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Justice Stephen Gageler<br />
of the High Court on what it is<br />
to be a government lawyer<br />
Confidentiality<br />
5 feature articles on different<br />
aspects of confidentiality<br />
Office of General Counsel,<br />
AGS Dispute Resolution and<br />
AGS Commercial profiles<br />
<strong>Government</strong><br />
Australian<br />
<strong>Solicitor</strong>
u<br />
Employment Law Forum 2016<br />
In this issue<br />
u<br />
u<br />
19 October 2016, Hotel Realm, Canberra<br />
AGS has been advising on public sector employment law and workplace<br />
relations matters for many years. We have been involved in numerous<br />
high-profile individual HR matters, and our lawyers have had critical input<br />
into all of the recent employment and workplace relations law reforms.<br />
We have advised agencies on the implementation of those reforms in<br />
Commonwealth employment.<br />
If you would like to be contacted about this forum please contact<br />
michelle.easte@ags.gov.au<br />
Administrative Law Forum 2016<br />
11 November 2016, Hyatt Hotel, Canberra<br />
Administrative law remains central to the functioning of the Australian<br />
<strong>Government</strong>. This forum will bring you up to date with the latest<br />
developments in administrative law and their practical implications<br />
for Commonwealth administrators, decision-makers and lawyers.<br />
If you would like to be contacted about this forum please contact<br />
michelle.easte@ags.gov.au<br />
Intellectual Property Forum 2017<br />
Date TBA Canberra 2017<br />
For those people who are responsible for managing intellectual<br />
property or developing intellectual property policies.<br />
If you would like to be contacted about this forum please contact<br />
michelle.easte@ags.gov.au<br />
Australian <strong>Government</strong> <strong>Solicitor</strong><br />
Issue 1: 2016<br />
© Commonwealth of Australia, represented by<br />
AGS 2016. Apart from any use permitted under<br />
the Copyright Act 1968 or unless otherwise<br />
expressly indicated all other rights are reserved.<br />
Requests for further authorisation should be<br />
sent to webhelp@ags.gov.au<br />
The material in this magazine is provided to AGS<br />
clients for general information only and should<br />
not be relied upon for the purpose of a particular<br />
matter. Please contact AGS before any action<br />
or decision is taken on the basis of any of the<br />
material in this magazine.<br />
ISSN 2206-7388 (Print)<br />
ISSN 2206-737X (Online)<br />
This biannual magazine is published by AGS<br />
Client Services. If you would like to subscribe to<br />
the print version, please email ags@ags.gov.au or<br />
call Tiff Brown on 02 6253 7246.<br />
Editor and art director<br />
David Whitbread<br />
Guest writer<br />
Justice Stephen Gageler<br />
Writers<br />
Sam Miley<br />
Diana Icasate<br />
Designer<br />
Mandy Orr<br />
Illustrator<br />
Tiff Brown<br />
Web publisher<br />
James Gergely<br />
Photographers<br />
Andrew Sikorski<br />
Paul Chapman<br />
Introducing Australian<br />
<strong>Government</strong> <strong>Solicitor</strong><br />
magazine!<br />
Welcome to the first edition<br />
of our new magazine.<br />
Without an annual report to show<br />
you what we do and how we do it,<br />
we thought we’d create this new<br />
biannual publication to highlight<br />
some of our recent cases and tell<br />
you a bit about our practice and<br />
our people.<br />
We are also delighted that<br />
Justice Gageler agreed that we could<br />
publish his inspiring speech from<br />
the launch of our recently released<br />
biography of Dennis Rose AM QC,<br />
the Commonwealth’s first Chief<br />
General Counsel.<br />
Please send us any feedback<br />
and comments or request subjects<br />
you’d like covered in future issues by<br />
emailing ags@ags.gov.au<br />
I do hope you enjoy our first issue.<br />
Louise Vardanega PSM<br />
The Australian <strong>Government</strong> <strong>Solicitor</strong> A/g<br />
4<br />
GUEST WRITER<br />
Justice Stephen Gageler of the<br />
High Court of Australia<br />
What it is to be a government<br />
lawyer<br />
10<br />
CASE STUDY<br />
Norfolk Island governance reform<br />
12<br />
CASE STUDY<br />
Commonwealth v Director, Fair<br />
Work Building Industry Inspectorate<br />
14<br />
CASE STUDY<br />
Department of Agriculture and<br />
Water Resources concessional<br />
loan schemes<br />
15<br />
FEATURE<br />
Confidentiality<br />
Confidentiality and the Public<br />
Interest Disclosure Act 2013 15<br />
Confidentiality and freedom<br />
of information 17<br />
Confidentiality in<br />
Commonwealth contracts 21<br />
Impact of non-disclosure<br />
obligations on pre-trial processes 27<br />
Protecting confidential<br />
information before courts<br />
and tribunals 34<br />
‘Top secret’ – the provisions<br />
keeping Commonwealth<br />
information confidential 36<br />
39<br />
AGS news<br />
40<br />
AGS’s Office of General Counsel<br />
42<br />
AGS Dispute Resolution<br />
44<br />
AGS Commercial<br />
46<br />
Farewell to the Australian<br />
<strong>Government</strong> <strong>Solicitor</strong> Ian Govey AM<br />
www.ags.gov.au<br />
48<br />
AGS workforce and market<br />
2<br />
update<br />
3
Australian government solicitor<br />
ISSUE 1: 2016<br />
What is it to be a lawyer to<br />
government in the true sense?<br />
What it is<br />
to be a<br />
government<br />
lawyer<br />
Justice Stephen Gageler of the High Court of Australia<br />
This article is taken from Justice Gageler’s speech on the<br />
occasion of his launch in April 2016 of Without fear or favour:<br />
The life of Dennis John Rose AM QC by Carmel Meiklejohn,<br />
co-published by the Attorney-General’s Department and AGS.<br />
It is good to be back at the site of<br />
the old Robert Garran Offices, where<br />
I once had the privilege of working<br />
closely with Dennis Rose.<br />
Most of us attending this launch<br />
are now, or have been, government<br />
lawyers. Some of us knew and<br />
worked with Dennis. Those of us<br />
within that category remember<br />
Dennis with esteem and affection.<br />
We remember Dennis the man. We<br />
remember the calm demeanour,<br />
the kindly disposition, the gentle<br />
spirit, the love of music, the love of<br />
bushwalking, the little giggle. This<br />
book will bring back the humanity<br />
of Dennis Rose.<br />
There are some in the room<br />
(and there will be many, I hope, in<br />
years to come) who did not know<br />
Dennis but who will have the<br />
opportunity to read this book and to<br />
be inspired by him. To those within<br />
that category, the great benefit<br />
of the book is that it illustrates,<br />
through the example of one life of<br />
public service, a life very well lived,<br />
just what it is to be a government<br />
lawyer – or, as Dennis liked to say, a<br />
counsel to the Crown.<br />
It reduces to 3 traits which Dennis displayed in spades. Two<br />
are common to any good lawyering and the third is unique to<br />
government lawyering.<br />
1 > The first trait, common to any good lawyering, is intellectual rigour .<br />
Intellectual rigour has at its base honesty and intelligence and<br />
implies consistency.<br />
2><br />
The second trait is creativity : the ability not only to see problems, but to<br />
create solutions.<br />
Combining creativity with intellectual rigour can involve following a path<br />
which is not obvious, which is not direct, but which is true. Between the<br />
problem and the solution, the good lawyer treads a sure path from common<br />
ground to contestable ground, carrying others who need to be convinced.<br />
3><br />
Those are the 2 traits you’ll find in any good lawyer.<br />
The trait unique to government lawyering (or at least most strongly<br />
displayed in government lawyering) is a sense of purpose .<br />
The sense of purpose is not adequately captured in the notion of acting for a<br />
client; it transcends the issues of the moment and the government of the day.<br />
It involves adherence to a concept of a continuing polity, the fabric of which<br />
is held together by enduring principles and values consistently recognised<br />
and acted upon. Some of those enduring principles and values have found<br />
their way into the law reports. But many have not, in part because skilful and<br />
conscientious government lawyers have been astute enough to avoid the<br />
problems that might end up in court.<br />
JUSTICE STEPHEN GAGELER<br />
4<br />
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Australian government solicitor<br />
ISSUE 1: 2016<br />
‘<br />
Upholding the principles and values of<br />
a government lawyer in a time of crisis<br />
‘requires courage and conviction.<br />
Ian Govey AM, author Carmel Meiklejohn and<br />
Justice Gageler at the launch of Without fear<br />
or favour<br />
Without fear or favour<br />
Upholding the principles and values<br />
of a government lawyer in a time of<br />
crisis requires courage and conviction.<br />
These attributes are well-captured in<br />
the title Carmel Meiklejohn chose for<br />
this book, Without fear or favour.<br />
Most of us (certainly those of us<br />
who are getting on in age) can reflect<br />
back over our careers as lawyers to<br />
think of an episode or event that<br />
in some way made us what we are.<br />
I can think of a few in my own life,<br />
most of them bruising, all of them<br />
formative. They consolidated the<br />
person that I had become to that<br />
point, and helped to form the person<br />
that I was to become after it.<br />
For Dennis’s career, the defining<br />
event came when he was relatively<br />
young – 38 years old. The story is<br />
told in this book. Dennis also told<br />
me about it several times, and I wish<br />
I could now remember more of the<br />
detail and recall his exact words. What<br />
I do remember is the climax: Dennis<br />
raising his right fist, bringing it down<br />
on the table and saying words to<br />
the effect of, ‘No, Attorney-General,<br />
that will not be a loan for temporary<br />
purposes. If you go ahead without<br />
Loan Council approval, you will be<br />
committing a criminal offence!’<br />
That moment stuck in the psyche<br />
of Dennis Rose. It epitomised the<br />
man who was to become the most<br />
respected government lawyer of his<br />
generation: striving to get to ‘yes’,<br />
but prepared to say ‘no’ without fear<br />
(although I suspect there was in that<br />
moment an element of trepidation)<br />
and certainly without favour.<br />
Mastery and precision<br />
There is a photograph in the book of<br />
the Attorney-General’s Department in<br />
1964 – almost all male, unsurprisingly.<br />
Sir Garfield Barwick, then Attorney-<br />
General, appears standing in the<br />
front row. Dennis had been in the<br />
Department for just 2 years. The<br />
following year, Dennis left the<br />
Department to spend a couple of<br />
years at the Australian National<br />
University, re-joining the Department<br />
in 1968.<br />
During that interlude at ANU,<br />
Dennis was asked to revise a little<br />
out-of-date textbook called Lewis’<br />
Australian bankruptcy law. It showed<br />
a lot about Dennis that the book he<br />
thoroughly revised, brought through<br />
the 5th edition in 1967, and took<br />
through to the 11th edition in 1999,<br />
was always called Lewis’ Australian<br />
bankruptcy law.<br />
It showed his humility. It showed<br />
his constancy. It showed his mastery<br />
of technical subject matter. It showed<br />
the precision of his thought. And<br />
the fact that the little book (I’m<br />
sure, despite publisher’s pressures)<br />
remained, throughout those<br />
7 editions, a little book showed<br />
his economy of language.<br />
Chief General Counsel<br />
By 1980, Dennis had become head<br />
of the Advisings Division (which<br />
later became the General Counsel<br />
Division). In 1989, in recognition of his<br />
exceptional talent, he was appointed<br />
to the newly created position of<br />
Chief General Counsel. He was Acting<br />
<strong>Solicitor</strong>-General for protracted<br />
periods between 1992 and 1994. He<br />
was made a Commonwealth Queen’s<br />
Counsel, one of the very few, and one<br />
of the first. He was made a member of<br />
the Order of Australia in 1992.<br />
Legal development in Australia<br />
The time in which Dennis held<br />
senior positions within the Attorney-<br />
General’s Department was a time<br />
of great legal development within<br />
Australia. It was also a time of great<br />
change in Australian society.<br />
Many of the legal structures set<br />
in place during that time can be<br />
seen in retrospect to have been of<br />
a quasi-constitutional nature: the<br />
Family Court of Australia; the Federal<br />
Court of Australia; the entire modern<br />
administrative review system (the<br />
Commonwealth Ombudsman; the<br />
Administrative Appeals Tribunal,<br />
the Administrative Decisions<br />
(Judicial Review) Act 1977 (Cth)); selfgovernment<br />
in the Northern Territory<br />
and in the Australian Capital Territory;<br />
abolition of appeals to the Privy<br />
Council; severing of constitutional<br />
ties between Australia and the United<br />
Kingdom (with the negotiation and<br />
enactment of the Australia Acts);<br />
cross-vesting of court jurisdiction<br />
(about which Dennis had a deep<br />
and abiding concern); statutory<br />
recognition and protection of native<br />
title in the Native Title Act 1993 (Cth).<br />
The time saw the expanded use of<br />
heads of Commonwealth legislative<br />
power which had until then lain<br />
6<br />
7
Australian government solicitor<br />
ISSUE 1: 2016<br />
dormant or underutilised. Modern<br />
reliance on the external affairs power<br />
and on the corporations power began<br />
– though there might be some dispute<br />
about this – with the World Heritage<br />
Properties Conservation Act 1983 (Cth).<br />
Modern reliance on the taxation<br />
power, the final nail in the coffin of<br />
Barger’s case (R v Barger (1908) 6 CLR<br />
41; [1908] HCA 43) began with the<br />
Training Guarantee Acts and came<br />
into its own with the Superannuation<br />
Guarantee Acts. These were nationbuilding<br />
pieces of legislation. With<br />
their creation Dennis was intimately<br />
involved.<br />
Two legislative schemes in which<br />
Dennis was involved were not in the<br />
nation-building category but show<br />
his brilliant and creative technical<br />
lawyering at its best. The earlier was<br />
the Commonwealth Places (Application<br />
of Laws) Act 1970 (Cth). You would<br />
think that there would be no other<br />
scheme more technical and difficult<br />
to devise. But such a scheme exists,<br />
in the Child Support (Assessment) Act<br />
1989 (Cth) and its various interlocking<br />
pieces of legislation. Dennis devised<br />
that scheme too. Both schemes<br />
withstood intensive High Court<br />
scrutiny.<br />
Advocacy<br />
The changing times contributed to<br />
an expansion of litigation. This book<br />
tells of Dennis’s involvement in much<br />
of that litigation. It singles out for<br />
special mention his involvement<br />
in the Tasmanian Dams Case<br />
(Commonwealth v Tasmania (1983)<br />
158 CLR 1; [1983] HCA 21) and it tells<br />
wonderfully of his involvement in Cole<br />
v Whitfield (1988) 165 CLR 360; [1988]<br />
HCA 18.<br />
Before Cole v Whitfield, there<br />
had been 140 cases on s 92 of the<br />
Constitution. Dennis personally<br />
undertook a comprehensive review of<br />
each of those cases. Not only did he<br />
contribute to the formulation of the<br />
new doctrine, which was presented<br />
in an extraordinarily coordinated<br />
argument by the Commonwealth and<br />
State <strong>Solicitor</strong>s-General, but he also<br />
worked out exactly how each of the<br />
140 previous cases would have been<br />
decided under that new doctrine were<br />
it to be accepted. I saw that document<br />
once. Not only was it extraordinarily<br />
comprehensive; it was extraordinarily<br />
concise, extending for no more than<br />
10 or 12 pages.<br />
I asked one of my associates to<br />
find cases in which Dennis and I had<br />
appeared in court together. From<br />
memory, I thought that Dennis would<br />
have appeared in about a dozen cases<br />
and I would have been with him 3 or<br />
4 times. Dennis actually appeared as<br />
counsel in 66 cases. Fifty-five of them<br />
were in the High Court: 31 as junior<br />
counsel between 1984 and 1992, and<br />
24 as Queen’s Counsel between 1992<br />
and 1994. I appeared as his junior in<br />
12 of those cases.<br />
Where Rose QC was particularly<br />
effective as an advocate in the High<br />
Court was in creating the 3-page<br />
summary of argument that was<br />
handed up at the beginning of oral<br />
argument and that set out, in logical<br />
and concise propositions, the way<br />
through the difficulties of the case.<br />
He brought to his advocacy the same<br />
concise thinking that he brought<br />
to every other part of his work as a<br />
lawyer.<br />
The most memorable case in which<br />
I appeared with Dennis was not in the<br />
High Court. It was in the Full Court<br />
of the Federal Court, in Brisbane,<br />
relating to the Royal Commission into<br />
Aboriginal Deaths in Custody. It was<br />
1989, in the middle of the Australian<br />
pilots’ strike. We left Canberra in a<br />
light aircraft with 2 seats in the front,<br />
1 seat in the back. I was in the back.<br />
We left at 6 pm on a winter’s night.<br />
We got to Tamworth and refuelled<br />
at about 8 pm. We set out from<br />
Tamworth, through a thunderstorm<br />
in the dead of night, with Dennis in<br />
the front, me in the back, and with<br />
the pilot continuously tapping some<br />
instrument on the dashboard which<br />
