Government Solicitor

Justice Stephen Gageler 

of the High Court on what it is 

to be a government lawyer 

Confidentiality 

5 feature articles on different 

aspects of confidentiality 

Office of General Counsel, 

AGS Dispute Resolution and 

AGS Commercial profiles 

Government 

Australian 

Solicitor

u 

Employment Law Forum 2016 

In this issue 

u 

u 

19 October 2016, Hotel Realm, Canberra 

AGS has been advising on public sector employment law and workplace 

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

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

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

We have advised agencies on the implementation of those reforms in 

Commonwealth employment. 

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

michelle.easte@ags.gov.au 

Administrative Law Forum 2016 

11 November 2016, Hyatt Hotel, Canberra 

Administrative law remains central to the functioning of the Australian 

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

developments in administrative law and their practical implications 

for Commonwealth administrators, decision-makers and lawyers. 



Intellectual Property Forum 2017 

Date TBA Canberra 2017 

For those people who are responsible for managing intellectual 

property or developing intellectual property policies. 



Australian Government Solicitor 

Issue 1: 2016 

© Commonwealth of Australia, represented by 

AGS 2016. Apart from any use permitted under 

the Copyright Act 1968 or unless otherwise 

expressly indicated all other rights are reserved. 

Requests for further authorisation should be 

sent to webhelp@ags.gov.au 

The material in this magazine is provided to AGS 

clients for general information only and should 

not be relied upon for the purpose of a particular 

matter. Please contact AGS before any action 

or decision is taken on the basis of any of the 

material in this magazine. 

ISSN 2206-7388 (Print) 

ISSN 2206-737X (Online) 

This biannual magazine is published by AGS 

Client Services. If you would like to subscribe to 

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

call Tiff Brown on 02 6253 7246. 

Editor and art director 

David Whitbread 

Guest writer 


Writers 

Sam Miley 

Diana Icasate 

Designer 

Mandy Orr 

Illustrator 

Tiff Brown 

Web publisher 

James Gergely 

Photographers 

Andrew Sikorski 

Paul Chapman 

Introducing Australian 

Government Solicitor 

magazine! 

Welcome to the first edition 

of our new magazine. 

Without an annual report to show 

you what we do and how we do it, 

we thought we’d create this new 

biannual publication to highlight 

some of our recent cases and tell 

you a bit about our practice and 

our people. 

We are also delighted that 

Justice Gageler agreed that we could 

publish his inspiring speech from 

the launch of our recently released 

biography of Dennis Rose AM QC, 

the Commonwealth’s first Chief 

General Counsel. 

Please send us any feedback 

and comments or request subjects 

you’d like covered in future issues by 

emailing ags@ags.gov.au 

I do hope you enjoy our first issue. 

Louise Vardanega PSM 

The Australian Government Solicitor A/g 

4 

GUEST WRITER 

Justice Stephen Gageler of the 

High Court of Australia 

What it is to be a government 

lawyer 

10 

CASE STUDY 

Norfolk Island governance reform 

12 

CASE STUDY 

Commonwealth v Director, Fair 

Work Building Industry Inspectorate 

14 

CASE STUDY 

Department of Agriculture and 

Water Resources concessional 

loan schemes 

15 

FEATURE 


Confidentiality and the Public 

Interest Disclosure Act 2013 15 

Confidentiality and freedom 

of information 17 

Confidentiality in 

Commonwealth contracts 21 

Impact of non-disclosure 

obligations on pre-trial processes 27 

Protecting confidential 

information before courts 

and tribunals 34 

‘Top secret’ – the provisions 

keeping Commonwealth 

information confidential 36 

39 

AGS news 

40 

AGS’s Office of General Counsel 

42 

AGS Dispute Resolution 

44 

AGS Commercial 

46 

Farewell to the Australian 

Government Solicitor Ian Govey AM 

www.ags.gov.au 

48 

AGS workforce and market 

2 

update 

3

Australian government solicitor 

ISSUE 1: 2016 

What is it to be a lawyer to 

government in the true sense? 

What it is 

to be a 

government 

lawyer 

Justice Stephen Gageler of the High Court of Australia 

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

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

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

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

It is good to be back at the site of 

the old Robert Garran Offices, where 

I once had the privilege of working 

closely with Dennis Rose. 

Most of us attending this launch 

are now, or have been, government 

lawyers. Some of us knew and 

worked with Dennis. Those of us 

within that category remember 

Dennis with esteem and affection. 

We remember Dennis the man. We 

remember the calm demeanour, 

the kindly disposition, the gentle 

spirit, the love of music, the love of 

bushwalking, the little giggle. This 

book will bring back the humanity 

of Dennis Rose. 

There are some in the room 

(and there will be many, I hope, in 

years to come) who did not know 

Dennis but who will have the 

opportunity to read this book and to 

be inspired by him. To those within 

that category, the great benefit 

of the book is that it illustrates, 

through the example of one life of 

public service, a life very well lived, 

just what it is to be a government 

lawyer – or, as Dennis liked to say, a 

counsel to the Crown. 

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

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

government lawyering. 

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

Intellectual rigour has at its base honesty and intelligence and 

implies consistency. 

2> 

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

create solutions. 

Combining creativity with intellectual rigour can involve following a path 

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

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

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

3> 

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

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

displayed in government lawyering) is a sense of purpose . 

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

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

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

is held together by enduring principles and values consistently recognised 

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

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

conscientious government lawyers have been astute enough to avoid the 

problems that might end up in court. 

JUSTICE STEPHEN GAGELER 

4 

5


ISSUE 1: 2016 

‘ 

Upholding the principles and values of 

a government lawyer in a time of crisis 

‘requires courage and conviction. 

Ian Govey AM, author Carmel Meiklejohn and 

Justice Gageler at the launch of Without fear 

or favour 

Without fear or favour 

Upholding the principles and values 

of a government lawyer in a time of 

crisis requires courage and conviction. 

These attributes are well-captured in 

the title Carmel Meiklejohn chose for 

this book, Without fear or favour. 

Most of us (certainly those of us 

who are getting on in age) can reflect 

back over our careers as lawyers to 

think of an episode or event that 

in some way made us what we are. 

I can think of a few in my own life, 

most of them bruising, all of them 

formative. They consolidated the 

person that I had become to that 

point, and helped to form the person 

that I was to become after it. 

For Dennis’s career, the defining 

event came when he was relatively 

young – 38 years old. The story is 

told in this book. Dennis also told 

me about it several times, and I wish 

I could now remember more of the 

detail and recall his exact words. What 

I do remember is the climax: Dennis 

raising his right fist, bringing it down 

on the table and saying words to 

the effect of, ‘No, Attorney-General, 

that will not be a loan for temporary 

purposes. If you go ahead without 

Loan Council approval, you will be 

committing a criminal offence!’ 

That moment stuck in the psyche 

of Dennis Rose. It epitomised the 

man who was to become the most 

respected government lawyer of his 

generation: striving to get to ‘yes’, 

but prepared to say ‘no’ without fear 

(although I suspect there was in that 

moment an element of trepidation) 

and certainly without favour. 

