AGS’s overall performance as

‘excellent’ (from 29% to 43% of all

respondents).

We rated well on many key

attributes, including legal expertise,

quality of relationship, ease of doing

business with, responsiveness and

understanding of clients’ business.

Our average rating for each of these

attributes was more than 8 out of 10.

Cost management is a critical

aspect of service delivery – not just

in legal services but right across the

spectrum of professional services.

AGS’s performance in this area

consistently rates close to 7 out of 10

in client surveys, and we are striving to

achieve even better results. Listening

and responding to our clients is an

important facet of our approach to

service. We welcome feedback about

how we can support our clients,

including in managing costs.

Did you know?

56%

of our full-time employees

are lawyers, and 44% are

legal support and corporate

staff

69% 60% 48%

of AGS workers are female of our lawyers are female of our senior executive

lawyers are female

20%

of the AGS workforce is

part time, and 91% of our

part-timers are women

15

In 2016

law graduates

commenced the AGS

Graduate Program

48 49


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Australian Government Solicitor

Issue 1: 2016

ISSN 2206-7388 (Print)

ISSN 2206-737X (Online)

www.ags.gov.au

Justice Stephen Gageler

of the High Court on what it is

to a government lawyer

Confidentiality

5 feature articles on different

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Government

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