obviously wasn’t working. I was<br />
traumatised by the time we arrived,<br />
but arrive we did. Dennis seemed<br />
unfazed. We appeared the next day<br />
and won the case. Mercifully, we were<br />
able to get a commercial flight back.<br />
The gold standard of advisers<br />
Dennis was good as an advocate. But<br />
he was best as an adviser. When it<br />
came to advising, Dennis Rose has<br />
been described as having been the<br />
‘gold standard’. I have always had<br />
some difficulty with that description;<br />
it makes me think of an outdated<br />
approach to international monetary<br />
policy. But I understand exactly what<br />
it was meant to convey. There was<br />
none better.<br />
I recently re-read one of his few<br />
advices that were published. It was<br />
an advice to the Republic Advisory<br />
Committee in 1993. It is available on<br />
the internet and it should be read<br />
because it shows what a written<br />
opinion should be.<br />
Writing an opinion<br />
A Dennis Rose opinion was an opinion. It was not<br />
a declaration. It was not a discussion paper. It gave<br />
a direct answer to a direct question. If the question<br />
asked was in any way obscure, the question was<br />
rephrased to make it sensible and the question<br />
as rephrased would be answered very sensibly.<br />
Reasons would be provided, and nothing but<br />
reasons would be provided.<br />
A Dennis Rose opinion was short, direct, succinct<br />
and decisive. The opinion would acknowledge<br />
uncertainty where uncertainty existed, but would<br />
never prevaricate. Where there was uncertainty as<br />
to the ultimate answer, the uncertainty was due to<br />
the vagary of the subject matter or the inherently<br />
predictive nature of the assessment to be made.<br />
It was never due to lack of precision of thought or<br />
expression on the part of the author.<br />
Coming away from my all-tooshort<br />
association with Dennis, I was<br />
convinced that I could never be able<br />
to think like Dennis Rose, but I was<br />
determined that I would at least try to<br />
write like Dennis Rose. I’m still trying.<br />
Congratulations to AGS and<br />
AGD for commissioning this book.<br />
Congratulations to Carmel for writing<br />
it, for chronicling the history, and for<br />
capturing so well the personality and<br />
the professional competencies of<br />
Dennis Rose. Treat it as launched.<br />
Without fear<br />
or favour:<br />
The life of<br />
Dennis Rose AM QC<br />
by Carmel Meiklejohn<br />
Dennis Rose AM QC was a broadly<br />
experienced government lawyer who<br />
ultimately became Australia’s first<br />
Chief General Counsel. In that role,<br />
he was both confidant and adviser<br />
to Prime Ministers, Cabinets and<br />
Attorneys-General. This account<br />
of his life and its impact is quite<br />
inspirational.<br />
Soft cover $22 (GST inclusive)<br />
To order your copy,<br />
please email ags@ags.gov.au<br />
or phone Tiff Brown<br />
T 02 6253 7246<br />
8 9
Australian government solicitor<br />
ISSUE 1: 2016<br />
Hilary Manson<br />
1 case study<br />
Emma D’Arcy<br />
Alice Kingsland<br />
Wancy Lam<br />
Nithya Ramesh<br />
Emilie Sutton<br />
Norfolk Island<br />
governance reform<br />
AGS advised the Department of Infrastructure and Regional<br />
Development on key aspects of Norfolk Island governance reform.<br />
This reform is significant and legally<br />
complex. It involves implementing<br />
new governance arrangements for<br />
Norfolk Island so that:<br />
• most core Commonwealth laws<br />
apply (such as those relating<br />
to income tax, social security,<br />
immigration, biosecurity, customs<br />
and health)<br />
• New South Wales law generally<br />
applies to Norfolk Island to cover<br />
State-level matters (for example,<br />
laws regulating the provision of<br />
health services)<br />
• there is an elected local council (the<br />
Norfolk Island Regional Council) to<br />
perform certain local-governmenttype<br />
functions, such as the<br />
classification, use and management<br />
of community land.<br />
In the 2014–15 financial year, AGS<br />
assisted with the first elements of the<br />
reform, which included development<br />
of the Norfolk Island Legislation<br />
Amendment Act 2015 and associated<br />
legislation.<br />
In 2016–17, a dedicated AGS team<br />
carried out a range of further work<br />
Photo from Wikipedia Commons<br />
on the project, including assisting the<br />
Department to develop a package<br />
of Ordinances as part of the new<br />
governance framework for Norfolk<br />
Island. These Ordinances gave effect<br />
to the Commonwealth’s policies on<br />
the range of New South Wales laws<br />
to be applied to Norfolk Island from<br />
1 July 2016, and amended certain<br />
laws that were made by the Norfolk<br />
Island legislature and are continued<br />
in existence under the Norfolk Island<br />
Act 1979.<br />
The team also drafted transitional<br />
rules and advised on related matters,<br />
including aspects of the service<br />
delivery agreement entered into by<br />
the Commonwealth and New South<br />
Wales. Under this service delivery<br />
agreement, New South Wales will<br />
provide a range of State-level services<br />
to Norfolk Island. Numerous AGS<br />
lawyers also provided advice to other<br />
relevant Australian <strong>Government</strong><br />
departments on the application of<br />
various Commonwealth laws to<br />
Norfolk Island from 1 July 2016.<br />
AGS continues to assist the<br />
Department with the Norfolk Island<br />
governance reform project. This<br />
year, our Norfolk Island reform team<br />
included Senior General Counsel<br />
Hilary Manson and Counsel Emma<br />
D’Arcy, Alice Kingsland, Wancy Lam,<br />
Nithya Ramesh and Emilie Sutton.<br />
10<br />
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Australian government solicitor<br />
ISSUE 1: 2016<br />
Commonwealth v Director,<br />
Fair Work Building Industry<br />
Inspectorate<br />
In December 2015, the High Court of Australia delivered a landmark<br />
decision reaffirming that parties to civil penalty proceedings are<br />
able to make submissions to a court as to appropriate amounts of<br />
pecuniary penalty for the court to impose in a given case.<br />
The High Court’s decision in<br />
Commonwealth v Director, Fair<br />
Work Building Industry Inspectorate 1<br />
(CFMEU) reaffirmed the<br />
appropriateness and, in the case of<br />
regulators, the desirability of parties<br />
to civil penalty proceedings making<br />
submissions, on an agreed or separate<br />
basis, to a court as to the appropriate<br />
pecuniary penalty amount to be<br />
imposed. This is significant for the way<br />
in which regulators run and resolve<br />
cases, deal with respondents, and<br />
direct their enforcement resources.<br />
1 case study<br />
The High Court’s decision in<br />
CFMEU overturned a decision of the<br />
Full Federal Court in the proceedings<br />
in May 2015, that parties in civil<br />
penalty proceedings could not make<br />
submissions as to an appropriate<br />
penalty amount. The Full Federal Court<br />
based its decision on the principle<br />
in Barbaro v The Queen 2 (Barbaro)<br />
(a criminal proceeding) that the<br />
prosecution was not permitted to<br />
make a submission as to the range<br />
of sentences that may be imposed<br />
on an offender.<br />
However, in CFMEU the High Court<br />
unanimously found that the principle<br />
in Barbaro does not extend to civil<br />
penalty proceedings.<br />
The High Court’s decision reinforces<br />
basic differences between civil and<br />
criminal proceedings and upholds<br />
the approach to agreed penalties<br />
established in NW Frozen Foods v ACCC 3<br />
and Minister for Industry, Tourism and<br />
Resources v Mobil Oil Australia Pty Ltd. 4<br />
AGS acted for the Commonwealth<br />
in the proceedings. Key regulators<br />
involved were the Australian<br />
Competition and Consumer<br />
Commission, the Australian Securities<br />
and Investments Commission, the<br />
Australian Taxation Office, the Office<br />
of the Fair Work Ombudsman and<br />
the Director of the Fair Work Building<br />
Industry Inspectorate (now Fair Work<br />
Building and Construction).<br />
The <strong>Solicitor</strong>-General appeared for<br />
the Commonwealth before the High<br />
Court, assisted by Tim Begbie, AGS<br />
Senior General Counsel, with Ruth<br />
Higgins, Counsel.<br />
AGS lawyers Matthew Blunn,<br />
Katrina Close and Sarida McLeod were<br />
responsible for preparing the matter.<br />
Katrina had this to say about the<br />
experience of working on CFMEU:<br />
‘<br />
The High Court’s<br />
decision reinforces<br />
basic differences<br />
between civil<br />
and criminal<br />
proceedings ...<br />
‘<br />
‘The experience of being before 7 judges of the High Court, with an exceptional<br />
legal team, to consider an interesting point of law with significant consequences<br />
for all our regulatory clients was a rare privilege.’<br />
Sarida said: ‘This matter was perhaps the best introduction to the High Court<br />
imaginable. The opportunity to not only watch some of the best counsel in<br />
Australia argue a complex legal issue in front of a full bench of the High Court, but<br />
also get an insight into how a range of regulators approach their enforcement<br />
functions, is one I’m very grateful to have had.’<br />
1<br />
[2015] HCA 46; (2015) 326 ALR 476.<br />
2<br />
[2014] HCA 2; (2014) 253 CLR 58.<br />
3<br />
(1996) 71 FCR 285.<br />
4<br />
(2004) ATPR 41-993.<br />
Matthew Blunn Katrina Close Sarida McLeod<br />
The High Court’s decision was the<br />
focus of discussion at the AGS Civil<br />
Regulators Forum, held in April 2016.<br />
Tim Begbie and AGS Senior Lawyer<br />
Nathan Sinnathurai hosted a panel<br />
discussion, featuring the ACCC’s<br />
Special Counsel Peter Renehan and<br />
ASIC’s Chief Legal Officer Michael<br />
Kingston, that scrutinised the<br />
common features of civil penalty<br />
regimes; the role of regulators as<br />
partisan, active and specialist litigants;<br />
and ongoing aspects of the courts’<br />
expectations of regulators as litigants.<br />
The proceedings have reverted<br />
to the Full Federal Court for<br />
determination of penalty, with the<br />
hearing taking place in May 2016.<br />
At the time of publication, judgment<br />
is reserved.<br />
AGS published an Express law paper<br />
on this topic in December 2015 – see<br />
the ‘Publications’ section of the AGS<br />
website.<br />
12 13
Australian government solicitor<br />
ISSUE 1: 2016<br />
14<br />
Clare Derix<br />
1 case study<br />
Department of Agriculture<br />
and Water Resources<br />
concessional loan schemes<br />
Photo from Wikipedia Commons<br />
Over the past 3 years, AGS<br />
has helped the Department<br />
of Agriculture and Water<br />
Resources establish the<br />
Farm Finance Concessional<br />
Loan Scheme, the Drought<br />
Concessional Loans Scheme<br />
and the Drought Recovery<br />
Concessional Loans Scheme.<br />
Under these schemes, the<br />
Commonwealth lends money to each<br />
State, and to the Northern Territory.<br />
Those jurisdictions then use the funds<br />
to provide concessional loans to farm<br />
businesses – to help them recover<br />
from, and prepare for, drought.<br />
AGS has advised the Department<br />
on the design and structure of the<br />
schemes, as well as constitutional,<br />
legislative, contracting, commercial<br />
law, compliance, freedom of<br />
information, confidentiality and<br />
risk issues.<br />
We are the Department’s legal<br />
negotiator of the loan arrangements<br />
with each jurisdiction, and have<br />
been responsible for drafting the<br />
underpinning loan documentation<br />
between the Commonwealth<br />
and each State and the Northern<br />
Territory. We also helped negotiate<br />
arrangements with the Bureau of<br />
Meteorology to provide national<br />
maps and a web-based drought<br />
identifier.<br />
The Farm Finance Concessional<br />
Loans Scheme has now closed, but<br />
advice on the Drought Concessional<br />
Loans Scheme and Drought Recovery<br />
Concessional Loans Scheme<br />
continues. Work on the new Dairy<br />
Recovery Concessional Loans scheme<br />
has also commenced. This scheme<br />
is designed to assist dairy farmers<br />
impacted by the decision of Murray<br />
Goulburn and Fonterra in 2015–16 to<br />
reduce milk prices. The Department<br />
implemented the new scheme<br />
on 1 July 2016. AGS is advising on<br />
arrangements with a number of<br />
jurisdictions.<br />
At the outset of the Farm Finance<br />
scheme, the Department had little<br />
experience in undertaking this type<br />
of assistance. AGS’s strategic advice<br />
on the design and structure of the<br />
scheme was integral to the successful<br />
implementation of that scheme<br />
within a short turnaround time.<br />
AGS Senior Executive Lawyer<br />
Clare Derix has played a lead role in<br />
advising on the establishment and<br />
contract management of all the<br />
concessional loans schemes. Clare was<br />
initially outposted to the Department<br />
(from June 2013 to September 2013) to<br />
provide hands-on assistance during<br />
the design and negotiation phases<br />
of the Farm Finance project. During<br />
this period she gained insight into the<br />
Department’s business drivers, as well<br />
as a detailed understanding of the<br />
issues of particular concern to each<br />
jurisdiction.<br />
Since completing her outpost, Clare<br />
and her team in AGS Commercial have<br />
continued advising the Department<br />
on a variety of complex legal issues<br />
affecting the schemes, and on<br />
developing contracting options to<br />
achieve the Department’s objectives.<br />
The priorities and objectives for<br />
each of the schemes have evolved over<br />
time, necessitating a responsive and<br />
flexible approach. Many requests for<br />
advice have required consideration<br />
of a range of challenging issues,<br />
often within short timeframes. The<br />
Department’s feedback to AGS on<br />
the responsiveness and the quality<br />
of strategic legal advice has been<br />
consistently positive. Through our<br />
continuing involvement in these<br />
matters, we have accumulated<br />
significant corporate knowledge<br />
about the schemes, which the<br />
Department increasingly relies upon.<br />
Confidentiality and the Public Interest<br />
Disclosure Act 2013<br />
A public interest disclosure is a disclosure of information, usually by a ‘public<br />
official’ within the meaning of the Public Interest Disclosure Act 2013 (PID Act),<br />
to the public official’s supervisor, or to an appropriate ‘authorised officer’ under<br />
the PID Act, about wrongdoing by another public official.<br />
The PID Act contains a number of provisions that protect the confidentiality<br />
of certain types of information. A breach of some of these provisions can<br />
be a criminal offence. Penalties for breaching these provisions range from<br />
imprisonment for up to 6 months to imprisonment for up to 2 years.<br />
The PID Act also provides for a measure of confidentiality in the processing<br />
of public interest disclosures.<br />
This article discusses the key provisions of the PID Act that deal with<br />
confidentiality.<br />
Richard Harding<br />
Special Counsel Dispute Resolution<br />
T 02 9581 7671<br />
Section 20 of the PID Act makes it an offence<br />
for any person to use or disclose information<br />
that:<br />
• a person obtained in that person’s capacity<br />
as a public official<br />
• is likely to enable another person to be<br />
identified as a person who has made a<br />
public interest disclosure.<br />
Section 20(3) of the PID Act contains a number<br />
of exceptions to this prohibition. They include:<br />
• where the use or disclosure is for the<br />
purposes of the PID Act or another law of<br />
the Commonwealth<br />
Confidentiality<br />
In this issue<br />
Confidentiality and the Public Interest<br />
Disclosure Act 2013 15<br />
Confidentiality and freedom of information 17<br />
Confidentiality in Commonwealth contracts 21<br />
Impact of non-disclosure obligations on<br />
pre-trial processes 27<br />
Protecting confidential information before<br />
courts and tribunals 34<br />
‘Top secret’ – the provisions keeping<br />
Commonwealth information confidential 36<br />
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ISSUE 1: 2016<br />
• where the second person has consented to the use or disclosure<br />
• where the identifying information has previously been lawfully published.<br />
It is worth noting that a threat to disclose the identity of a public interest discloser could<br />
amount to the taking of reprisal action under the PID Act. Also, in certain circumstances,<br />
making such a threat could amount to a criminal offence punishable by up to 2 years<br />
imprisonment.<br />
Under s 21 of the PID Act, a court or tribunal cannot require a person who is or has been a public<br />
official (within the meaning of that term in the PID Act) to:<br />
• disclose to a court or tribunal information that identifies a public interest discloser<br />
• produce to a court or tribunal a document that contains information that identifies a<br />
public interest discloser.<br />
This will apply unless, in either case, it is necessary to do so for the purposes of the PID Act.<br />
Section 23 provides that, if civil or criminal proceedings are instituted against an individual<br />
in a court and the individual makes a claim for immunity under s 10 of the PID Act (this is the<br />
immunity arising from having made a public interest disclosure), then the court must deal<br />
with that claim in separate proceedings.<br />
Confidentiality<br />
Confidentiality and freedom of information<br />