Mastery and precision 

There is a photograph in the book of 

the Attorney-General’s Department in 

1964 – almost all male, unsurprisingly. 

Sir Garfield Barwick, then Attorney- 

General, appears standing in the 

front row. Dennis had been in the 

Department for just 2 years. The 

following year, Dennis left the 

Department to spend a couple of 

years at the Australian National 

University, re-joining the Department 

in 1968. 

During that interlude at ANU, 

Dennis was asked to revise a little 

out-of-date textbook called Lewis’ 

Australian bankruptcy law. It showed 

a lot about Dennis that the book he 

thoroughly revised, brought through 

the 5th edition in 1967, and took 

through to the 11th edition in 1999, 

was always called Lewis’ Australian 

bankruptcy law. 

It showed his humility. It showed 

his constancy. It showed his mastery 

of technical subject matter. It showed 

the precision of his thought. And 

the fact that the little book (I’m 

sure, despite publisher’s pressures) 

remained, throughout those 

7 editions, a little book showed 

his economy of language. 

Chief General Counsel 

By 1980, Dennis had become head 

of the Advisings Division (which 

later became the General Counsel 

Division). In 1989, in recognition of his 

exceptional talent, he was appointed 

to the newly created position of 

Chief General Counsel. He was Acting 

Solicitor-General for protracted 

periods between 1992 and 1994. He 

was made a Commonwealth Queen’s 

Counsel, one of the very few, and one 

of the first. He was made a member of 

the Order of Australia in 1992. 

Legal development in Australia 

The time in which Dennis held 

senior positions within the Attorney- 

General’s Department was a time 

of great legal development within 

Australia. It was also a time of great 

change in Australian society. 

Many of the legal structures set 

in place during that time can be 

seen in retrospect to have been of 

a quasi-constitutional nature: the 

Family Court of Australia; the Federal 

Court of Australia; the entire modern 

administrative review system (the 

Commonwealth Ombudsman; the 

Administrative Appeals Tribunal, 

the Administrative Decisions 

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

in the Northern Territory 

and in the Australian Capital Territory; 

abolition of appeals to the Privy 

Council; severing of constitutional 

ties between Australia and the United 

Kingdom (with the negotiation and 

enactment of the Australia Acts); 

cross-vesting of court jurisdiction 

(about which Dennis had a deep 

and abiding concern); statutory 

recognition and protection of native 

title in the Native Title Act 1993 (Cth). 

The time saw the expanded use of 

heads of Commonwealth legislative 

power which had until then lain 

6 

7


ISSUE 1: 2016 

dormant or underutilised. Modern 

reliance on the external affairs power 

and on the corporations power began 

– though there might be some dispute 

about this – with the World Heritage 

Properties Conservation Act 1983 (Cth). 

Modern reliance on the taxation 

power, the final nail in the coffin of 

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

41; [1908] HCA 43) began with the 

Training Guarantee Acts and came 

into its own with the Superannuation 

Guarantee Acts. These were nationbuilding 

pieces of legislation. With 

their creation Dennis was intimately 

involved. 

Two legislative schemes in which 

Dennis was involved were not in the 

nation-building category but show 

his brilliant and creative technical 

lawyering at its best. The earlier was 

the Commonwealth Places (Application 

of Laws) Act 1970 (Cth). You would 

think that there would be no other 

scheme more technical and difficult 

to devise. But such a scheme exists, 

in the Child Support (Assessment) Act 

1989 (Cth) and its various interlocking 

pieces of legislation. Dennis devised 

that scheme too. Both schemes 

withstood intensive High Court 

scrutiny. 

Advocacy 

The changing times contributed to 

an expansion of litigation. This book 

tells of Dennis’s involvement in much 

of that litigation. It singles out for 

special mention his involvement 

in the Tasmanian Dams Case 

(Commonwealth v Tasmania (1983) 

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

wonderfully of his involvement in Cole 

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

HCA 18. 

Before Cole v Whitfield, there 

had been 140 cases on s 92 of the 

Constitution. Dennis personally 

undertook a comprehensive review of 

each of those cases. Not only did he 

contribute to the formulation of the 

new doctrine, which was presented 

in an extraordinarily coordinated 

argument by the Commonwealth and 

State Solicitors-General, but he also 

worked out exactly how each of the 

140 previous cases would have been 

decided under that new doctrine were 

it to be accepted. I saw that document 

once. Not only was it extraordinarily 

comprehensive; it was extraordinarily 

concise, extending for no more than 

10 or 12 pages. 

I asked one of my associates to 

find cases in which Dennis and I had 

appeared in court together. From 

memory, I thought that Dennis would 

have appeared in about a dozen cases 

and I would have been with him 3 or 

4 times. Dennis actually appeared as 

counsel in 66 cases. Fifty-five of them 

were in the High Court: 31 as junior 

counsel between 1984 and 1992, and 

24 as Queen’s Counsel between 1992 

and 1994. I appeared as his junior in 

12 of those cases. 

Where Rose QC was particularly 

effective as an advocate in the High 

Court was in creating the 3-page 

summary of argument that was 

handed up at the beginning of oral 

argument and that set out, in logical 

and concise propositions, the way 

through the difficulties of the case. 

He brought to his advocacy the same 

concise thinking that he brought 

to every other part of his work as a 

lawyer. 

The most memorable case in which 

I appeared with Dennis was not in the 

High Court. It was in the Full Court 

of the Federal Court, in Brisbane, 

relating to the Royal Commission into 

Aboriginal Deaths in Custody. It was 

1989, in the middle of the Australian 

pilots’ strike. We left Canberra in a 

light aircraft with 2 seats in the front, 

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

We left at 6 pm on a winter’s night. 

We got to Tamworth and refuelled 

at about 8 pm. We set out from 

Tamworth, through a thunderstorm 

in the dead of night, with Dennis in 

the front, me in the back, and with 

the pilot continuously tapping some 

instrument on the dashboard which 

obviously wasn’t working. I was 

traumatised by the time we arrived, 

but arrive we did. Dennis seemed 

unfazed. We appeared the next day 

and won the case. Mercifully, we were 

able to get a commercial flight back. 

The gold standard of advisers 

Dennis was good as an advocate. But 

he was best as an adviser. When it 

came to advising, Dennis Rose has 

been described as having been the 

‘gold standard’. I have always had 

some difficulty with that description; 

it makes me think of an outdated 

approach to international monetary 

policy. But I understand exactly what 

it was meant to convey. There was 

none better. 

I recently re-read one of his few 

advices that were published. It was 

an advice to the Republic Advisory 

Committee in 1993. It is available on 

the internet and it should be read 

because it shows what a written 

opinion should be. 

Writing an opinion 

A Dennis Rose opinion was an opinion. It was not 

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

a direct answer to a direct question. If the question 

asked was in any way obscure, the question was 

rephrased to make it sensible and the question 

as rephrased would be answered very sensibly. 

Reasons would be provided, and nothing but 

reasons would be provided. 

A Dennis Rose opinion was short, direct, succinct 

and decisive. The opinion would acknowledge 

uncertainty where uncertainty existed, but would 

never prevaricate. Where there was uncertainty as 

to the ultimate answer, the uncertainty was due to 

the vagary of the subject matter or the inherently 

predictive nature of the assessment to be made. 

It was never due to lack of precision of thought or 

expression on the part of the author. 

Coming away from my all-tooshort 

association with Dennis, I was 

convinced that I could never be able 

to think like Dennis Rose, but I was 

determined that I would at least try to 

write like Dennis Rose. I’m still trying. 

Congratulations to AGS and 

AGD for commissioning this book. 

Congratulations to Carmel for writing 

it, for chronicling the history, and for 

capturing so well the personality and 

the professional competencies of 

Dennis Rose. Treat it as launched. 

Without fear 

or favour: 

The life of 

Dennis Rose AM QC 

by Carmel Meiklejohn 

Dennis Rose AM QC was a broadly 

experienced government lawyer who 

ultimately became Australia’s first 

Chief General Counsel. In that role, 

he was both confidant and adviser 

to Prime Ministers, Cabinets and 

Attorneys-General. This account 

of his life and its impact is quite 

inspirational. 

Soft cover $22 (GST inclusive) 

To order your copy, 

please email ags@ags.gov.au 

or phone Tiff Brown 

T 02 6253 7246 

8 9


ISSUE 1: 2016 

Hilary Manson 

1 case study 

Emma D’Arcy 

Alice Kingsland 

Wancy Lam 

Nithya Ramesh 

Emilie Sutton 

Norfolk Island 

governance reform 

AGS advised the Department of Infrastructure and Regional 

Development on key aspects of Norfolk Island governance reform. 

This reform is significant and legally 

complex. It involves implementing 

new governance arrangements for 

Norfolk Island so that: 

• most core Commonwealth laws 

apply (such as those relating 

to income tax, social security, 

immigration, biosecurity, customs 

and health) 

• New South Wales law generally 

applies to Norfolk Island to cover 

State-level matters (for example, 

laws regulating the provision of 

health services) 

• there is an elected local council (the 

Norfolk Island Regional Council) to 

perform certain local-governmenttype 

functions, such as the 

classification, use and management 

of community land. 

In the 2014–15 financial year, AGS 

assisted with the first elements of the 

reform, which included development 

of the Norfolk Island Legislation 

Amendment Act 2015 and associated 

legislation. 

In 2016–17, a dedicated AGS team 

carried out a range of further work 

Photo from Wikipedia Commons 

on the project, including assisting the 

Department to develop a package 

of Ordinances as part of the new 

governance framework for Norfolk 

Island. These Ordinances gave effect 

to the Commonwealth’s policies on 

the range of New South Wales laws 

to be applied to Norfolk Island from 

1 July 2016, and amended certain 

laws that were made by the Norfolk 

Island legislature and are continued 

in existence under the Norfolk Island 

Act 1979. 

The team also drafted transitional 

rules and advised on related matters, 

including aspects of the service 

delivery agreement entered into by 

the Commonwealth and New South 

Wales. Under this service delivery 

agreement, New South Wales will 

provide a range of State-level services 

to Norfolk Island. Numerous AGS 

lawyers also provided advice to other 

relevant Australian Government 

departments on the application of 

various Commonwealth laws to 

Norfolk Island from 1 July 2016. 

AGS continues to assist the 

Department with the Norfolk Island 

governance reform project. This 

year, our Norfolk Island reform team 

included Senior General Counsel 

Hilary Manson and Counsel Emma 

D’Arcy, Alice Kingsland, Wancy Lam, 

Nithya Ramesh and Emilie Sutton. 

10 

11


ISSUE 1: 2016 

Commonwealth v Director, 

Fair Work Building Industry 

Inspectorate 

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

decision reaffirming that parties to civil penalty proceedings are 

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

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

The High Court’s decision in 

Commonwealth v Director, Fair 

Work Building Industry Inspectorate 1 

(CFMEU) reaffirmed the 

appropriateness and, in the case of 

regulators, the desirability of parties 

to civil penalty proceedings making 

submissions, on an agreed or separate 

basis, to a court as to the appropriate 

pecuniary penalty amount to be 

imposed. This is significant for the way 

in which regulators run and resolve 

cases, deal with respondents, and 

direct their enforcement resources. 

1 case study 

The High Court’s decision in 

CFMEU overturned a decision of the 

Full Federal Court in the proceedings 

in May 2015, that parties in civil 

penalty proceedings could not make 

submissions as to an appropriate 

penalty amount. The Full Federal Court 

based its decision on the principle 

in Barbaro v The Queen 2 (Barbaro) 

(a criminal proceeding) that the 

prosecution was not permitted to 

make a submission as to the range 

of sentences that may be imposed 

on an offender. 

However, in CFMEU the High Court 

unanimously found that the principle 

in Barbaro does not extend to civil 

penalty proceedings. 

The High Court’s decision reinforces 

basic differences between civil and 

criminal proceedings and upholds 

the approach to agreed penalties 

established in NW Frozen Foods v ACCC 3 

and Minister for Industry, Tourism and 

Resources v Mobil Oil Australia Pty Ltd. 4 

AGS acted for the Commonwealth 

in the proceedings. Key regulators 

involved were the Australian 

Competition and Consumer 

Commission, the Australian Securities 

and Investments Commission, the 

Australian Taxation Office, the Office 

of the Fair Work Ombudsman and 

the Director of the Fair Work Building 

Industry Inspectorate (now Fair Work 

Building and Construction). 

The Solicitor-General appeared for 

the Commonwealth before the High 

Court, assisted by Tim Begbie, AGS 

Senior General Counsel, with Ruth 

Higgins, Counsel. 

AGS lawyers Matthew Blunn, 

Katrina Close and Sarida McLeod were 

responsible for preparing the matter. 

Katrina had this to say about the 

experience of working on CFMEU: 

‘ 

The High Court’s 

decision reinforces 

basic differences 

between civil 

and criminal 

proceedings ... 

‘ 

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

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

for all our regulatory clients was a rare privilege.’ 

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

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

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

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

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

1 

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

2 

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

3 

(1996) 71 FCR 285. 

4 

(2004) ATPR 41-993. 

Matthew Blunn Katrina Close Sarida McLeod 

The High Court’s decision was the 

focus of discussion at the AGS Civil 

Regulators Forum, held in April 2016. 

Tim Begbie and AGS Senior Lawyer 

Nathan Sinnathurai hosted a panel 

discussion, featuring the ACCC’s 

Special Counsel Peter Renehan and 

ASIC’s Chief Legal Officer Michael 

Kingston, that scrutinised the 

common features of civil penalty 

regimes; the role of regulators as 

partisan, active and specialist litigants; 

and ongoing aspects of the courts’ 

expectations of regulators as litigants. 