The Freedom of Information Act 1982 (FOI Act) provides a mechanism that allows the<br />
public to seek access to documents held by virtually all Commonwealth agencies.<br />
The FOI Act seeks to enhance representative democracy through improved public<br />
participation in government processes and increased scrutiny, discussion, comment<br />
and review of the <strong>Government</strong>’s activities. 1<br />
Section 44 of the PID Act provides that, when an authorised officer allocates a public interest<br />
disclosure to a principal officer for investigation under the PID Act, the authorised officer must<br />
not give the principal officer the name and contact details of the discloser unless the discloser<br />
has consented to this.<br />
Another aspect of the confidentiality issue is that, under s 57 of the PID Act, apart from a<br />
few exceptions, if a person gives information to a PID Act investigator when the investigator<br />
requests it and when the information is relevant to the PID Act investigation, the person will<br />
not be subject to any criminal or civil liability. So the person giving the information to the<br />
investigator – the witness – would be immune from an action for breach of confidence in<br />
this situation.<br />
The strongest secrecy provision in the PID Act concerns information obtained by persons<br />
acting in an official capacity under the PID Act – for example, supervisors who have received<br />
disclosures, authorised officers and investigators. Section 65 provides that, if a person obtains<br />
information in performing a function or exercising a power under the PID Act, they must not use<br />
or disclose that information except in certain circumstances. The exceptions are quite narrow.<br />
They include:<br />
• where the use or disclosure is for the purposes of the PID Act<br />
• where the use or disclosure is for the purpose of taking action in response to a disclosure<br />
investigation<br />
• where the information is not intelligence information and has previously been lawfully<br />
published.<br />
A breach of s 65 is punishable by up to 2 years imprisonment.<br />
It should also be noted that, subject to some exceptions, s 78 of the PID Act provides an<br />
immunity from criminal or civil proceedings, and from disciplinary action, for a principal<br />
officer, investigator, authorised officer or supervisor, for anything done in good faith in<br />
carrying out their duties under the PID Act.<br />
Justin Davidson<br />
Senior Executive Lawyer, AGS Dispute Resolution<br />
T 02 6253 7240<br />
The starting premise of the FOI Act is that any person is entitled to access any document upon<br />
request. 2 However, that premise is qualified: access is not available to an exempt document or<br />
to a conditionally exempt document if its disclosure would be contrary to the public interest. 3<br />
The exemptions to the general right of access are set out in Part IV of the Act. Some of those<br />
exemptions are designed to protect information that attracts legal obligations of confidence or<br />
otherwise requires protection due to its confidential nature.<br />
Documents containing material obtained in confidence<br />
Section 45 – ‘Documents containing material obtained in confidence’ – is the obvious place to<br />
begin. It provides:<br />
(1) A document is an exempt document if its disclosure under this Act would found an action, by a<br />
person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence.<br />
The orthodox application of s 45 usually involves importing the doctrines of equitable<br />
obligations of confidence. Section 45 is likely to apply where a document:<br />
• contains information that is identifiable with specificity<br />
• was communicated in a mutual understanding of confidence<br />
• has the necessary quality of confidentiality, where its proposed disclosure is not authorised<br />
and its unauthorised disclosure will cause detriment. 4<br />
1 Section 3, heavily paraphrased.<br />
2 Section 11 with s 11A(3).<br />
3 Section 11A(4)–(5).<br />
4 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443. Whether detriment must be separately established<br />
remains contentious, but the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information<br />
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<br />
information relating to his affairs will expose his actions to public discussion and criticism’ (Commonwealth v John Fairfax and Sons Ltd<br />
(1980) 147 CLR 39 per Mason J).<br />
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Australian government solicitor<br />
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An example is ACP Magazines Limited and IP Australia. 5 In this case the applicant sought access<br />
to a statutory declaration by a prospective trademark registrant in support of its application for<br />
registration. In upholding the s 45 exemption claim over some of the content of the declaration,<br />
the Acting Freedom of Information Commissioner found that the content was inherently<br />
confidential because:<br />
• it was known to only a limited group<br />
• on its face it had been communicated in the expectation that it would be kept confidential<br />
• material published by IP Australia held out that this type of material in declarations would<br />
be treated confidentially<br />
• disclosure to the FOI applicant would be unauthorised and, in the context of an ongoing<br />
trademark registration dispute, could cause the prospective registrant some detriment.<br />
While most s 45 cases turn on equitable principles, some have explored whether contractually<br />
based obligations of confidence can ‘found an action’ that triggers s 45. In ‘B’ and Brisbane<br />
North Regional Health Authority 6 the Queensland Information Commissioner was prepared<br />
to hold that they could. However, the Administrative Appeals Tribunal authorities on the<br />
point tend the other way, drawing a distinction between acts founding an action in breach of<br />
contract and acts founding an action in breach of confidence as the rationale for excluding the<br />
former from the test in s 45. 7<br />
Another question is whether a threatened breach of statutory confidentiality provisions gives<br />
rise to a s 45 claim. The Administrative Appeals Tribunal has been more willing to at least<br />
entertain such an argument. 8 In National Australia Bank Ltd and Australian Competition and<br />
Consumer Commission 9 the Freedom of Information Commissioner referenced a statutory<br />
confidentiality regime when finding that witnesses had a reasonably held expectation that<br />
‘protected information’ falling within that regime would be treated confidentially. That was a<br />
finding made within a mainstream analysis of equitable principles, rather than a finding of a<br />
standalone foundation for a s 45 claim based solely on the operation of the secrecy provision<br />
under consideration.<br />
Other exemptions<br />
Section 45 is not the only provision that can potentially exempt obligations of confidence. For<br />
example, trade secrets and confidential commercial information may be exempted under<br />
ss 47 or 47G. This occurred in ‘DN’ and Department of Agriculture. 10 In that case the Freedom of<br />
Information Commissioner exempted contingency plan information for emergency situations<br />
during live animal exports on the grounds that it had inherent commercial value that would<br />
be destroyed or diminished by disclosure.<br />
In a similar way, there is a rich vein of authority for the proposition that legitimately held<br />
expectations of confidentiality on the part of witnesses or complainants in an investigation<br />
are worthy of protection. In FT and Civil Aviation and Safety Authority 11 a s 45 claim was upheld<br />
in precisely this circumstance.<br />
More typically, this argument is articulated under s 47E (operation of agencies) within a claim<br />
that disclosure will discourage complainants and witnesses from coming forward in future<br />
or participating fully for fear that their contributions will not be kept confidential. A recent<br />
example of this is ‘HX’ and Australian Federal Police. 12 In this matter the FOI applicant sought<br />
access to a report by the AFP’s professional standards unit on code of conduct breach<br />
5 [2013] AICmr 20.<br />
6 (1994) 1 QAR 279 at [43]. See also Watt v Forests NSW [2007] NSWADT 197.<br />
7 See, for example, Matthews and Australian Securities and Investments Commission [2010] AATA 649 (Matthews) at [123].<br />
8 Matthews at [124] ff (though finding the argument was not made good on the facts).<br />
9 [2013] AICmr 84 at [15] ff.<br />
10 [2014] AICmr 123.<br />
11 [2015] AICmr 37.<br />
12 [2016] AICmr 1.<br />
allegations. In exempting witness statements and the witness’s identifying information, the<br />
Acting Information Commissioner said (at [18]):<br />
I think that the context of confidentiality of complaints and investigations of this nature, even after<br />
the investigations have been concluded, supports the management or assessment of personnel<br />
functions of the AFP in dealing with alleged misconduct by officers, principally by encouraging<br />
candour.<br />
Where the identity of the source of information is itself confidential, s 37(1)(b) provides<br />
an exemption. While the exemption protects the identity of the informant and not the<br />
information they provide, it can also protect information if that protection is necessary to<br />
preserve the confidentiality of the informant. In some cases, that may be the whole of the<br />
information provided by them. 13<br />
Returning to statutory confidentiality provisions, s 38 picks up and applies some 2 dozen such<br />
regimes (listed in Schedule 3). The general effect of s 38 is that, where disclosure of a document<br />
would ordinarily breach a specified secrecy provision, that document is exempt from disclosure<br />
under the FOI Act.<br />
Information communicated in confidence by or on behalf of a foreign government, an<br />
international organisation or a State or Territory government is explicitly protected under<br />
ss 33(b) and 47B(b) respectively. In one respect this exemption is easier to satisfy than s 45: it<br />
does not require the information to have a necessary quality of confidence. 14<br />
Confidential government deliberations<br />
The exemption provisions above focus primarily on obligations of confidence owed to persons<br />
outside the Commonwealth <strong>Government</strong>. Section 45 explicitly excludes from its protection<br />
actionable confidences owed to ‘an agency, the Commonwealth or Norfolk Island’.<br />
But other exemptions recognise that, where the maintenance of confidentiality in intra-<br />
Commonwealth communications is essential, a good basis for withholding the material<br />
can be made out. For example, s 34 protects material necessary to ensure the continued<br />
confidentiality of Cabinet deliberations.<br />
The notion that, at times, government deliberations must necessarily attract a measure of<br />
confidentiality is articulated most frequently (and contentiously) in connection with s 47C.<br />
That provision conditionally exempts ‘deliberative matter’ – that is, matter ‘in the nature of, or<br />
relating to, opinion, advice or recommendation obtained, prepared or recorded, of consultation<br />
or deliberation that has taken place, in the course of, or for the purposes of, the deliberative<br />
processes involved in the functions of’ agencies, ministers or the <strong>Government</strong>.<br />
As a conditional exemption, it protects any part of a document that would be contrary to the<br />
public interest to disclose. In the context of weighing the public interest in the disclosure of<br />
government deliberations about the tenure of Allan Asher, former Commonwealth Ombudsman,<br />
Forgie DP recently 15 made this observation (at [77]):<br />
I accept the public service needs to be able to give totally frank advice to Ministers. I also accept that<br />
there will be occasions on which its officers need to do so on an understanding that their advice will<br />
be confidential.<br />
However, consistently with equitable notions of confidence, Forgie DP also considered that the<br />
passage of time may diminish the potency of claims of confidentiality over advice given to<br />
ministers (at [78]).<br />
In another recent case, 16 Bennett J (sitting as a presidential member of the Administrative<br />
Appeals Tribunal) considered an application for access to the incoming government brief<br />
presented to the Attorney-General following the 2013 general federal election. In weighing<br />
the public interest in disclosure, her Honour said (at [103]):<br />
13 Petroulias v Commissioner of Taxation [2006] AATA 333.<br />
14 Secretary, Department of Foreign Affairs v Whittaker (2005) 143 FCR 15. Note, however, that the State and Territory exemption is subject to<br />
a public interest test and that, in that way, questions of the inherent confidentiality of the information might become relevant.<br />
15 Secretary, Department of Prime Minister and Cabinet and Wood (Freedom of information) [2015] AATA 945.<br />
16 Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962.<br />
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Australian government solicitor<br />
ISSUE 1: 2016<br />
In circumstances where an IGB necessarily contains incomplete material and analysis and is<br />
prepared for a new Minister in a new <strong>Government</strong>, it is important that those preparing an IGB do<br />
so without concern as to the consequences of doing so … It is important that those preparing the<br />
deliberative content of IGBs continue to understand that it may be not only frankly but also fully<br />
and in the knowledge that it is confidential to the intended recipient/s. It is then up to the Minister<br />
and the Secretary to determine any discretionary release.<br />
Concluding observation<br />
The cases discussed in this article demonstrate that the prospect of dishonouring a reasonably<br />
held expectation of confidentiality will often be a reliable foundation for a claim of exemption<br />
from disclosure under the FOI Act. While s 45 is the obvious starting point, depending on<br />
the circumstances in which the obligation of confidence arises, other exemptions may also<br />
be relevant.<br />
For those administering the FOI Act, a key challenge is obtaining evidence that enables<br />
them to conclude that any expressed expectation of confidence is in fact well founded. A<br />
bare assertion of an expectation of confidence, first articulated at the time the FOI request is<br />
received, will rarely be sufficient. Also, the mere marking of documents as ‘in confidence’ will<br />
not be sufficient. While the marking may indicate that some information in the document has<br />
an inherent quality deserving of exemption, in FOI analysis a mark on a document is not the<br />
end of the inquiry but the beginning.<br />
Confidentiality<br />
Confidentiality in Commonwealth contracts<br />
This article explores the unique issues that the Commonwealth must deal with<br />
when it considers confidential information in contracts. It also provides some<br />
tips to assist Commonwealth entities to better understand the issues at play.<br />
Stuart Hilton<br />
Senior Executive Lawyer<br />
T 03 9242 1431<br />
Lottie Flaherty<br />
Senior Lawyer<br />
T 02 6253 7164<br />
Joseph Cram<br />
Lawyer<br />
T 02 6253 7070<br />
What supplier information could the Commonwealth agree<br />
to keep confidential?<br />
It is often standard commercial practice to include very broad confidentiality provisions in<br />
contracts. These provisions require both parties to treat the contract and the information<br />
provided and generated under it as confidential.<br />
However, Commonwealth entities must comply with a range of Commonwealth<br />
accountability and reporting requirements that affect how the Commonwealth approaches<br />
confidential information in contracts. Therefore, entities need to take a more considered<br />
approach to designating or accepting certain information as confidential.<br />
Public accountability obligations require entities to appropriately limit the inclusion of<br />
confidentiality obligations in agreements. Also, under public accountability obligations<br />
Commonwealth entities may be required to report to the relevant Minister, and to Parliament<br />
and its committees, on particular arrangements or projects or they may need to disclose<br />
information to others under Commonwealth legislation. Therefore, contracts need to reflect<br />
these public accountability and disclosure obligations.<br />
These obligations are peculiar to government contracting and can mean that the<br />
Commonwealth’s position on confidentiality in its contracting arrangements is different from<br />
the approach that commercial parties might take to confidentiality in their private dealings.<br />
Procurement<br />
Under the Commonwealth Procurement Rules (CPRs), submissions in response to a request<br />
from a Commonwealth entity (that is, tender response documents and other procurementrelated<br />
material that a potential supplier submits to the Commonwealth) must be treated as<br />
confidential both before and after the award of a contract (para 7.21). This is usually spelled<br />
out in a clause of the relevant approach-to-market documentation.<br />
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Australian government solicitor<br />
ISSUE 1: 2016<br />
When negotiating confidentiality obligations in a contract with a preferred supplier, the<br />
Commonwealth must consider additional policy requirements that apply to:<br />
• ‘commercial information’ of the supplier that is included in the terms of the contract<br />
• information that the contractor will create or provide as a result of performing the contract.<br />