The proceedings have reverted 

to the Full Federal Court for 

determination of penalty, with the 

hearing taking place in May 2016. 

At the time of publication, judgment 

is reserved. 

AGS published an Express law paper 

on this topic in December 2015 – see 

the ‘Publications’ section of the AGS 

website. 

12 13


ISSUE 1: 2016 

14 

Clare Derix 

1 case study 

Department of Agriculture 

and Water Resources 

concessional loan schemes 

Photo from Wikipedia Commons 

Over the past 3 years, AGS 

has helped the Department 

of Agriculture and Water 

Resources establish the 

Farm Finance Concessional 

Loan Scheme, the Drought 

Concessional Loans Scheme 

and the Drought Recovery 

Concessional Loans Scheme. 

Under these schemes, the 

Commonwealth lends money to each 

State, and to the Northern Territory. 

Those jurisdictions then use the funds 

to provide concessional loans to farm 

businesses – to help them recover 

from, and prepare for, drought. 

AGS has advised the Department 

on the design and structure of the 

schemes, as well as constitutional, 

legislative, contracting, commercial 

law, compliance, freedom of 

information, confidentiality and 

risk issues. 

We are the Department’s legal 

negotiator of the loan arrangements 

with each jurisdiction, and have 

been responsible for drafting the 

underpinning loan documentation 

between the Commonwealth 

and each State and the Northern 

Territory. We also helped negotiate 

arrangements with the Bureau of 

Meteorology to provide national 

maps and a web-based drought 

identifier. 

The Farm Finance Concessional 

Loans Scheme has now closed, but 

advice on the Drought Concessional 

Loans Scheme and Drought Recovery 

Concessional Loans Scheme 

continues. Work on the new Dairy 

Recovery Concessional Loans scheme 

has also commenced. This scheme 

is designed to assist dairy farmers 

impacted by the decision of Murray 

Goulburn and Fonterra in 2015–16 to 

reduce milk prices. The Department 

implemented the new scheme 

on 1 July 2016. AGS is advising on 

arrangements with a number of 

jurisdictions. 

At the outset of the Farm Finance 

scheme, the Department had little 

experience in undertaking this type 

of assistance. AGS’s strategic advice 

on the design and structure of the 

scheme was integral to the successful 

implementation of that scheme 

within a short turnaround time. 

AGS Senior Executive Lawyer 

Clare Derix has played a lead role in 

advising on the establishment and 

contract management of all the 

concessional loans schemes. Clare was 

initially outposted to the Department 

(from June 2013 to September 2013) to 

provide hands-on assistance during 

the design and negotiation phases 

of the Farm Finance project. During 

this period she gained insight into the 

Department’s business drivers, as well 

as a detailed understanding of the 

issues of particular concern to each 

jurisdiction. 

Since completing her outpost, Clare 

and her team in AGS Commercial have 

continued advising the Department 

on a variety of complex legal issues 

affecting the schemes, and on 

developing contracting options to 

achieve the Department’s objectives. 

The priorities and objectives for 

each of the schemes have evolved over 

time, necessitating a responsive and 

flexible approach. Many requests for 

advice have required consideration 

of a range of challenging issues, 

often within short timeframes. The 

Department’s feedback to AGS on 

the responsiveness and the quality 

of strategic legal advice has been 

consistently positive. Through our 

continuing involvement in these 

matters, we have accumulated 

significant corporate knowledge 

about the schemes, which the 

Department increasingly relies upon. 

Confidentiality and the Public Interest 

Disclosure Act 2013 

A public interest disclosure is a disclosure of information, usually by a ‘public 

official’ within the meaning of the Public Interest Disclosure Act 2013 (PID Act), 

to the public official’s supervisor, or to an appropriate ‘authorised officer’ under 

the PID Act, about wrongdoing by another public official. 

The PID Act contains a number of provisions that protect the confidentiality 

of certain types of information. A breach of some of these provisions can 

be a criminal offence. Penalties for breaching these provisions range from 

imprisonment for up to 6 months to imprisonment for up to 2 years. 

The PID Act also provides for a measure of confidentiality in the processing 

of public interest disclosures. 

This article discusses the key provisions of the PID Act that deal with 

confidentiality. 

Richard Harding 

Special Counsel Dispute Resolution 

T 02 9581 7671 

Section 20 of the PID Act makes it an offence 

for any person to use or disclose information 

that: 

• a person obtained in that person’s capacity 

as a public official 

• is likely to enable another person to be 

identified as a person who has made a 

public interest disclosure. 

Section 20(3) of the PID Act contains a number 

of exceptions to this prohibition. They include: 

• where the use or disclosure is for the 

purposes of the PID Act or another law of 

the Commonwealth 


In this issue 

Confidentiality and the Public Interest 

Disclosure Act 2013 15 

Confidentiality and freedom of information 17 

Confidentiality in Commonwealth contracts 21 

Impact of non-disclosure obligations on 

pre-trial processes 27 

Protecting confidential information before 

courts and tribunals 34 

‘Top secret’ – the provisions keeping 

Commonwealth information confidential 36 

15


ISSUE 1: 2016 

• where the second person has consented to the use or disclosure 

• where the identifying information has previously been lawfully published. 

It is worth noting that a threat to disclose the identity of a public interest discloser could 

amount to the taking of reprisal action under the PID Act. Also, in certain circumstances, 

making such a threat could amount to a criminal offence punishable by up to 2 years 

imprisonment. 

Under s 21 of the PID Act, a court or tribunal cannot require a person who is or has been a public 

official (within the meaning of that term in the PID Act) to: 

• disclose to a court or tribunal information that identifies a public interest discloser 

• produce to a court or tribunal a document that contains information that identifies a 

public interest discloser. 

This will apply unless, in either case, it is necessary to do so for the purposes of the PID Act. 

Section 23 provides that, if civil or criminal proceedings are instituted against an individual 

in a court and the individual makes a claim for immunity under s 10 of the PID Act (this is the 

immunity arising from having made a public interest disclosure), then the court must deal 

with that claim in separate proceedings. 


Confidentiality and freedom of information 

The Freedom of Information Act 1982 (FOI Act) provides a mechanism that allows the 

public to seek access to documents held by virtually all Commonwealth agencies. 

The FOI Act seeks to enhance representative democracy through improved public 

participation in government processes and increased scrutiny, discussion, comment 

and review of the Government’s activities. 1 

Section 44 of the PID Act provides that, when an authorised officer allocates a public interest 

disclosure to a principal officer for investigation under the PID Act, the authorised officer must 

not give the principal officer the name and contact details of the discloser unless the discloser 

has consented to this. 

Another aspect of the confidentiality issue is that, under s 57 of the PID Act, apart from a 

few exceptions, if a person gives information to a PID Act investigator when the investigator 

requests it and when the information is relevant to the PID Act investigation, the person will 

not be subject to any criminal or civil liability. So the person giving the information to the 

investigator – the witness – would be immune from an action for breach of confidence in 

this situation. 

The strongest secrecy provision in the PID Act concerns information obtained by persons 

acting in an official capacity under the PID Act – for example, supervisors who have received 

disclosures, authorised officers and investigators. Section 65 provides that, if a person obtains 

information in performing a function or exercising a power under the PID Act, they must not use 

or disclose that information except in certain circumstances. The exceptions are quite narrow. 

They include: 

• where the use or disclosure is for the purposes of the PID Act 

• where the use or disclosure is for the purpose of taking action in response to a disclosure 

investigation 

• where the information is not intelligence information and has previously been lawfully 

published. 

A breach of s 65 is punishable by up to 2 years imprisonment. 

It should also be noted that, subject to some exceptions, s 78 of the PID Act provides an 

immunity from criminal or civil proceedings, and from disciplinary action, for a principal 

officer, investigator, authorised officer or supervisor, for anything done in good faith in 

carrying out their duties under the PID Act. 

Justin Davidson 

Senior Executive Lawyer, AGS Dispute Resolution 

T 02 6253 7240 

The starting premise of the FOI Act is that any person is entitled to access any document upon 

request. 2 However, that premise is qualified: access is not available to an exempt document or 

to a conditionally exempt document if its disclosure would be contrary to the public interest. 3 

The exemptions to the general right of access are set out in Part IV of the Act. Some of those 

exemptions are designed to protect information that attracts legal obligations of confidence or 

otherwise requires protection due to its confidential nature. 

Documents containing material obtained in confidence 

Section 45 – ‘Documents containing material obtained in confidence’ – is the obvious place to 

begin. It provides: 

(1) A document is an exempt document if its disclosure under this Act would found an action, by a 

person (other than an agency, the Commonwealth or Norfolk Island), for breach of confidence. 

The orthodox application of s 45 usually involves importing the doctrines of equitable 

obligations of confidence. Section 45 is likely to apply where a document: 

• contains information that is identifiable with specificity 

• was communicated in a mutual understanding of confidence 

• has the necessary quality of confidentiality, where its proposed disclosure is not authorised 

and its unauthorised disclosure will cause detriment. 4 

1 Section 3, heavily paraphrased. 

2 Section 11 with s 11A(3). 

3 Section 11A(4)–(5). 

4 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443. Whether detriment must be separately established 

remains contentious, but the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information 

Act 1982 assume it should be proven (at [5.143], [5.155]). It may be sufficient to point to ‘the detriment to the citizen that disclosure of 

information relating to his affairs will expose his actions to public discussion and criticism’ (Commonwealth v John Fairfax and Sons Ltd 

(1980) 147 CLR 39 per Mason J). 

16 17


ISSUE 1: 2016 

An example is ACP Magazines Limited and IP Australia. 5 In this case the applicant sought access 

to a statutory declaration by a prospective trademark registrant in support of its application for 

registration. In upholding the s 45 exemption claim over some of the content of the declaration, 

the Acting Freedom of Information Commissioner found that the content was inherently 

confidential because: 

• it was known to only a limited group 

• on its face it had been communicated in the expectation that it would be kept confidential 

• material published by IP Australia held out that this type of material in declarations would 

be treated confidentially 

• disclosure to the FOI applicant would be unauthorised and, in the context of an ongoing 

trademark registration dispute, could cause the prospective registrant some detriment. 

While most s 45 cases turn on equitable principles, some have explored whether contractually 

based obligations of confidence can ‘found an action’ that triggers s 45. In ‘B’ and Brisbane 

North Regional Health Authority 6 the Queensland Information Commissioner was prepared 

to hold that they could. However, the Administrative Appeals Tribunal authorities on the 

point tend the other way, drawing a distinction between acts founding an action in breach of 

contract and acts founding an action in breach of confidence as the rationale for excluding the 

former from the test in s 45. 7 

Another question is whether a threatened breach of statutory confidentiality provisions gives 

rise to a s 45 claim. The Administrative Appeals Tribunal has been more willing to at least 

entertain such an argument. 8 In National Australia Bank Ltd and Australian Competition and 

Consumer Commission 9 the Freedom of Information Commissioner referenced a statutory 

confidentiality regime when finding that witnesses had a reasonably held expectation that 

‘protected information’ falling within that regime would be treated confidentially. That was a 

finding made within a mainstream analysis of equitable principles, rather than a finding of a 

standalone foundation for a s 45 claim based solely on the operation of the secrecy provision 

under consideration. 

Other exemptions 

Section 45 is not the only provision that can potentially exempt obligations of confidence. For 

example, trade secrets and confidential commercial information may be exempted under 

ss 47 or 47G. This occurred in ‘DN’ and Department of Agriculture. 10 In that case the Freedom of 

Information Commissioner exempted contingency plan information for emergency situations 

during live animal exports on the grounds that it had inherent commercial value that would 

be destroyed or diminished by disclosure. 

In a similar way, there is a rich vein of authority for the proposition that legitimately held 

expectations of confidentiality on the part of witnesses or complainants in an investigation 

are worthy of protection. In FT and Civil Aviation and Safety Authority 11 a s 45 claim was upheld 

in precisely this circumstance. 

More typically, this argument is articulated under s 47E (operation of agencies) within a claim 

that disclosure will discourage complainants and witnesses from coming forward in future 

or participating fully for fear that their contributions will not be kept confidential. A recent 

example of this is ‘HX’ and Australian Federal Police. 12 In this matter the FOI applicant sought 

access to a report by the AFP’s professional standards unit on code of conduct breach 

5 [2013] AICmr 20. 

6 (1994) 1 QAR 279 at [43]. See also Watt v Forests NSW [2007] NSWADT 197. 

7 See, for example, Matthews and Australian Securities and Investments Commission [2010] AATA 649 (Matthews) at [123]. 

8 Matthews at [124] ff (though finding the argument was not made good on the facts). 

9 [2013] AICmr 84 at [15] ff. 

10 [2014] AICmr 123. 

11 [2015] AICmr 37. 

12 [2016] AICmr 1. 

allegations. In exempting witness statements and the witness’s identifying information, the 

Acting Information Commissioner said (at [18]): 

I think that the context of confidentiality of complaints and investigations of this nature, even after 

the investigations have been concluded, supports the management or assessment of personnel 

functions of the AFP in dealing with alleged misconduct by officers, principally by encouraging 

candour. 

Where the identity of the source of information is itself confidential, s 37(1)(b) provides 

an exemption. While the exemption protects the identity of the informant and not the 

information they provide, it can also protect information if that protection is necessary to 

preserve the confidentiality of the informant. In some cases, that may be the whole of the 

information provided by them. 13 

Returning to statutory confidentiality provisions, s 38 picks up and applies some 2 dozen such 

regimes (listed in Schedule 3). The general effect of s 38 is that, where disclosure of a document 

would ordinarily breach a specified secrecy provision, that document is exempt from disclosure 

under the FOI Act. 