In accordance with the policy guidance, entities should not agree to treat information<br />
as confidential except to the extent that the entity has determined that the supplier’s<br />
information satisfies the ‘Confidentiality Test’ in accordance with the Department of Finance<br />
(Finance) Confidentiality Throughout the Procurement Cycle policy.<br />
The Confidentiality Test comprises four criteria:<br />
• the information to be protected must be specifically identified<br />
• the information must be commercially ‘sensitive’<br />
• there is a real risk that the disclosure of the information would cause unreasonable<br />
detriment to the owner of the information or another party<br />
• the information was provided under an understanding that it would remain confidential.<br />
Supplier claims of confidentiality must be measured against the four criteria in the<br />
Confidentiality Test. Finance’s guidance on the application of the Confidentiality Test suggests<br />
that only a small amount of supplier information would pass it.<br />
The guidance that Finance provides on its website includes further commentary on the<br />
criteria and a number of case studies that explain why certain types of information may or<br />
may not meet the requirements of the Confidentiality Test. AGS has also provided some tips<br />
on applying the test: see Express Law No 239.<br />
Whatever decisions entities make about confidentiality, entities should ensure that they<br />
document their assessment and reasons for deciding whether to accept or reject a supplier’s<br />
claim for confidentiality.<br />
Grants<br />
The position is less strict for Commonwealth grants under the Commonwealth Grant Rules<br />
and Guidelines (CGRGs) – there is no equivalent of the Confidentiality Test discussed above.<br />
However, the CGRGs do emphasise the importance of entities ensuring that they meet their<br />
transparency and public accountability obligations in administering Commonwealth grants.<br />
Accordingly, it is good practice for entities to avoid agreeing to keep information confidential<br />
where this would be inconsistent with these obligations (see para 5.1 of the CGRGs). For this<br />
reason, Commonwealth entities may wish to adopt an approach to grants similar to their<br />
approach to procurements.<br />
Other types of agreements<br />
Other types of contractual arrangements that are not procurements or grants may need<br />
to impose confidentiality obligations on the Commonwealth. Examples are loans and<br />
employment contracts. As with grant agreements, while some of the specific policy<br />
requirements discussed above may not apply to these other agreements, entities may wish<br />
to adopt a similar approach to confidentiality.<br />
What information should the Commonwealth require<br />
suppliers to keep as confidential?<br />
In many circumstances the Commonwealth itself will want suppliers to keep information<br />
confidential. The CPRs provide that ‘When conducting a procurement and awarding a contract,<br />
relevant entities should take appropriate steps to protect the Commonwealth’s confidential<br />
information’ (para 7.20).<br />
A number of government policy and legal requirements prevent disclosure of certain<br />
information (for example, classified information under the Protective Security Policy and ‘secret’<br />
information under Commonwealth secrecy legislation) or give the public access to other types of<br />
information (for example, the Freedom of Information Act 1982 and the Privacy Act 1988). Most<br />
entities have well-developed processes that apply to decisions about when, what and how such<br />
information will be released. Under a contract with a supplier, entities may provide the supplier<br />
with other types of third-party information that the supplier should be required to treat as<br />
confidential (for example, material licensed from third parties that must be given to a supplier).<br />
Accordingly, the default approach for many Commonwealth entities is often to require<br />
contractors to treat all information that the entity develops or provides as confidential. Many<br />
entities also include provisions that cover secrecy and security requirements concerning<br />
the information that is likely to be disclosed or created under the contract. It is important to<br />
review these standard provisions to ensure they are appropriate for the particular contract.<br />
In addition to a confidentiality clause in the contract, there may be other steps that should<br />
be taken. For example, where a supplier needs to be given personal information or other<br />
information that is particularly sensitive, entities may need to develop bespoke arrangements<br />
for the treatment of confidential information, such as specific deeds of confidentiality or<br />
non-disclosure agreements with supplier and subcontractor personnel.<br />
Can confidentiality obligations arise outside the terms of<br />
the contract?<br />
Personnel undertaking grants administration and procurement activities should be aware of<br />
how easily confidentiality obligations can arise in relation to supplier information, regardless<br />
of what request documentation, grant guidelines or contracts might say.<br />
When tendering for work or performing a contract, suppliers may provide or develop<br />
information that they express to be confidential. Personnel within Commonwealth entities<br />
must be careful not to make representations or give undertakings that they will maintain<br />
the confidentiality of suppliers’ commercial information that are contrary to the relevant<br />
approach to market and/or contract, because this may result in an obligation of confidentiality<br />
arising at law (that is, independently of the contract). Such obligations could be inconsistent<br />
with the Commonwealth’s legislative and policy requirements. 1<br />
What are Commonwealth entities’ reporting obligations?<br />
Commonwealth entities have reporting obligations where contracts contain clauses that require<br />
the Commonwealth to keep information confidential. These obligations are found in a number<br />
of places, including the:<br />
• CPRs<br />
• CGRGs<br />
• Senate Procedural Order of Continuing Effect: Entity Contracts (the Senate Order).<br />
The Senate Order requires entities to report contracts entered into in the past 12 months<br />
with a consideration value of $100,000 or more that contain:<br />
provisions requiring the parties to maintain confidentiality of any of its provisions, or whether there<br />
are any other requirements of confidentiality, and a statement of the reasons for the confidentiality. 2<br />
The similarities in and differences between the sources of reporting obligations are described<br />
in Annex A.<br />
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<br />
understanding that the communication is for a confidential purpose, these communications are treated as confidential.<br />
See http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/contract-issues/confidentiality-procurementcycle/tips.html.<br />
2 Paragraph (2)(c) of the Senate Order.<br />
22 23
Australian government solicitor<br />
ISSUE 1: 2016<br />
What must be reported under the Senate Order?<br />
Resource Management Guide No 403: Meeting the Senate Order on Entity Contracts (RMG-<br />
403) provides guidance to entities on how to meet the reporting requirements under the<br />
Senate Order. RMG-403 contains a reporting template and Minister’s letter to help entities<br />
meet the requirements of the Senate Order.<br />
First, to determine whether a contract needs to be reported, entities need to assess whether the<br />
contract requires the parties to:<br />
• keep information contained in the contract as confidential<br />
• keep information generated during the performance of the contract as confidential. 3<br />
Secondly, entities need to identify whether the obligation of confidentiality relates to specifically<br />
identifiable information. RMG-403 provides:<br />
Most of the contracts listed contain confidentiality provisions of a general nature that are designed<br />
to protect the confidential information of the parties that may be obtained or generated in carrying<br />
out the contract.<br />
As a general rule, the only contracts that must be specifically reported are contracts with<br />
contractual provisions that require the Commonwealth to keep specific information<br />
confidential. For example, the standard confidentiality clause in the Commonwealth<br />
Contracting Suite contains confidentiality obligations for the supplier. These do not need to be<br />
reported unless there is a specific confidentiality obligation on the Commonwealth.<br />
Entities should be aware of situations where the Commonwealth may be required to keep<br />
information confidential even though it has not agreed to this. For example, if a contract<br />
contains a provision that allows a supplier to unilaterally specify information that the<br />
Commonwealth must treat as confidential (which would not meet the Confidentiality Test)<br />
then it may be appropriate to report the contract.<br />
How accurately have Commonwealth entities applied the<br />
Confidentiality Test and their reporting obligations?<br />
Paragraph (5) of the Senate Order requests the Auditor-General to audit a selection of contracts<br />
that entities have reported and provide a report to Parliament indicating whether entities are<br />
using confidentiality provisions inappropriately.<br />
The most recent Performance Audit Report 4 by the Australian National Audit Office (ANAO)<br />
found that, generally speaking, entities were complying with the reporting requirements in a<br />
timely manner.<br />
However, the report suggests that there is room for improvement in how entities apply Finance’s<br />
Confidentiality Test and report confidentiality provisions in contracts. In particular, the ANAO<br />
found that of the 101 contracts audited:<br />
• 22 contained a specific confidentiality provision that did not accord with Finance’s<br />
Confidentiality Test<br />
• 59 were incorrectly reported, either because the confidentiality section stated ‘nil’, ‘not<br />
applicable’ or ‘none specified’ (29 contracts) or because the section did not actually contain a<br />
specific confidentiality provision (that is, it contained only a general confidentiality provision<br />
concerning information that was to be obtained or generated as part of the delivery of the<br />
contract) (30 contracts).<br />
The ANAO also said in its report:<br />
Most government contracts contain general confidentiality provisions and entities publish an<br />
overarching statement with their Senate Order listing advising of the existence of, and reasons for,<br />
the inclusion of such provisions. General confidentiality provisions are not required to be reported<br />
where an overarching statement is supplied. 5<br />
3 See paras 46–47 of RMG-403.<br />
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<br />
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<br />
2014–15 financial year, only one entity had not yet published a listing.<br />
5 Para 3.6, footnotes omitted.<br />
What future changes should Commonwealth entities look for?<br />
AusTender must now be used to report procurement contracts under the<br />
Senate Order<br />
As of the 2015–16 financial year, to meet the requirements of the Senate Order, entities must<br />
use AusTender reporting for procurement contracts. However, given the list of contracts on<br />
AusTender concerns procurements, it is unlikely to be a complete list for the purposes of the<br />
Senate Order, because the Order has a broader application (for example, it covers grants and<br />
other non-procurement agreements). If entities accurately record their procurement contracts<br />
on AusTender and reference this listing on their website, they will meet the Senate Order<br />
obligations for their procurement contracts. 6 However, they will still need to ensure they are<br />
meeting the Order requirements for non-procurement contracts.<br />
Changes to reporting requirements from 1 July 2017<br />
Under para (9A) of the Senate Order, from 1 July 2017 the Order will also apply to Corporate<br />
Commonwealth entities (except trading public non-financial corporations as classified by the<br />
Australian Bureau of Statistics).<br />
Tips for Commonwealth entities<br />
Tip 1: Make sure your request documentation (including draft contracts) reflects the<br />
Commonwealth’s requirements<br />
Approach-to-market documentation and grant guidelines should:<br />
• inform potential participants in the process how the entity will handle their submissions<br />
• inform potential participants how the entity will assess any claim for confidentiality (that is,<br />
in the case of procurements, against the Confidentiality Test described in Finance guidance)<br />
and request that the participant provide details in support of any claim of confidentiality in<br />
their submission so that the claim can be assessed<br />
• inform potential contractors of the proposed confidentiality regime in the draft contract or<br />
grant agreement.<br />
Tip 2: Be aware of how obligations of confidentiality can arise<br />
If a supplier claims that information is confidential (by marking a document as ‘confidential’ or<br />
‘commercial-in-confidence’) and this is inconsistent with the terms of the contract then entity<br />
personnel should:<br />
• object to this marking<br />
• request that the information be removed<br />
• expressly say that they do not regard the information as confidential.<br />
This will help reduce the risk of confidentiality obligations arising outside the terms of the<br />
contract.<br />
Tip 3: Conduct a case-by-case assessment of confidentiality claims, document the reasoning and<br />
update the agreement<br />
Entities should conduct a case-by-case assessment of each contractor claim for confidentiality<br />
– including, in the case of procurements, by applying the Confidentiality Test to each – and<br />
document the decision. Care should be taken to ensure the contract or grant agreement then<br />
accurately reflects the outcome.<br />
Tip 4: Report specific confidentiality provisions<br />
Entities should ensure that they report specific confidentiality obligations under the Senate<br />
Order in accordance with the requirements of the Order. Remember that the Senate Order<br />
applies to more than just procurement contracts.<br />
6 See paras 19–24 of RMG-403.<br />
24 25
Australian government solicitor<br />
ISSUE 1: 2016<br />
Annex A – Confidentiality reporting requirements<br />
Which<br />
Commonwealth<br />
entities does this<br />
apply to?<br />
What is the<br />
monetary<br />
threshold for<br />
reporting?<br />
Senate Order<br />
Until 1 July 2017, applies to<br />
non-corporate Commonwealth<br />
entities within the meaning<br />
of the Public Governance,<br />
Performance and Accountability<br />
Act 2013 (PGPA Act). 7<br />
From 1 July 2017 it will also<br />
apply to most corporate<br />
Commonwealth entities.<br />
The Senate Order applies to<br />
contracts that provide for a<br />
consideration to the value of<br />
$100,000 or more.<br />
Commonwealth Procurement<br />
Rules<br />
Relevant entities, being noncorporate<br />
Commonwealth<br />
entities, and prescribed corporate<br />
Commonwealth entities that<br />
must comply with the CPRs when<br />
performing duties related to<br />
procurement.<br />
The reporting thresholds are:<br />
• $10,000 for non-corporate<br />
Commonwealth entities<br />
• for prescribed corporate<br />
Commonwealth entities:<br />
– $400,000 for procurements<br />
other than construction<br />
services procurements<br />
– $7.5 million for procurements<br />
of construction services.<br />
Commonwealth Grant<br />
Rules and Guidelines<br />
All non-corporate<br />
Commonwealth entities<br />
(entities) subject to the<br />
PGPA Act.<br />
No minimum or<br />
maximum monetary<br />
threshold.<br />
Confidentiality<br />
Impact of non-disclosure obligations on<br />
pre-trial processes<br />
This article considers the impact that non-disclosure obligations can have on<br />
pre-trial processes in civil court proceedings. In particular, we examine<br />
non-disclosure obligations that may apply to:<br />
• information that one party provides to another, including by discovery of documents<br />
• information that a party obtains from prospective witnesses, including for<br />
preparation of witness statements.<br />
What contracts<br />
need to be<br />
reported?<br />
Other reporting<br />
thresholds/<br />
restrictions<br />
Reporting of<br />
confidentiality<br />
clauses<br />
All forms of government<br />
agreements, based on their<br />
legal status, rather than the<br />
name given to the arrangement,<br />
including procurement<br />
contracts, lease arrangements,<br />
sales contracts, certain grants<br />
and funding agreements, and<br />
employment contracts. 8<br />
The Senate Order requires the<br />
list to be limited to each contract<br />
entered into by the entity that has<br />
not been fully performed or that<br />
has been entered into during the<br />
previous 12 months.<br />
These obligations apply to a<br />
procurement contract, being an<br />
arrangement (which includes<br />
a contract, agreement, deed<br />
or understanding) for the<br />
procurement of goods or services<br />
under which relevant money is<br />
payable or may become payable<br />
(including standing offers and<br />
panels).<br />
Required. Required. Required.<br />
These obligations apply<br />
to grants. 9<br />
Matthew Blunn<br />
Senior Executive Lawyer<br />
AGS Dispute Resolution<br />
T 02 6253 7424<br />
Paul Vermeesch<br />
Deputy Chief <strong>Solicitor</strong> Dispute<br />
Resolution<br />
T 02 6253 7428<br />
Non-disclosure obligations<br />
Louise Rafferty<br />
Senior Executive Lawyer<br />
AGS Dispute Resolution<br />
T 02 6253 7005<br />
Christopher Behrens<br />
Senior Executive Lawyer<br />
Acting Co-Team Leader,<br />
AGS Dispute Resolution<br />
T 02 6253 7543<br />
Statute and the general law 1 impose a range of non-disclosure obligations on the<br />
Commonwealth and its officers and employees and on other persons. These obligations can<br />
potentially prevent those people from disclosing information, including in court proceedings.<br />
Timeframe within<br />
which the report<br />
must be made<br />
The Minister is to table a letter<br />
every 6 months, no later than<br />
2 calendar months after the end<br />
of each financial and calendar<br />
year (ie by 31 August and<br />
28–29 February each year)<br />
outlining compliance with the<br />
Senate Order (identifying where<br />
to find each entity’s contract<br />
listing).<br />
Procurement contracts and<br />
amendments to them must be<br />
reported by Commonwealth<br />
entities within 42 days of<br />
entering into or amending<br />
the contract.<br />
An entity must publish on<br />
its website information<br />
on individual grants no<br />
later than 14 days after<br />
the grant agreement<br />
takes effect. 10<br />
7 Section 11 of the PGPA Act provides that there are 2 types of Commonwealth entity: a corporate Commonwealth entity, which is a Commonwealth<br />
entity that is a body corporate; and a non-corporate Commonwealth entity, which is a Commonwealth entity that is not a body corporate.<br />
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/<br />
services by an entity, disposals by an entity and other financial arrangements (non-procurement contracts) are to be included in the internet listing.<br />
RMG-403 also provides that purchases of goods, services, land or buildings, leases of premises, employment contracts that do not involve enterprise<br />
bargaining agreements, and agreements between the Commonwealth and a separate legal entity from the Commonwealth are all likely to constitute<br />
a contract for the purposes of the Senate Order (see para 33).<br />
9 See paras 2.3–2.6 of the CGRGs for what constitutes a grant.<br />
10 See paras 5.3 and 5.4 of the CGRGs. Once operational, entities must report on the whole-of-Australian-<strong>Government</strong> register instead.<br />
Non-disclosure obligations under statute<br />
There are many hundreds of secrecy provisions in Commonwealth statutes. 2 Some, but not all, of<br />
these secrecy provisions themselves make it a criminal offence to contravene the non-disclosure<br />
obligation that the secrecy provision imposes. Contravention of any non-disclosure obligation<br />
imposed by Commonwealth statute may also be a criminal offence under s 70 of the Crimes<br />
Act 1914.<br />
Statutory non-disclosure obligations operate according to the terms of the statute. Below we<br />
consider 3 examples of non-disclosure obligations that apply generally to Commonwealth<br />
information. Many other non-disclosure obligations are specific to particular types of<br />
information relevant to particular agencies.<br />
1 The general law comprises judge-made law, including the common law and equity.<br />
2 In its 2010 report, the Australian Law Reform Commission identified 506 secrecy provisions in Commonwealth legislation: see Secrecy<br />
laws and open government in Australia, ALRC Report No 112.<br />
26 27
Australian government solicitor<br />
ISSUE 1: 2016<br />
Section 70 of the Crimes Act<br />
Section 70 of the Crimes Act is a general offence provision concerning unauthorised disclosures.<br />
Under s 70 it is an offence for a Commonwealth officer to publish or communicate any fact or<br />
document which comes into the officer’s knowledge or possession by virtue of their being a<br />
Commonwealth officer and which it is the officer’s duty not to disclose. It is also an offence for a<br />
former officer to disclose such information where it was their duty to not disclose it when they<br />
ceased to be a Commonwealth officer.<br />
Section 70 itself does not contain a non-disclosure duty. Rather, it criminalises a disclosure that<br />
contravenes an applicable non-disclosure duty. Regulation 2.1 of the Public Service Regulations<br />
1999 is an example of a non-disclosure duty breach of which can be an offence under s 70 of the<br />
Crimes Act. 3<br />
It is not an offence under s 70 if the officer (or former officer) was authorised to make the<br />
disclosure. 4<br />
Regulation 2.1 of the Public Service Regulations<br />
Regulation 2.1 of the Public Service Regulations is a secrecy provision that applies generally to<br />
current public servants in the Australian Public Service (APS). 5<br />
It provides that, subject to specified exceptions, an APS employee must not disclose certain types<br />
of information, including:<br />
• confidential information<br />
• information the disclosure of which would be prejudicial to the Commonwealth on certain<br />
specified grounds. 6<br />
Regulation 2.1 sets out exceptions to those non-disclosure obligations, including where<br />
disclosure is:<br />
• in the course of the APS employee’s duties<br />
• authorised by law.<br />
Privacy Act<br />
The Privacy Act 1988 imposes on Commonwealth agencies some general restrictions on the<br />
disclosure of personal information. The non-disclosure obligations under the Privacy Act are<br />
subject to exceptions, including where disclosure is:<br />
• required or authorised by or under an Australian law 7 or a court or tribunal order 8<br />
• reasonably necessary for the establishment, exercise or defence of a legal or equitable claim. 9<br />
Exceptions to statutory non-disclosure obligations<br />
In each case, careful consideration needs to be given to the terms of the particular secrecy<br />
provision, the information in issue and the circumstances of the proposed disclosure.<br />
Some statutory non-disclosure provisions have limited exceptions. For example, some would<br />
not permit an authorisation that would enable the voluntary disclosure of information for the<br />
purposes of the conduct of a court proceeding.<br />
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<br />
constitutional guarantee of freedom of political communication and was valid.<br />
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<br />
Immigration and Border Protection (Ruling No 3) [2015] VSC 642 the Court left this issue open.<br />
5 See also s 28 of the Public Governance, Performance and Accountability Act 2013 for a general non-disclosure obligation that applies to<br />
Commonwealth officials.<br />
6 Regulation 2.1 of the Public Service Regulations 1999 provides that the prohibition against disclosure of confidential information applies<br />
regardless of whether the disclosure would found an action for breach of confidence under the general law.<br />
7 ‘Australian law’ is defined by s 6 of Privacy Act 1988 to mean:<br />
(a) an Act of the Commonwealth or of a State or Territory; or<br />
(b) regulations, or any other instrument, made under such an Act; or<br />
(c) a Norfolk Island enactment; or<br />
(d) a rule of common law or equity.<br />
8 See cl 6.2(b) of Australian Privacy Principle 6 in Schedule 1 to the Privacy Act 1988.<br />
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.<br />
It is not unusual for secrecy provisions in Commonwealth legislation to permit a disclosure<br />
that is mandated by a legal obligation such as a court order. 10 That is not always the case. For<br />
example, some statutory secrecy provisions make it clear that a court order cannot compel a<br />
person to provide information’.<br />
Non-disclosure obligations under general law<br />
Non-disclosure obligations under the general law include:<br />
• equitable or fiduciary obligations that, if breached, would found an action for breach of<br />
confidence 11<br />
• express or implied contractual obligations of confidentiality. 12<br />
Exceptions to non-disclosure obligations under the<br />
general law<br />
The general principle is that an action for breach of confidence or breach of contract cannot<br />
be made out where the disclosure is legally mandated – for example, by a court order. It is also<br />
now reasonably common for statute to compel (or at least enable) the use of information (even<br />
where that information is confidential) in decision-making and regulatory investigations.<br />
A person who owes a non-disclosure obligation under the general law can be expected to<br />
take appropriate steps to discharge their obligation until any overriding disclosure obligation<br />
comes into operation, unless the person to whom an ongoing confidentiality obligation is<br />
owed relieves them of that obligation.<br />
Disclosure obligations of parties in court proceedings<br />
A party to court proceedings is subject to a range of processes for compulsory disclosure of<br />
information, including discovery. Other compulsory court processes for compelling a party<br />
or other person to provide another party with information include interrogatories, notices to<br />
produce and subpoenas. 13<br />
Some statutes relating to the conduct of civil proceedings impose disclosure obligations on<br />
a party. For example, s 26 of the Civil Procedure Act 2010 (Vic) provides that, subject to some<br />
exceptions, there is an overarching obligation on a party and its legal representatives to<br />
disclose to another party the existence of all documents that are, or have been, in that person’s,<br />
possession, custody or control of which the person is aware and which the person considers, or<br />
ought reasonably consider, are critical to the resolution of the dispute.<br />
In the interests of timely, efficient and cost-effective conduct of litigation, and consistent<br />
with a party’s overarching statutory obligations in that regard, 14 parties sometimes agree to<br />
voluntarily provide information to each other. These arrangements are commonly referred to<br />
as informal discovery. This is in contrast to formal discovery, where a court order mandates the<br />
disclosure of the information.<br />
A party that proposes to provide informal discovery or to otherwise volunteer information<br />
needs to ensure they comply with any applicable non-disclosure obligations under statute or<br />
the general law.<br />
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<br />
of the Crimes Act 1914 if the disclosure were mandated by a binding court order.<br />
11 See Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 as to the elements of an action by the Commonwealth for breach<br />
of confidence for disclosure of government information. In addition to establishing the usual elements of an action for breach<br />
of confidence, the Commonwealth must also establish some detriment to the public interest, such as the disruption of ordinary<br />
government business. See AGS Legal Briefing No 64: Identifying and protecting confidential information (4 July 2002).<br />
12 An employee can have a non-disclosure obligation where they are lawfully and reasonably directed not to disclose the information<br />
in issue. An employee’s implied contractual duty of good faith and fidelity also comprises non-disclosure obligations. See Bennett v<br />
President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 for a discussion of these contractual obligations in the<br />
APS context.<br />
13 Subpoenas are generally only used to compel third parties to produce information. Discovery is generally the appropriate mechanism for<br />
disclosure of information between parties, but subpoenas are used on occasion.<br />
14 See, for example s 37M of the Federal Court of Australia Act 1976.<br />
28 29
Australian government solicitor<br />
ISSUE 1: 2016<br />
A party that is complying with a formal discovery order or other compulsory court process also<br />
needs to ensure they comply with any applicable non-disclosure obligations under statute<br />
or the general law. As noted, usually the terms of statutory non-disclosure obligations allow<br />
parties to disclose information if a court order requires them to do so.<br />
Confidential information and discovery<br />
The Commonwealth is not required to disclose information pursuant to a compulsory court<br />
process such as discovery where the information is privileged on grounds of legal professional<br />
privilege. 15<br />
The Commonwealth may also rely on public interest immunity (PII) to resist disclosure of<br />
information pursuant to a compulsory court process. PII is a common law principle based<br />
on the exercise of judicial discretion to prevent the disclosure of information where that<br />
disclosure would be contrary to the public interest.<br />
PII is never more than a claim until the court has undertaken a balancing exercise on<br />
the respective competing public interests. That balance turns on the importance of the<br />
information to the administration of justice – the very same information may be protected in<br />
one context (for example, where it is unimportant to a minor civil case) and not in another (for<br />
example, where it is critical to proving the innocence of a person charged with serious crimes).<br />
Confidentiality obligations under the general law do not prevent compliance with compulsory<br />
court processes such as discovery orders.<br />
The Default Document Management Protocol attached to Federal Court Practice Note CM6<br />
Electronic technology in litigation reflects a common practice that agreed or court-ordered<br />
management protocols for discovery may:<br />
• include a means for a party to identify a discovered document as being in whole or part<br />
subject to a claim of privilege or a claim of confidentiality<br />
• permit non-disclosure of documents that are subject to a claim of privilege or confidentiality<br />
• permit redactions of parts of documents that are subject to a claim of privilege or<br />
confidentiality.<br />
The Federal Court’s Default Document Management Protocol states that:<br />
• if a party presses for access to a discovered document which is claimed in whole or part to be<br />
privileged or confidential, the Court can rule on that issue<br />
• where the Court determines that a document is privileged or confidential, access to the<br />
document or parts of it is restricted in accordance with any order.<br />
Confidentiality is not a ground for non-disclosure of a relevant document. A court may decline<br />
to require disclosure of confidential information that is of no or marginal relevance to matters<br />
in issue in the proceeding. Where confidential information is relevant, the Court may make<br />
appropriate orders to require some extent of disclosure (for example, to legal representatives)<br />
while protecting, to the extent possible, the confidentiality of the information. 16 A party<br />
asserting confidentiality has an onus to prove that the information is in fact confidential.<br />
Court orders permitting a prospective witness to disclose<br />
information to a party<br />
Courts routinely make orders requiring a party to file and serve its evidence by a specified<br />
date. These orders do not impose any obligations on prospective witnesses.<br />
15 AGS Legal Briefing No 87: Legal professional privilege and the government (15 July 2008).<br />
16 Paragraph 7.82 of the Law Council of Australia’s Federal Court case management handbook (available on the website of the Federal Court<br />
of Australia) states that, although parties may agree to redact confidential material in discovered documents, other parties should be<br />
given access to that information at least via their external legal advisors where the material is confidential but also relevant to facts and<br />
issues in the proceedings.<br />
A court can issue a subpoena requiring a person to attend a hearing to give evidence. A<br />
subpoena does not require the witness to give any information to any party in advance of<br />
the hearing.<br />
A party is free to approach any person as a prospective witness. In the absence of a court<br />
order, a prospective witness is not obliged to give any information to any party. However, if<br />
the prospective witness chooses to confer with a party, they are required to comply with any<br />
applicable non-disclosure obligations. 17<br />
Courts rarely consider making orders about any pre-trial disclosures by a prospective witness.<br />
In practice, communications between a party and a prospective witness are generally a matter<br />
for them alone. 18<br />
To avoid any forensic disadvantage, usually a party will not reveal to another party the<br />
identities of their prospective witnesses until witness statements or affidavits are filed. 19<br />
AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 (AS Ruling<br />
No 3) is an example of an unusual case where a court made orders to facilitate a prospective<br />
witness’s disclosure of information to a party’s legal representatives.<br />
In AS Ruling No 3 the Victorian Supreme Court made orders to enable the plaintiff’s lawyers to<br />
interview potential witnesses for trial without the potential witnesses being at risk of breach<br />
of non-disclosure obligations under the Australian Border Force Act 2015 (the ABF Act). 20 The<br />
Court held that, consistent with the common law and the provisions of the Civil Procedures<br />
Act 2010 (Vic), the Court should do everything appropriate to facilitate a fair trial. The Court<br />
considered that to ensure a fair trial in a civil proceeding it is vital that a party is able to<br />
present its evidence as freely as possible, including by way of the interviewing of prospective<br />
witnesses prior to trial – where the prospective witness is willing to confer. 21<br />
The Court’s orders established a confidential process by which, following consideration of a<br />