Information communicated in confidence by or on behalf of a foreign government, an 

international organisation or a State or Territory government is explicitly protected under 

ss 33(b) and 47B(b) respectively. In one respect this exemption is easier to satisfy than s 45: it 

does not require the information to have a necessary quality of confidence. 14 

Confidential government deliberations 

The exemption provisions above focus primarily on obligations of confidence owed to persons 

outside the Commonwealth Government. Section 45 explicitly excludes from its protection 

actionable confidences owed to ‘an agency, the Commonwealth or Norfolk Island’. 

But other exemptions recognise that, where the maintenance of confidentiality in intra- 

Commonwealth communications is essential, a good basis for withholding the material 

can be made out. For example, s 34 protects material necessary to ensure the continued 

confidentiality of Cabinet deliberations. 

The notion that, at times, government deliberations must necessarily attract a measure of 

confidentiality is articulated most frequently (and contentiously) in connection with s 47C. 

That provision conditionally exempts ‘deliberative matter’ – that is, matter ‘in the nature of, or 

relating to, opinion, advice or recommendation obtained, prepared or recorded, of consultation 

or deliberation that has taken place, in the course of, or for the purposes of, the deliberative 

processes involved in the functions of’ agencies, ministers or the Government. 

As a conditional exemption, it protects any part of a document that would be contrary to the 

public interest to disclose. In the context of weighing the public interest in the disclosure of 

government deliberations about the tenure of Allan Asher, former Commonwealth Ombudsman, 

Forgie DP recently 15 made this observation (at [77]): 

I accept the public service needs to be able to give totally frank advice to Ministers. I also accept that 

there will be occasions on which its officers need to do so on an understanding that their advice will 

be confidential. 

However, consistently with equitable notions of confidence, Forgie DP also considered that the 

passage of time may diminish the potency of claims of confidentiality over advice given to 

ministers (at [78]). 

In another recent case, 16 Bennett J (sitting as a presidential member of the Administrative 

Appeals Tribunal) considered an application for access to the incoming government brief 

presented to the Attorney-General following the 2013 general federal election. In weighing 

the public interest in disclosure, her Honour said (at [103]): 

13 Petroulias v Commissioner of Taxation [2006] AATA 333. 

14 Secretary, Department of Foreign Affairs v Whittaker (2005) 143 FCR 15. Note, however, that the State and Territory exemption is subject to 

a public interest test and that, in that way, questions of the inherent confidentiality of the information might become relevant. 

15 Secretary, Department of Prime Minister and Cabinet and Wood (Freedom of information) [2015] AATA 945. 

16 Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962. 

18 19


ISSUE 1: 2016 

In circumstances where an IGB necessarily contains incomplete material and analysis and is 

prepared for a new Minister in a new Government, it is important that those preparing an IGB do 

so without concern as to the consequences of doing so … It is important that those preparing the 

deliberative content of IGBs continue to understand that it may be not only frankly but also fully 

and in the knowledge that it is confidential to the intended recipient/s. It is then up to the Minister 

and the Secretary to determine any discretionary release. 

Concluding observation 

The cases discussed in this article demonstrate that the prospect of dishonouring a reasonably 

held expectation of confidentiality will often be a reliable foundation for a claim of exemption 

from disclosure under the FOI Act. While s 45 is the obvious starting point, depending on 

the circumstances in which the obligation of confidence arises, other exemptions may also 

be relevant. 

For those administering the FOI Act, a key challenge is obtaining evidence that enables 

them to conclude that any expressed expectation of confidence is in fact well founded. A 

bare assertion of an expectation of confidence, first articulated at the time the FOI request is 

received, will rarely be sufficient. Also, the mere marking of documents as ‘in confidence’ will 

not be sufficient. While the marking may indicate that some information in the document has 

an inherent quality deserving of exemption, in FOI analysis a mark on a document is not the 

end of the inquiry but the beginning. 


Confidentiality in Commonwealth contracts 

This article explores the unique issues that the Commonwealth must deal with 

when it considers confidential information in contracts. It also provides some 

tips to assist Commonwealth entities to better understand the issues at play. 

Stuart Hilton 

Senior Executive Lawyer 

T 03 9242 1431 

Lottie Flaherty 

Senior Lawyer 

T 02 6253 7164 

Joseph Cram 

Lawyer 

T 02 6253 7070 

What supplier information could the Commonwealth agree 

to keep confidential? 

It is often standard commercial practice to include very broad confidentiality provisions in 

contracts. These provisions require both parties to treat the contract and the information 

provided and generated under it as confidential. 

However, Commonwealth entities must comply with a range of Commonwealth 

accountability and reporting requirements that affect how the Commonwealth approaches 

confidential information in contracts. Therefore, entities need to take a more considered 

approach to designating or accepting certain information as confidential. 

Public accountability obligations require entities to appropriately limit the inclusion of 

confidentiality obligations in agreements. Also, under public accountability obligations 

Commonwealth entities may be required to report to the relevant Minister, and to Parliament 

and its committees, on particular arrangements or projects or they may need to disclose 

information to others under Commonwealth legislation. Therefore, contracts need to reflect 

these public accountability and disclosure obligations. 

These obligations are peculiar to government contracting and can mean that the 

Commonwealth’s position on confidentiality in its contracting arrangements is different from 

the approach that commercial parties might take to confidentiality in their private dealings. 

Procurement 

Under the Commonwealth Procurement Rules (CPRs), submissions in response to a request 

from a Commonwealth entity (that is, tender response documents and other procurementrelated 

material that a potential supplier submits to the Commonwealth) must be treated as 

confidential both before and after the award of a contract (para 7.21). This is usually spelled 

out in a clause of the relevant approach-to-market documentation. 

20 21


ISSUE 1: 2016 

When negotiating confidentiality obligations in a contract with a preferred supplier, the 

Commonwealth must consider additional policy requirements that apply to: 

• ‘commercial information’ of the supplier that is included in the terms of the contract 

• information that the contractor will create or provide as a result of performing the contract. 

In accordance with the policy guidance, entities should not agree to treat information 

as confidential except to the extent that the entity has determined that the supplier’s 

information satisfies the ‘Confidentiality Test’ in accordance with the Department of Finance 

(Finance) Confidentiality Throughout the Procurement Cycle policy. 

The Confidentiality Test comprises four criteria: 

• the information to be protected must be specifically identified 

• the information must be commercially ‘sensitive’ 

• there is a real risk that the disclosure of the information would cause unreasonable 

detriment to the owner of the information or another party 

• the information was provided under an understanding that it would remain confidential. 

Supplier claims of confidentiality must be measured against the four criteria in the 

Confidentiality Test. Finance’s guidance on the application of the Confidentiality Test suggests 

that only a small amount of supplier information would pass it. 

The guidance that Finance provides on its website includes further commentary on the 

criteria and a number of case studies that explain why certain types of information may or 

may not meet the requirements of the Confidentiality Test. AGS has also provided some tips 

on applying the test: see Express Law No 239. 

Whatever decisions entities make about confidentiality, entities should ensure that they 

document their assessment and reasons for deciding whether to accept or reject a supplier’s 

claim for confidentiality. 