confidential solicitor’s affidavit about the prospective evidence, the Court could identify to the<br />
plaintiff’s solicitors a particular witness who was permitted by the Court’s orders to disclose<br />
information to the plaintiff’s solicitors without breach of the ABF Act.<br />
The Court was not prepared to make blanket orders in the abstract that would relieve potential<br />
witnesses of all other non-disclosure obligations that might apply in addition to those under the<br />
ABF Act. The Court was prepared if needed to consider applications for further orders relieving<br />
potential witnesses of additional non-disclosure obligations. 22 While it did not rule on the<br />
issues the Court made the following observations about relieving prospective witnesses of<br />
non-disclosure obligations under the general law, such as equitable and contractual obligations<br />
of confidentiality: 23<br />
• While the Court has power to ensure that a witness at trial is relieved from confidentiality<br />
obligations when giving evidence (absent some statutory provision), the position in regard to<br />
pre-trial disclosure is not entirely clear.<br />
• The High Court in A v Hayden (No 2)(1984) 156 CLR 532, 557 noted that obligations of<br />
confidentiality will not be enforced where their application might involve ‘an interference<br />
with the administration of justice’.<br />
• The Court should not intervene until the nature of the obligation of a particular witness is<br />
identified with some precision. Then the question of the public interest in the administration<br />
of justice and the competing considerations can be examined.<br />
17 See, for example, Deacon v Australian Capital Territory [2001] ACTSC 8.<br />
18 See, for example, Deacon v Australian Capital Territory [2001] ACTSC 8.<br />
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<br />
out in the ruling at [57] that required confidential disclosure to the Court of the identity of a prospective witness but did not require<br />
disclosure of that information to other parties.<br />
20 The orders are set out at [57] of AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642.<br />
21 AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 at [12] and [61].<br />
22 The Court (Forrest J) considered that it was not necessary at that stage to make orders about other non-disclosure obligations: see<br />
[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<br />
took a somewhat different approach to that taken by McDonald J in making orders for a similar purpose in Kamasaee v Commonwealth,<br />
Supreme Court of Victoria, No SCI 2014 6770. Justice McDonald did not give written reasons for making those orders.<br />
23 AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 at [47] - [62].<br />
30 31
Australian government solicitor<br />
ISSUE 1: 2016<br />
• In practical terms, the question of relief from confidentiality obligations of this sort will need<br />
to be approached on a witness-by-witness basis.<br />
• If there is an impasse as to the effect of confidentiality obligations in the pre-trial process, the<br />
court may need to fashion its own processes to deal with the issue. This could include use of<br />
a confidential deposition of a relevant witness as that may reduce the scope for argument<br />
about appropriate processes.<br />
Confidentiality obligations of parties<br />
Courts can also make specific orders to protect the confidentiality of information that is the<br />
subject of discovery or other compulsory court processes. Compliance with court-ordered<br />
confidentiality regimes in discovery is potentially complex and expensive. Parties should give<br />
careful consideration to the need for such a regime and should be very careful to require the<br />
party asserting that a document is confidential to demonstrate that the document is in fact<br />
confidential. 24<br />
However, court proceedings are generally conducted publicly and there are limited<br />
circumstances in which the courts will order suppression or non-publication of evidence<br />
given in proceedings. Confidentiality itself is generally not a basis for courts making orders at<br />
a hearing for the suppression or non-publication of evidence in the proceedings. Generally a<br />
higher test is applied. For example, the provisions in Pt VAA of the Federal Court of Australia Act<br />
1976 on suppression and non-publication orders give the Federal Court power to make those<br />
orders on specified grounds, including that the order is necessary:<br />
• to prevent prejudice to the proper administration of justice<br />
• to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation<br />
to national or international security.<br />
There are examples of courts making suppression or non-publication orders concerning<br />
sensitive commercial information where they are satisfied that the order is in the interests of<br />
the administration of justice. Tests based on the interests of the administration of justice are<br />
not satisfied simply because information is confidential.<br />
Confidentiality orders made for the purposes of discovery may hinder but do not prevent a<br />
party from seeking a variation of the orders to enable some evidential use of the information.<br />
Harman obligation<br />
Where a party or other person involved in a proceeding obtains access to information under<br />
a compulsory court process, they automatically have an obligation not to use or disclose the<br />
information except for the purposes of that proceeding. This obligation is commonly known<br />
as the ‘implied undertaking’, although the High Court has clarified that it is more aptly<br />
described as an ‘obligation of substantive law’ owed by those who gain access to the relevant<br />
information. 25 For that reason, this article adopts the expression ‘the Harman obligation’,<br />
based on the leading UK authority, Harman v Secretary of State for the Home Department<br />
[1983] 1 AC 280.<br />
The Harman obligation is owed to the court and breach of the obligation is potentially a<br />
contempt of the court and subject to serious sanctions. 26 In addition to binding parties, and<br />
their solicitors and barristers, to litigation, the Harman obligation binds to the litigation any<br />
stranger who comes into possession of the information with knowledge of its provenance<br />
in legal proceedings. This is so even if the person is not aware of the actual existence of the<br />
24 See the Law Council of Australia’s Federal Court case management handbook (available on the website of the Federal Court of Australia),<br />
in particular Part G Redaction in Chapter 7 Discovery of documents; Part F Confidentiality in Chapter 14 Competition law; and Chapter 15<br />
Appendix A – Example confidentiality regime. Courts often make orders to establish confidentiality regimes where discovery involves<br />
sensitive commercial information.<br />
25 Hearne v Street (2008) 235 CLR 125 at [102]–[108].<br />
26 Hearne v Street (2008) 235 CLR 125. See also the discussion in AGS Legal Briefing No 75: Implied undertakings in litigation (14 September<br />
2005) but note that it pre-dates Hearne v Street.<br />
obligation (ignorance of the law being no excuse). 27<br />
The Harman obligation does not prevent a party using information obtained from other parties<br />
as evidence in the proceedings in which the obligation arose.<br />
The Harman obligation is subject to any statutory power which allows the information to be<br />
used or disclosed (for example, in an investigation by a regulatory agency with the necessary<br />
statutory power). 28 The obligation also yields to curial processes in other litigation. 29 For<br />
example, a person in possession of information subject to the Harman obligation arising in<br />
one proceeding can be compelled to disclose that information in another proceeding by a<br />
discovery order or a subpoena. 30<br />
The Harman obligation ordinarily subsists until the information is received into evidence 31<br />
or is referred to in ‘open court’ in such a way as to disclose its contents. 32 It is also possible to<br />
seek release from the Harman obligation so as to use the information for purposes extraneous<br />
to the proceeding in which the obligation arose. An application for such a release is ordinarily<br />
made to the court in the proceedings in which the obligation arose.<br />
Parliamentary privilege<br />
The term ‘parliamentary privilege’ refers to the special rights and powers of individual houses of<br />
a parliament and to the various protections given to participants in parliamentary proceedings,<br />
including members of parliament. Australian federal laws on the subject of parliamentary<br />
privilege are set out in the Parliamentary Privileges Act 1987. Section 16(3) provides that:<br />
In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received,<br />
questions asked or statements, submissions or comments made, concerning proceedings in<br />
Parliament, by way of, or for the purpose of:<br />
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of<br />
those proceedings in Parliament;<br />
(b)<br />
(c)<br />
otherwise questioning or establishing the credibility, motive, intention or good faith of any<br />
person; or<br />
drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything<br />
forming part of those proceedings in Parliament.<br />
Parliamentary privilege restricts the use of evidence concerning proceedings in Parliament<br />
in courts and other tribunals. Section 16(2) of the Parliamentary Privileges Act 1987 sets out a<br />
broad definition of proceedings in Parliament.<br />
The way in which the privilege applies can vary according to the type of court order – for<br />
example, in some cases (like a subpoena) it can be enough to disclose the information between<br />
the parties with clear warnings against its use in the proceeding; and in others (like discovery)<br />
the inclusion of the parliamentary information in an affidavit may itself be a prohibited<br />
evidentiary use. 33<br />
27 Hearne v Street (2008) 235 CLR 125 at [109]–[112].<br />
28 ASC v Ampolex Ltd (1995) 38 NSWLR 504.<br />
29 Esso Australia Resources v Plowman (1995) 183 CLR 10 at 33.<br />
30 Boral Resources (Vic) Pty Ltd v CFMEU [2015] VSC 352 at [13]–[21] and cases cited therein.<br />
31 Hearne v Street (2008) 235 CLR 125 at [96].<br />
32 See, for example, r 20.03 of the Federal Court Rules 2011.<br />
33 See the discussion in AGS Legal Briefing No 95: Parliamentary privilege (26 June 2012).<br />
32 33
Australian government solicitor ISSUE 1: 2016<br />
Protecting confidential information before<br />
courts and tribunals<br />
Irene Sekler<br />
Senior Executive Lawyer, AGS Dispute Resolution<br />
T 02 6253 7155<br />
Confidentiality<br />
Information protected from disclosure on the basis that its<br />
release would be prejudicial to the public interest<br />
Courts recognise that there are a number of well-established classes or categories of<br />
information the disclosure of which may be prejudicial to the public interest. These include<br />
certain subsets of information pertaining to:<br />
• the national security and defence of Australia<br />
• entry into treaties and the conduct or carriage of international relations<br />
• the identity of police informers or human sources<br />
• law enforcement, defence and intelligence methodologies, capabilities and operations<br />
• information submitted to or considered by Cabinet<br />
• in some circumstances, information confidentially acquired by agencies to enable them to<br />
perform public functions or duties.<br />
The classes of information for which protection can be sought are not closed. The touchstone<br />
for both new and well-recognised categories is whether there could be harm to the public<br />
interest if the information is disclosed.<br />
• A public interest immunity claim. Public interest immunity is a common law principle which<br />
allows a court or tribunal to exercise its discretion to exclude information from evidence<br />
where disclosure of that information would be contrary to the public interest. Public<br />
interest immunity applies to pre-trial disclosures, including discovery, interrogatories and<br />
subpoenas, as well as to material sought to be adduced into evidence. It is also available for<br />
administrative processes, such as the execution of warrants and coercive powers.<br />
• An application to have evidence excluded under s 130 of the Evidence Act 1995 (Cth) or<br />
similar provisions in other Acts. In proceedings to which the Evidence Act applies, s 130<br />
gives a court power to make a direction that information relating to ‘matters of state’ not<br />
be adduced as evidence. This direction may be made if the public interest in preserving the<br />
confidentiality of the information outweighs the public interest in admitting it into evidence.<br />
Similar sorts of provisions can be found in other laws or rules of court.<br />
• Implementing a protective order regime. The court or tribunal may be able to implement<br />
a protective order regime that allows for limited disclosure of the sensitive information<br />
while protecting the public interest. The kinds of orders that may be sought include orders<br />
concerning non-publication of evidence or other material, orders closing the court or tribunal<br />
while evidence is given or submissions are made, orders concerning the use of pseudonyms<br />
and ciphers, and orders concerning the screening of witnesses. The exact capacity of the<br />
court or tribunal to make the orders and the test for making such orders varies depending<br />
on the jurisdiction and the empowering legislation, but the broad underlying principle is<br />
generally whether the orders are necessary to secure the proper administration of justice.<br />
• Invoking the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).<br />
The Act establishes an important and useful framework for protecting national security<br />
information in court proceedings. National security is defined, in s 8, to mean Australia’s<br />
‘defence, security, international relations or law enforcement interests’. Section 10<br />
defines ‘international relations’ as ‘political, military and economic relations with foreign<br />
governments and international organisations’.<br />
Mechanisms that can be used to protect confidential<br />
information<br />
In the course of litigation, situations may arise where confidential government information<br />
could be introduced into evidence. However, release of that information might be prejudicial<br />
to the public interest. There are a number of mechanisms to prevent the public release of that<br />
type of information before a court or tribunal.<br />
Depending on the court or tribunal and on the information for which protection is sought, the<br />
following mechanisms may be considered. The facts of the situation will determine which is<br />
most appropriate in the circumstances.<br />
34 35
Australian government solicitor ISSUE 1: 2016<br />
Confidentiality<br />
‘Top secret’ – the provisions keeping<br />
Commonwealth information confidential<br />
There are hundreds of secrecy provisions contained in Commonwealth legislation. 1<br />
These provisions typically prohibit people who obtain information in the course of<br />
working for the Commonwealth from disclosing that information, except in<br />
circumstances where an exception or a defence applies. A large number of secrecy<br />
provisions have criminal penalties attached.<br />
not itself create a duty not to disclose information. It only applies where a person otherwise<br />
has a duty not to disclose information. This duty must therefore be found elsewhere, such as<br />
in a specific secrecy provision or reg 2.1 of the PS Regs.<br />
Regulation 2.1 of the PS Regs is another provision of a general nature that applies to all<br />
Australian Public Service (APS) employees. It prohibits an APS employee from disclosing<br />
information they obtained or generated in connection with their employment if:<br />
• it is reasonably foreseeable that the disclosure could be prejudicial to the effective working<br />
of government, including the formulation or implementation of policies or programs<br />
(reg 2.1(3)), or<br />
• the information was, or is to be, communicated in confidence within the <strong>Government</strong>, or was<br />
received in confidence by the <strong>Government</strong> from a person or persons outside the <strong>Government</strong><br />
(reg 2.1(4)).<br />
However, reg 2.1(5) contains a number of exceptions to these prohibitions. For example,<br />
regs 2.1(3) and 2.1(4) do not prevent a disclosure of information by an APS employee if the:<br />
a) information is disclosed in the course of the APS employee’s duties<br />
b) information is disclosed in accordance with an authorisation given by an Agency Head<br />
c) disclosure is otherwise authorised by law, or<br />
d) information is already in the public domain as the result of a lawful disclosure.<br />
Specific secrecy provisions<br />
As noted above, there are a range of specific secrecy provisions that apply to impose<br />
confidentiality requirements on particular people or to particular categories of<br />
Commonwealth information.<br />
Leo Hardiman<br />
National Group Leader<br />
Office of General Counsel<br />
T 02 6253 7074<br />
Tara McNeilly<br />
Senior General Counsel<br />
T 02 6253 7374<br />
Olivia Abbott<br />
A/g Senior General Counsel<br />
T 02 6253 7023<br />
Some specific secrecy provisions prevent the disclosure of any information that a particular<br />
category of people (for example, Australian Federal Police employees) obtain while working<br />
for the Commonwealth. 3<br />
There are secrecy provisions of a general nature (for example, provisions that apply to govern<br />
the disclosure of information by all Commonwealth employees), as well as specific provisions<br />
that apply to particular people or particular categories of information. The types and features of<br />
secrecy provisions are discussed in further detail below.<br />
The obligations imposed by secrecy provisions apply in addition to any privacy obligations<br />
arising under the Privacy Act 1988. The interaction of secrecy provisions and the Privacy Act is<br />
also discussed briefly below.<br />
General secrecy provisions<br />
Two key provisions of a general nature that apply to Commonwealth employees are contained<br />
in s 70 of the Crimes Act 1914 and reg 2.1 of the Public Service Regulations 1999 (the PS Regs). 2<br />
Section 70(1) of the Crimes Act says:<br />
A person who, being a Commonwealth officer, publishes or communicates, except to some person to<br />
whom he or she is authorized to publish or communicate it, any fact or document which comes to<br />
his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and<br />
which it is his or her duty not to disclose, commits an offence.<br />
(Section 70(2) also imposes an equivalent obligation on former Commonwealth officers.)<br />
If a Commonwealth officer has a duty not to disclose information they obtain in the course of<br />
doing their job, s 70 makes it an offence to disclose that information. Importantly, s 70 does<br />
Other provisions protect the confidentiality of particular categories of information. For example,<br />
Div 355 of Sch 1 to the Taxation Administration Act 1953 (TAA 1953) protects the confidentiality<br />
of ‘protected information’, being information that was disclosed or obtained under or for the<br />
purposes of a taxation law, that relates to the affairs of an entity, and that identifies (or is<br />
reasonably capable of being used to identify) the entity (s 355-30). Further, some provisions<br />
protect the confidentiality of ‘commercial information’. For example, s 114(1) of the Food<br />
Standards Australia New Zealand Act 1991 imposes a duty on particular people not to disclose<br />
any ‘confidential commercial information’ in respect of food. 4 Other provisions, commonly<br />
contained in law enforcement legislation, protect the confidentiality of information<br />
relating to an investigation. One example is s 34ZS(1) of the Australian Security Intelligence<br />
Organisation Act 1979, which makes it an offence to disclose information indicating that a<br />
warrant has been issued, relating to the content of a warrant, or relating to the questioning<br />
or detention of a person in connection with a warrant.<br />
Specific secrecy provisions typically contain exceptions or defences that permit relevant<br />
information to be disclosed in particular circumstances. One common exception allows<br />
relevant information to be disclosed in the ‘performance of duties’. This type of exception<br />
ordinarily permits disclosures that are incidental to the carrying out of ‘the duties of an<br />
officer’s employment’ (that is, those functions and actions that are authorised as part of his<br />
or her employment). 5 Although it will necessarily depend on the particular statutory context,<br />
disclosures may be permitted under a ‘performance of duties’ type exception even if they are<br />
not specifically contemplated by the relevant legislation. For example, in some cases an officer<br />
1 In its 2009 report, Secrecy laws and open government in Australia, the Australian Law Reform Commission identified 506 secrecy provisions<br />
contained in 176 Commonwealth laws (see 104).<br />
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<br />
says that an APS employee must ‘maintain appropriate confidentiality about dealings that the employee has with any Minister or<br />
Minister’s member of staff’.<br />
3 See s 60A of the Australian Federal Police Act 1979.<br />
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<br />
information relating to food that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished<br />
if the information were disclosed.<br />
5 See Canadian Pacific Tobacco Ltd v Stapleton (1952) 86 CLR 1 and Herscu v The Queen (1991) 173 CLR 276.<br />
36 37
Australian government solicitor<br />
ISSUE 1: 2016<br />
may be able to respond to a statutory information-gathering notice in the performance of his<br />
or her duties.<br />
There are a range of other defences and exceptions contained in specific secrecy provisions.<br />
Importantly, if information is about an individual, a disclosure of that information may be<br />
prohibited even if the individual has provided their consent to the disclosure. For example,<br />
s 355-35 of the TAA 1953 expressly says that consent is not a defence in relation to a disclosure<br />
of protected information about a taxpayer’s affairs. Other provisions may imply that consent is<br />
not, of itself, sufficient to permit disclosure.<br />
Interaction with the Privacy Act<br />
The Australian Privacy Principles (APPs) contained in Sch 1 to the Privacy Act also contain<br />
rules that apply to the use and disclosure of ‘personal information’ (that is, information about<br />
an identified individual or an individual who is reasonably identifiable).<br />
Under APP 6, if a Commonwealth agency holds personal information about an individual<br />
that was collected for a particular purpose, it must not use or disclose that information for<br />
any other purpose except in limited circumstances. Most relevantly for present purposes, the<br />
information can be used or disclosed for another purpose where the ‘use or disclosure of the<br />
information is required or authorised by or under an Australian law or a court/tribunal order’.<br />
Where a secrecy provision clearly and specifically permits the disclosure of particular<br />
information, that disclosure will generally be ‘authorised by law’ and will be permitted<br />
under APP 6.<br />
AGS wins 2016<br />
Defence Reserve<br />
Employer Support<br />
Awards<br />
On Thursday 28 July 2016 at the Anzac<br />
Hall of the Australian War Memorial, AGS<br />
was announced as winner in the hotly<br />
contested <strong>Government</strong> category (with<br />
41 nominations from 17 agencies) of the<br />
Defence Reserves Support Council (ACT<br />
and SE NSW) 2016 Employer Support<br />
Awards.<br />
Along with the other employers, AGS<br />
was also recognised with a Certificate of<br />
Recognition as a ‘Supportive employer’. The<br />
citation reads: ‘Presented to the Australian<br />
<strong>Government</strong> <strong>Solicitor</strong> in recognition of<br />
your continued support to the Australian<br />
Defence Reserves. Reservists are an essential<br />
part of our Defence Force. They rely on the<br />
support of the community at large and<br />
their employers in particular, to succeed<br />
in their role. This certificate is issued in<br />
recognition of your support for your<br />
Reservist employees.’<br />
‘On behalf of AGS, thank you to<br />
the Council for this Award. AGS is very<br />
pleased and proud to be able to support<br />
our Defence Reservist, Captain Graham<br />
Bannerman,’ said Louise Vardanega, the<br />
acting Australian <strong>Government</strong> <strong>Solicitor</strong>, as<br />
she accepted the award. ‘Graham is a great<br />
example of an employee who makes a<br />
valuable contribution, not only as a lawyer<br />
at AGS working in the public interest, but<br />
to the wider community through his work<br />
as a Reservist.’<br />
‘I could not ask for a more committed<br />
and supportive employer,’ Graham said.<br />
Supporting and encouraging employees<br />
who are members of the Australian<br />
Defence Reserves is important to the<br />
Attorney-General’s Department. With<br />
employer support behind them, reservists<br />
make a significant contribution to the<br />
capability of the Australian Defence Force.<br />
In this way, we as employers directly<br />
contribute to the defence and protection<br />
of Australia and further our national<br />
interests.<br />
Last AGS annual<br />
report wins an<br />
ARA Bronze Award<br />
AGS’s final annual report, for the year<br />
2014–15, won a Bronze Award in the 2016<br />
Australasian Reporting Awards (ARA)<br />
presented in Sydney on 8 June. The awards<br />
are open to all organisations that produce<br />
an annual report, whether commercial,<br />
not-for-profit or government.<br />
‘This award is terrific recognition of the<br />
combined skills and talent of our annual<br />
reporting team,’ said Liz Lajos, National<br />
Manager AGS Client Services.<br />
AGS’s annual report was prepared by<br />
Karen Leary with case studies written by<br />
Sam Miley and Diana Icasate, designed<br />
and produced by designers Mandy Orr and<br />
Julie Hamilton, cover artist Tiff Brown, web<br />
publisher James Gergely and coordinated<br />
by David Whitbread, all in AGS Client<br />
Services. The same team will be part<br />
of the broader team working on the<br />
Attorney-General’s Department annual<br />
report this year.<br />
ARA was started by a group of leading<br />
businesspeople in 1950 to improve<br />
the standards of financial reporting<br />
in Australia. It is an independent notfor-profit<br />
organisation supported by<br />
volunteer professionals from the business<br />
community and professional bodies<br />
AGS<br />
channel launched<br />
AGS news<br />
concerned about the quality of financial<br />
and business reporting.<br />
The Bronze Award means our report<br />
provided satisfactory coverage of most of<br />
the demanding ARA criteria and presented<br />
high-quality disclosures in major areas.<br />
As the ARA states: ‘Techniques of<br />
good reporting evolve over time but<br />
the fundamentals remain constant.<br />
Good reporting requires an open willing<br />
attitude, attention to detail and accuracy,<br />
a sensitivity and responsiveness to<br />
stakeholders, a willingness to put in the<br />
effort to communicate effectively and a<br />
commitment to achieving and improving<br />
upon standards.’<br />
On 18 February 2016, AGS<br />
launched its YouTube<br />
channel with a group of<br />
videos featuring lawyers<br />
talking about the hidden<br />
costs of leasing, managing disclosures<br />
under the PID Act, and our pro bono program; one of our pro bono clients talking about<br />
our contribution to their business; and AGS’s Laura John accepting her Graduate of the<br />
Year 2015 award from Sir Bob Geldof (above). Our most recent videos are taken from talks<br />
at our recent Freedom of Information and Privacy Forum.<br />
This is a new channel in our social media presence, which already includes Twitter and<br />
LinkedIn. You can follow us to hear of job opportunities, forthcoming training and events,<br />
new publications and other updates.<br />
38 39
Australian government solicitor ISSUE 1: 2016<br />
><br />
Leo Hardiman<br />
Deputy General Counsel and<br />
National Group Leader<br />
Office of General Counsel<br />
Leo has more than 25 years of<br />
experience in government legal<br />
work. A specialist in constitutional<br />
law, statutory interpretation,<br />
Commonwealth financial and<br />
taxation law, and the machinery<br />
of government, he has advised on<br />
numerous significant legislative<br />
schemes, including the National<br />
Disability Insurance Scheme. His<br />
particular expertise in tax law<br />
led him to be outposted to the<br />
Australian Taxation Office as<br />
leader of its legal services group<br />
for 2 years.<br />
Office of General Counsel<br />
40<br />
The Office of General Counsel (OGC) is the Commonwealth’s primary<br />
adviser on constitutional law, statutory interpretation, legislative<br />
development, drafting, reform and implementation and represents the<br />
Commonwealth in constitutional litigation.<br />
OGC is led by Leo Hardiman and an eminent team of practitioners including Guy Aitken,<br />
Andrew Buckland, Damian Page, Kathryn Graham, Genevieve Ebbeck and Bridget Gilmour-Walsh,<br />
with former Chief General Counsel Robert Orr PSM QC and Deputy <strong>Government</strong> <strong>Solicitor</strong> David<br />
Bennett QC available on a consultancy basis for particular matters. OGC specialises in the<br />
provision of legal advice and assistance to the Commonwealth on constitutional and public law,<br />
statutory interpretation, the development, implementation and administration of legislation<br />
and legal issues spanning the spectrum of the Commonwealth’s activities across all portfolios.<br />
The office also specialises in acting for the Commonwealth in primarily High Court<br />
constitutional litigation and coordinating the conduct of other cases involving constitutional<br />
issues. In consultation with the <strong>Solicitor</strong>-General, OGC also advises on whether the Attorney-<br />
General should intervene in constitutional litigation matters. As well as key expertise in<br />
constitutional law, statutory interpretation, administrative law, law-making and interpretation<br />
and public international law, OGC’s more than 70 lawyers have specific subject matter expertise<br />
in a wide range of areas, including the Commonwealth financial framework, defence, education,<br />
employment and workplace relations, energy, environmental law, immigration, health,<br />
machinery of government, native title, public governance and accountability and national security.<br />
Michael O’Rourke, Counsel, Canberra<br />
‘ When I worked in an agency, we<br />
often sought advice from different<br />
legal service providers, including<br />
AGS. I particularly enjoyed working<br />
with AGS lawyers. I found them very<br />
easy to work with. Their knowledge<br />
of the law and of the workings of<br />
government was impressive. This<br />
seemed like an excellent place<br />
to work.<br />
Learning about what goes on behind<br />
the scenes in government – for<br />
>Brendan<br />
example, how policy is developed and<br />
Watts, Counsel, Canberra<br />
how legislation is made, and how ‘ I was always interested in<br />
parliamentary and Cabinet processes constitutional law and public law<br />
Emma D’Arcy, Counsel, Canberra<br />
work – has been very interesting. more generally. Working in OGC<br />
‘ AGS offered a great opportunity to<br />
Other OGC lawyers are very easy to allows me to practise in these areas.<br />
work in public law.<br />
work with and have a high degree of<br />
The most satisfying aspect of my<br />
legal expertise, and there’s a lot I still<br />
I’ve had the opportunity to work<br />
work is interacting with clients<br />
have to learn from them.<br />
closely with the policy team and the<br />
and assisting them to achieve the<br />
Our clients are experts in their areas<br />
Office of Parliamentary Counsel on<br />
Commonwealth’s policy objectives.<br />
of law or public policy, and are easy<br />
a legislative reform project that will<br />
and enjoyable to work with.’<br />
One of the best things about OGC is<br />
make a positive difference to people’s<br />
that you’re continually learning.’<br />
lives.<br />
Working with my AGS and<br />
in-house colleagues on challenging<br />
and interesting matters is the most<br />
rewarding part of my job.’<br />
Sam Arnold, Counsel, Canberra<br />
‘ I work with a lot of old and<br />
complicated statutes, so probably<br />
the most satisfaction I get is when<br />
I’m able to work out exactly what a<br />
problematic provision means.<br />
It’s kind of like solving a really difficult<br />
word puzzle.<br />
We can’t always give definitive<br />
answers on ambiguous legislation<br />
so it’s particularly satisfying when<br />
we can deliver a clear solution to an<br />
interpretation problem for a client.’<br />
><br />
><br />
41
Australian government solicitor<br />
Matthew Blunn<br />
National Group Leader AGS Dispute<br />
Resolution / currently acting AGS<br />
Chief Operating Officer<br />
Matthew has a diverse background in<br />
litigation, with a strong emphasis on<br />
competition law. He has conducted<br />
a range of significant trade practices<br />
matters, including litigation for the<br />
ACCC (on matters involving cartel<br />
conduct, misleading and deceptive<br />
conduct, and mergers). He has advised<br />
the Commonwealth on competition<br />
issues that affect the delivery of<br />
health services reform and also the<br />
rollout of the NBN. Matthew has also<br />
acted in significant Administrative<br />
Decision (Judicial Review) Act 1977<br />
matters in which the decisions being<br />
reviewed concern the application of<br />
competition law and policy.<br />
AGS Dispute Resolution<br />
AGS Dispute Resolution specialises in resolving and managing<br />
disputes – through alternative dispute resolution (including<br />
mediation, arbitration and conciliation) and litigation. We<br />
act in all types of matters – from small claims and disputes,<br />
to the largest and most sensitive litigation matters the<br />
Commonwealth is involved in.<br />
Our substantial practice, with more than 190 lawyers, undertakes strategic<br />
review and legal analysis; assessment of dispute resolution options; collection<br />
and analysis of facts and evidence; liaison with medical and expert witnesses;<br />
preparation of court documents and case management plans; court appearances;<br />
selection, briefing and management of counsel; and representation of clients in<br />
settlement conferences and mediations.<br />
AGS Dispute Resolution is led by National Group Leader Matthew Blunn, with<br />
the support of expert litigators and advisers, including Tom Howe PSM QC, Simon<br />
Daley PSM, Paul Vermeesch, Tim Begbie, Damien O’Donovan, Andrew Berger,<br />
Glenn Owbridge PSM, Catherine Leslie, Matthew Walsh and Richard Harding.<br />
‘<br />
I worked as an administrative<br />
lawyer in a private firm, but<br />
I always knew that I wanted<br />
to work at AGS. AGS had<br />
all the best and most interesting<br />