Grants 

The position is less strict for Commonwealth grants under the Commonwealth Grant Rules 

and Guidelines (CGRGs) – there is no equivalent of the Confidentiality Test discussed above. 

However, the CGRGs do emphasise the importance of entities ensuring that they meet their 

transparency and public accountability obligations in administering Commonwealth grants. 

Accordingly, it is good practice for entities to avoid agreeing to keep information confidential 

where this would be inconsistent with these obligations (see para 5.1 of the CGRGs). For this 

reason, Commonwealth entities may wish to adopt an approach to grants similar to their 

approach to procurements. 

Other types of agreements 

Other types of contractual arrangements that are not procurements or grants may need 

to impose confidentiality obligations on the Commonwealth. Examples are loans and 

employment contracts. As with grant agreements, while some of the specific policy 

requirements discussed above may not apply to these other agreements, entities may wish 

to adopt a similar approach to confidentiality. 

What information should the Commonwealth require 

suppliers to keep as confidential? 

In many circumstances the Commonwealth itself will want suppliers to keep information 

confidential. The CPRs provide that ‘When conducting a procurement and awarding a contract, 

relevant entities should take appropriate steps to protect the Commonwealth’s confidential 

information’ (para 7.20). 

A number of government policy and legal requirements prevent disclosure of certain 

information (for example, classified information under the Protective Security Policy and ‘secret’ 

information under Commonwealth secrecy legislation) or give the public access to other types of 

information (for example, the Freedom of Information Act 1982 and the Privacy Act 1988). Most 

entities have well-developed processes that apply to decisions about when, what and how such 

information will be released. Under a contract with a supplier, entities may provide the supplier 

with other types of third-party information that the supplier should be required to treat as 

confidential (for example, material licensed from third parties that must be given to a supplier). 

Accordingly, the default approach for many Commonwealth entities is often to require 

contractors to treat all information that the entity develops or provides as confidential. Many 

entities also include provisions that cover secrecy and security requirements concerning 

the information that is likely to be disclosed or created under the contract. It is important to 

review these standard provisions to ensure they are appropriate for the particular contract. 

In addition to a confidentiality clause in the contract, there may be other steps that should 

be taken. For example, where a supplier needs to be given personal information or other 

information that is particularly sensitive, entities may need to develop bespoke arrangements 

for the treatment of confidential information, such as specific deeds of confidentiality or 

non-disclosure agreements with supplier and subcontractor personnel. 

Can confidentiality obligations arise outside the terms of 

the contract? 

Personnel undertaking grants administration and procurement activities should be aware of 

how easily confidentiality obligations can arise in relation to supplier information, regardless 

of what request documentation, grant guidelines or contracts might say. 

When tendering for work or performing a contract, suppliers may provide or develop 

information that they express to be confidential. Personnel within Commonwealth entities 

must be careful not to make representations or give undertakings that they will maintain 

the confidentiality of suppliers’ commercial information that are contrary to the relevant 

approach to market and/or contract, because this may result in an obligation of confidentiality 

arising at law (that is, independently of the contract). Such obligations could be inconsistent 

with the Commonwealth’s legislative and policy requirements. 1 

What are Commonwealth entities’ reporting obligations? 

Commonwealth entities have reporting obligations where contracts contain clauses that require 

the Commonwealth to keep information confidential. These obligations are found in a number 

of places, including the: 

• CPRs 

• CGRGs 

• Senate Procedural Order of Continuing Effect: Entity Contracts (the Senate Order). 

The Senate Order requires entities to report contracts entered into in the past 12 months 

with a consideration value of $100,000 or more that contain: 

provisions requiring the parties to maintain confidentiality of any of its provisions, or whether there 

are any other requirements of confidentiality, and a statement of the reasons for the confidentiality. 2 

The similarities in and differences between the sources of reporting obligations are described 

in Annex A. 

1 As set out in AGS Factsheet No 25, at law, where one party communicates to another private or secret matters on the express or implied 

understanding that the communication is for a confidential purpose, these communications are treated as confidential. 

See http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/contract-issues/confidentiality-procurementcycle/tips.html. 

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

22 23


ISSUE 1: 2016 

What must be reported under the Senate Order? 

Resource Management Guide No 403: Meeting the Senate Order on Entity Contracts (RMG- 

403) provides guidance to entities on how to meet the reporting requirements under the 

Senate Order. RMG-403 contains a reporting template and Minister’s letter to help entities 

meet the requirements of the Senate Order. 

First, to determine whether a contract needs to be reported, entities need to assess whether the 

contract requires the parties to: 

• keep information contained in the contract as confidential 

• keep information generated during the performance of the contract as confidential. 3 

Secondly, entities need to identify whether the obligation of confidentiality relates to specifically 

identifiable information. RMG-403 provides: 

Most of the contracts listed contain confidentiality provisions of a general nature that are designed 

to protect the confidential information of the parties that may be obtained or generated in carrying 

out the contract. 

As a general rule, the only contracts that must be specifically reported are contracts with 

contractual provisions that require the Commonwealth to keep specific information 

confidential. For example, the standard confidentiality clause in the Commonwealth 

Contracting Suite contains confidentiality obligations for the supplier. These do not need to be 

reported unless there is a specific confidentiality obligation on the Commonwealth. 

Entities should be aware of situations where the Commonwealth may be required to keep 

information confidential even though it has not agreed to this. For example, if a contract 

contains a provision that allows a supplier to unilaterally specify information that the 

Commonwealth must treat as confidential (which would not meet the Confidentiality Test) 

then it may be appropriate to report the contract. 

How accurately have Commonwealth entities applied the 

Confidentiality Test and their reporting obligations? 

Paragraph (5) of the Senate Order requests the Auditor-General to audit a selection of contracts 

that entities have reported and provide a report to Parliament indicating whether entities are 

using confidentiality provisions inappropriately. 

The most recent Performance Audit Report 4 by the Australian National Audit Office (ANAO) 

found that, generally speaking, entities were complying with the reporting requirements in a 

timely manner. 

However, the report suggests that there is room for improvement in how entities apply Finance’s 

Confidentiality Test and report confidentiality provisions in contracts. In particular, the ANAO 

found that of the 101 contracts audited: 

• 22 contained a specific confidentiality provision that did not accord with Finance’s 

Confidentiality Test 

• 59 were incorrectly reported, either because the confidentiality section stated ‘nil’, ‘not 

applicable’ or ‘none specified’ (29 contracts) or because the section did not actually contain a 

specific confidentiality provision (that is, it contained only a general confidentiality provision 

concerning information that was to be obtained or generated as part of the delivery of the 

contract) (30 contracts). 

The ANAO also said in its report: 

Most government contracts contain general confidentiality provisions and entities publish an 

overarching statement with their Senate Order listing advising of the existence of, and reasons for, 

the inclusion of such provisions. General confidentiality provisions are not required to be reported 

where an overarching statement is supplied. 5 

3 See paras 46–47 of RMG-403. 

4 Of the 93 entities required to publish contract listings under the Senate Order, 78 had done so or advised that no relevant contracts had 

been entered into in 2014 by the relevant due date. A further 14 entities complied within a month of the due date. By the end of the 

2014–15 financial year, only one entity had not yet published a listing. 