administrative law cases and I was<br />
always impressed by the quality of<br />
AGS lawyers.<br />
Appearing as solicitor-advocate<br />
is always a highlight. I think it is the<br />
most challenging part of my role<br />
as an administrative and dispute<br />
resolution lawyer, but it is definitely<br />
the most rewarding. Working on<br />
high-profile cases is also a highlight<br />
because you know you are doing<br />
something which is in the public<br />
interest.<br />
AGS has a truly collegiate culture.<br />
People here are enthusiastic about<br />
bringing the best out of every AGS<br />
lawyer and working with clients in<br />
the public interest.<br />
Lawyers here genuinely love what<br />
they do and the people they<br />
work with, so it’s always an<br />
engaging place to be.<br />
Ashlee Briffa<br />
Senior Lawyer, Melbourne<br />
‘<br />
‘<br />
The nature of dispute<br />
resolution work is very<br />
exciting, and the chance<br />
to work on such fascinating<br />
matters is what makes AGS such a<br />
unique and fantastic place.<br />
My Dispute Resolution<br />
colleagues care very deeply for<br />
their clients and getting the<br />
right outcome for them.<br />
lizzy McCallum<br />
Lawyer, Canberra<br />
‘<br />
‘<br />
ISSUE 1: 2016<br />
My most interesting<br />
matter to date was an<br />
urgent application in the<br />
Fair Work Commission to<br />
suspend proposed industrial action<br />
in Australia’s airports. I had the<br />
opportunity to work with some great<br />
lawyers. Helping them bring the case<br />
together in a very tight timeframe<br />
was a terrific learning experience.<br />
As a junior lawyer at AGS I have<br />
had some great opportunities. Within<br />
a few months of being admitted, I<br />
regularly communicated with clients<br />
and opposing parties, drafted advices<br />
and court documents, and<br />
appeared in the Federal Court.<br />
David Ireland<br />
Lawyer, Perth<br />
‘<br />
‘<br />
‘<br />
My most interesting matter to date has been the Shen Neng 1 litigation.<br />
It has been an incredible experience not just because it involves the<br />
Great Barrier Reef Marine Park but because of the legal issues, which<br />
are complex.<br />
I am very fortunate to work with a very talented team of people in the<br />
Brisbane office who are committed to a standard of excellence, whether it<br />
be in their legal work, client service or service support for AGS.<br />
Jane Lye<br />
Senior Executive Lawyer, Brisbane<br />
42 43
Australian government solicitor<br />
ISSUE 1: 2016<br />
Adrian Snooks<br />
Deputy Chief General Counsel and<br />
National Group Leader<br />
AGS Commercial<br />
Adrian is a highly experienced<br />
adviser on strategic procurement,<br />
intellectual property and technology<br />
projects. He has negotiated the<br />
$1.5 trillion Joint Strike Fighter<br />
memorandum of understanding,<br />
the Australian <strong>Government</strong>’s<br />
International Communications<br />
Network, the Emergency Alert<br />
telecommunications warning system,<br />
the development of the National<br />
Broadband Network and the $100<br />
million Passport Redevelopment<br />
Project for DFAT. He was chief legal<br />
adviser to the Commonwealth<br />
Heads of <strong>Government</strong> Meeting in<br />
Perth in 2011 and head of the AGS<br />
team for the G20 meetings in 2014.<br />
An expert in the area of intellectual<br />
property and technology law, Adrian<br />
advises clients on social media<br />
engagement, Creative Commons,<br />
open-source software licensing and<br />
cloud computing. He was the lead<br />
author of the Australian <strong>Government</strong><br />
Information Management Office’s<br />
Better Practice Guide on legal issues in<br />
cloud computing.<br />
44<br />
><br />
AGS Commercial<br />
AGS Commercial’s 60+ lawyers are expert in advising on<br />
taxation, information and communication technology projects,<br />
grants and funding, consumer and competition issues,<br />
intellectual property, media and communications, environment<br />
and resources, State/Territory and intergovernmental<br />
agreements, infrastructure projects, construction, property and<br />
leasing, insurance, banking and finance, procurement, tendering<br />
and contracting, probity and risk management.<br />
We operate as a national practice, with lawyers in all State and Territory capitals,<br />
and work closely with AGS Dispute Resolution and the Office of General Counsel<br />
to deliver an integrated legal service on commercial projects.<br />
Our National Group Leader, Adrian Snooks, is assisted by a highly experienced<br />
team of General Counsel, including Linda Richardson PSM (Chief Counsel<br />
Commercial), Cathy Reid (Deputy Chief Counsel Commercial), Paul Lang RFD,<br />
Tony Beal, Simon Konecny and Andrew Miles (Deputy Counsels Commercial).<br />
‘ ‘<br />
and collaborative.<br />
‘<br />
‘<br />
Kelly Taylor<br />
‘<br />
Senior Lawyer, Melbourne<br />
My most interesting matter to<br />
date was the Commonwealth’s<br />
disposal of the former Point Nepean<br />
quarantine station site to the State of<br />
Victoria. The unique history and use of<br />
this 90-hectare site presented some<br />
interesting legal and policy challenges<br />
to work through in getting ready for<br />
the transfer.<br />
I would describe the<br />
atmosphere at AGS as strong,<br />
supportive, astute, innovative<br />
Lee-Sai Choo Senior Executive Lawyer, Perth<br />
Kathryn Heyroth<br />
Senior Legal Assistant, Canberra<br />
‘<br />
‘<br />
How would I describe my<br />
AGS Commercial colleagues?<br />
Friendly, supportive and<br />
always happy to share a joke.<br />
I was constantly told what a<br />
great place it was to work and<br />
I haven’t been disappointed.<br />
A hallmark of practising at AGS is a focus on quality and client service –<br />
I’ve always felt that.<br />
A favourite memory is working with ATSIC on the emu farm project in<br />
Wiluna (my first trip to the outback). Flying there in a light plane and landing on<br />
an airstrip in the middle of nowhere was quite an experience.<br />
On a more serious note, it was a great opportunity to get to really<br />
understand the client and the transaction – which is so important when<br />
looking to provide a client with the best legal service both on<br />
the particular matter and into the future.<br />
Alex Readford<br />
Senior Lawyer, Canberra<br />
‘<br />
The most surprising thing I’ve<br />
learnt as a lawyer is to listen.<br />
AGS has taught me it’s critical to listen<br />
to, and understand, our clients’ needs.<br />
To me, this is an AGS lawyer’s most<br />
important skill.<br />
My AGS Commercial colleagues are<br />
approachable and focused on practical<br />
solutions. They are keen to personally<br />
know our clients so we can<br />
develop the type of relationship<br />
that allows us to jointly deliver<br />
practical outcomes to their<br />
issues.<br />
45
Australian government solicitor ISSUE 1: 2016<br />
Farewell to<br />
the Australian<br />
<strong>Government</strong><br />
<strong>Solicitor</strong><br />
Ian Govey AM<br />
‘<br />
Ian took a very<br />
strong interest<br />
in the care and<br />
development of<br />
AGS people.<br />
‘<br />
On 2 May 2016, the Australian<br />
<strong>Government</strong> <strong>Solicitor</strong><br />
Ian Govey AM retired.<br />
On Ian’s last day in the office,<br />
Secretary of the Attorney-General’s<br />
Department (AGD) Chris Moraitis<br />
PSM outlined the immense impact<br />
Ian had during his long and illustrious<br />
career, noting that ‘…with more than<br />
4 decades of dedicated public service,<br />
the numbers speak for themselves.<br />
Ian has served under 9 departmental<br />
secretaries, 16 Attorneys-General and<br />
10 Prime Ministers.’<br />
Ian’s career journey began in 1974.<br />
After graduating from the University<br />
of Adelaide, he had every intention of<br />
pursuing a career in private practice,<br />
until a chance conversation with a<br />
friend saw him shift his attention<br />
to the public sector. He relocated to<br />
Canberra, and took up a graduate<br />
position at AGD.<br />
During the early half of his career,<br />
Ian was head of AGD’s Corporations<br />
Law Simplification Taskforce;<br />
Counsellor (Legal) in the Australian<br />
Embassy in Washington DC; and First<br />
Assistant Secretary, AGD Business<br />
Affairs Division.<br />
He went on to be the inaugural<br />
First Assistant Secretary, Office of<br />
Legal Services Coordination, then<br />
Deputy Secretary, Civil Justice and<br />
Legal Services where he covered<br />
a broad remit – Commonwealth<br />
legal services, Federal courts and<br />
tribunals, alternative dispute<br />
resolution, international law, legal<br />
assistance, human rights, family law,<br />
administrative law, copyright, personal<br />
property securities and native title.<br />
In 2010, he became Chief Executive<br />
Officer of the Australian <strong>Government</strong><br />
<strong>Solicitor</strong>’s office – a role that was<br />
renamed ‘the Australian <strong>Government</strong><br />
<strong>Solicitor</strong>’ last year, and to which he<br />
was appointed.<br />
In 2015, Ian was interviewed for<br />
a profile on AGD’s intranet. He was<br />
asked about his career to date, and<br />
had the following to say about his<br />
time at AGS:<br />
‘Being the CEO of AGS has certainly<br />
been a highlight – running an<br />
organisation that performs such a<br />
central role for the <strong>Government</strong>. AGS<br />
does such terrific work and has some<br />
interesting challenges which are, of<br />
course, essential for a good job.<br />
Working for government can be<br />
very rewarding. We ultimately work in<br />
the public interest, and are not driven<br />
by the profit motive. I think that at<br />
the end of the day this is what people<br />
find motivating about working for<br />
government. The work is intrinsically<br />
interesting, particularly with the<br />
interaction with government and the<br />
way in which polices are developed and<br />
law reform is undertaken.<br />
There are very few government<br />
policies and programs that are<br />
implemented without some form<br />
of legal advice from AGS. We have<br />
had close involvement, for example,<br />
in water reform, the carbon tax,<br />
gambling reform, energy market<br />
reform, migration law and asylum<br />
seekers and live animal exports. Then<br />
we are involved in the constitutional<br />
challenges, such as the Williams case<br />
on the power of the Commonwealth to<br />
spend money and the plain packaging<br />
of tobacco case. We are also <strong>Solicitor</strong><br />
Assisting the Royal Commission into<br />
Institutional Responses to Child Sexual<br />
Abuse.’<br />
Aside from his work for the<br />
Commonwealth, Ian also made a<br />
broader contribution to federal law<br />
and legal administration through his<br />
membership of several law-related<br />
organisations. He continues to be a<br />
member of the International Institute<br />
for the Unification of Private Law, the<br />
Australian Centre for International<br />
Commercial Arbitration and the<br />
Australasian Legal Information<br />
Institute.<br />
His contribution to public<br />
service throughout his career was<br />
aptly recognised by the Award of<br />
Member of the Order of Australia he<br />
received last year. His citation reads:<br />
‘for his significant service to public<br />
administration and to the law, as a<br />
leader in the provision of government<br />
legal services and to professional<br />
organisations’.<br />
Ian took a very strong interest in<br />
the care and development of AGS<br />
people. He was a regular visitor to<br />
AGS’s regional offices, recognising<br />
staff for their contributions to client<br />
care and their service to AGS. He<br />
encouraged investment in the lawyer<br />
development program, to attract and<br />
retain the best graduates and junior<br />
lawyers for the future.<br />
Ian also put great effort and<br />
enthusiasm into building AGS’s<br />
networks with clients and the legal<br />
profession throughout Australia.<br />
He emphasised our role in support<br />
of the Attorney-General and the<br />
<strong>Government</strong> of the day – that AGS<br />
was not just ‘another legal provider’.<br />
We thank Ian for his many<br />
contributions to AGS, AGD, the<br />
Commonwealth and the broader<br />
community. We wish him all the<br />
best in retirement, and eagerly look<br />
forward to seeing where he chooses<br />
to focus his impressive energy and<br />
intellect in the years to come.<br />
46<br />
47
Australian government solicitor ISSUE 1: 2016<br />
AGS<br />
WORKFORCE<br />
AND MARKET<br />
UPDATE<br />
Our people<br />
AGS employs 646 people; 309 are<br />
located in Canberra and the rest<br />
are based in our offices in State and<br />
Territory capitals across Australia.<br />
A flexible and people-focused work<br />
environment is a key attraction for<br />
AGS staff. We also greatly appreciate<br />
the privileged role we occupy – being<br />
involved in the interesting and<br />
rewarding legal work on offer, while<br />
contributing to the public interest.<br />
Our values<br />
In addition to the APS Code of<br />
Conduct and APS values, AGS adheres<br />
to a set of organisational values which<br />
shape the way we approach our work,<br />
our clients, and our AGS colleagues.<br />
Integrity – honest and impartial<br />
dealings with others, treat all people<br />
with respect<br />
Professionalism – excellence in all<br />
aspects of our work<br />
Commitment to the public good –<br />
assist clients to achieve the best results<br />
for the Australian community and the<br />
<strong>Government</strong><br />
Collegiality – work collaboratively as<br />
one national team.<br />
The market<br />
According to the Office of Legal<br />
Services Coordination (OLSC) Legal<br />
Services Expenditure Report 2014–15,<br />
AGS remains a strong and respected<br />
legal services provider, with a reported<br />
38% share of Commonwealth legal<br />
services expenditure (professional<br />
fees) in 2014–15. Our legal expertise<br />
and value for money are recognised<br />
by our clients. We continue to be the<br />
legal service supplier most often relied<br />
upon by Commonwealth <strong>Government</strong><br />
agencies.<br />
46%<br />
16%<br />
AGS<br />
Other top 10 firms<br />
Remaining providers<br />
38%<br />
Source: OLSC Legal Services Expenditure<br />
Report 2014–15<br />
How our clients rate us<br />
AGS runs a regular nation-wide<br />
independent survey of close to 1,500<br />
Commonwealth clients. The survey<br />
focuses on key performance attributes<br />
ranging from our legal expertise,<br />
depth of team and understanding<br />
of our clients’ business to the quality<br />
of our relationship management,<br />
responsiveness and ease of doing<br />
business. In this survey we also ask<br />
clients to rate and comment on our<br />
commerciality, value for money and<br />
other aspects of the financial and<br />
administrative management of their<br />
matters.<br />
In 2015, the AGS Client Survey<br />
results showed an overall rating of<br />
7.95 out of 10 for client satisfaction,<br />
reflecting the continuation of an<br />
upward trend seen in recent years. We<br />
also learned that 96% of our clients<br />
are satisfied with AGS’s performance.<br />
Most notable was a 48% increase<br />
in the proportion of our clients<br />
rating AGS’s overall performance as<br />
‘excellent’ (from 29% to 43% of all<br />
respondents).<br />
We rated well on many key<br />
attributes, including legal expertise,<br />
quality of relationship, ease of doing<br />
business with, responsiveness and<br />
understanding of clients’ business.<br />
Our average rating for each of these<br />
attributes was more than 8 out of 10.<br />
Cost management is a critical<br />
aspect of service delivery – not just<br />
in legal services but right across the<br />
spectrum of professional services.<br />
AGS’s performance in this area<br />
consistently rates close to 7 out of 10<br />
in client surveys, and we are striving to<br />
achieve even better results. Listening<br />
and responding to our clients is an<br />
important facet of our approach to<br />
service. We welcome feedback about<br />
how we can support our clients,<br />
including in managing costs.<br />
Did you know?<br />
56%<br />
of our full-time employees<br />
are lawyers, and 44% are<br />
legal support and corporate<br />
staff<br />
69% 60% 48%<br />
of AGS workers are female of our lawyers are female of our senior executive<br />
lawyers are female<br />
20%<br />
of the AGS workforce is<br />
part time, and 91% of our<br />
part-timers are women<br />
15<br />
In 2016<br />
law graduates<br />
commenced the AGS<br />
Graduate Program<br />
48 49
Australian <strong>Government</strong> <strong>Solicitor</strong><br />
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Email ags@ags.gov.au Mail Locked Bag 35, Kingston ACT 2604<br />
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Return this form by email or mail to:<br />
Email ags@ags.gov.au Mail Locked Bag 35, Kingston ACT 2604<br />
www.ags.gov.au<br />
ABN 69 405 937 639
Australian <strong>Government</strong> <strong>Solicitor</strong><br />
Issue 1: 2016<br />
ISSN 2206-7388 (Print)<br />
ISSN 2206-737X (Online)<br />
www.ags.gov.au<br />
Justice Stephen Gageler<br />
of the High Court on what it is<br />
to a government lawyer<br />
Confidentiality<br />
5 feature articles on different<br />
aspects of confidentiality<br />
Office of General Counsel,<br />
AGS Dispute Resolution and<br />
AGS Commercial profiles<br />
<strong>Government</strong><br />
Australian<br />
<strong>Solicitor</strong><br />
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