5 Para 3.6, footnotes omitted. 

What future changes should Commonwealth entities look for? 

AusTender must now be used to report procurement contracts under the 

Senate Order 

As of the 2015–16 financial year, to meet the requirements of the Senate Order, entities must 

use AusTender reporting for procurement contracts. However, given the list of contracts on 

AusTender concerns procurements, it is unlikely to be a complete list for the purposes of the 

Senate Order, because the Order has a broader application (for example, it covers grants and 

other non-procurement agreements). If entities accurately record their procurement contracts 

on AusTender and reference this listing on their website, they will meet the Senate Order 

obligations for their procurement contracts. 6 However, they will still need to ensure they are 

meeting the Order requirements for non-procurement contracts. 

Changes to reporting requirements from 1 July 2017 

Under para (9A) of the Senate Order, from 1 July 2017 the Order will also apply to Corporate 

Commonwealth entities (except trading public non-financial corporations as classified by the 

Australian Bureau of Statistics). 

Tips for Commonwealth entities 

Tip 1: Make sure your request documentation (including draft contracts) reflects the 

Commonwealth’s requirements 

Approach-to-market documentation and grant guidelines should: 

• inform potential participants in the process how the entity will handle their submissions 

• inform potential participants how the entity will assess any claim for confidentiality (that is, 

in the case of procurements, against the Confidentiality Test described in Finance guidance) 

and request that the participant provide details in support of any claim of confidentiality in 

their submission so that the claim can be assessed 

• inform potential contractors of the proposed confidentiality regime in the draft contract or 

grant agreement. 

Tip 2: Be aware of how obligations of confidentiality can arise 

If a supplier claims that information is confidential (by marking a document as ‘confidential’ or 

‘commercial-in-confidence’) and this is inconsistent with the terms of the contract then entity 

personnel should: 

• object to this marking 

• request that the information be removed 

• expressly say that they do not regard the information as confidential. 

This will help reduce the risk of confidentiality obligations arising outside the terms of the 

contract. 

Tip 3: Conduct a case-by-case assessment of confidentiality claims, document the reasoning and 

update the agreement 

Entities should conduct a case-by-case assessment of each contractor claim for confidentiality 

– including, in the case of procurements, by applying the Confidentiality Test to each – and 

document the decision. Care should be taken to ensure the contract or grant agreement then 

accurately reflects the outcome. 

Tip 4: Report specific confidentiality provisions 

Entities should ensure that they report specific confidentiality obligations under the Senate 

Order in accordance with the requirements of the Order. Remember that the Senate Order 

applies to more than just procurement contracts. 

6 See paras 19–24 of RMG-403. 

24 25


ISSUE 1: 2016 

Annex A – Confidentiality reporting requirements 

Which 

Commonwealth 

entities does this 

apply to? 

What is the 

monetary 

threshold for 

reporting? 

Senate Order 

Until 1 July 2017, applies to 

non-corporate Commonwealth 

entities within the meaning 

of the Public Governance, 

Performance and Accountability 

Act 2013 (PGPA Act). 7 

From 1 July 2017 it will also 

apply to most corporate 

Commonwealth entities. 

The Senate Order applies to 

contracts that provide for a 

consideration to the value of 

$100,000 or more. 

Commonwealth Procurement 

Rules 

Relevant entities, being noncorporate 

Commonwealth 

entities, and prescribed corporate 

Commonwealth entities that 

must comply with the CPRs when 

performing duties related to 

procurement. 

The reporting thresholds are: 

• $10,000 for non-corporate 

Commonwealth entities 

• for prescribed corporate 

Commonwealth entities: 

– $400,000 for procurements 

other than construction 

services procurements 

– $7.5 million for procurements 

of construction services. 

Commonwealth Grant 

Rules and Guidelines 

All non-corporate 

Commonwealth entities 

(entities) subject to the 

PGPA Act. 

No minimum or 

maximum monetary 

threshold. 


Impact of non-disclosure obligations on 

pre-trial processes 

This article considers the impact that non-disclosure obligations can have on 

pre-trial processes in civil court proceedings. In particular, we examine 

non-disclosure obligations that may apply to: 

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

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

preparation of witness statements. 

What contracts 

need to be 

reported? 

Other reporting 

thresholds/ 

restrictions 

Reporting of 

confidentiality 

clauses 

All forms of government 

agreements, based on their 

legal status, rather than the 

name given to the arrangement, 

including procurement 

contracts, lease arrangements, 

sales contracts, certain grants 

and funding agreements, and 

employment contracts. 8 

The Senate Order requires the 

list to be limited to each contract 

entered into by the entity that has 

not been fully performed or that 

has been entered into during the 

previous 12 months. 

These obligations apply to a 

procurement contract, being an 

arrangement (which includes 

a contract, agreement, deed 

or understanding) for the 

procurement of goods or services 

under which relevant money is 

payable or may become payable 

(including standing offers and 

panels). 

Required. Required. Required. 

These obligations apply 

to grants. 9 

Matthew Blunn 



T 02 6253 7424 

Paul Vermeesch 

Deputy Chief Solicitor Dispute 

Resolution 

T 02 6253 7428 

Non-disclosure obligations 

Louise Rafferty 



T 02 6253 7005 

Christopher Behrens 


Acting Co-Team Leader, 


T 02 6253 7543 

Statute and the general law 1 impose a range of non-disclosure obligations on the 

Commonwealth and its officers and employees and on other persons. These obligations can 

potentially prevent those people from disclosing information, including in court proceedings. 

Timeframe within 

which the report 

must be made 

The Minister is to table a letter 

every 6 months, no later than 

2 calendar months after the end 

of each financial and calendar 

year (ie by 31 August and 

28–29 February each year) 

outlining compliance with the 

Senate Order (identifying where 

to find each entity’s contract 

listing). 

Procurement contracts and 

amendments to them must be 

reported by Commonwealth 

entities within 42 days of 

entering into or amending 

the contract. 

An entity must publish on 

its website information 

on individual grants no 

later than 14 days after 

the grant agreement 

takes effect. 10 

7 Section 11 of the PGPA Act provides that there are 2 types of Commonwealth entity: a corporate Commonwealth entity, which is a Commonwealth 

entity that is a body corporate; and a non-corporate Commonwealth entity, which is a Commonwealth entity that is not a body corporate. 

8 See footnote 1 on p 11 of the ANAO report; and paras 4 and 28 of RMG-403, which provides that contracts formed through grants, sales of goods/ 

services by an entity, disposals by an entity and other financial arrangements (non-procurement contracts) are to be included in the internet listing. 

RMG-403 also provides that purchases of goods, services, land or buildings, leases of premises, employment contracts that do not involve enterprise 

bargaining agreements, and agreements between the Commonwealth and a separate legal entity from the Commonwealth are all likely to constitute 

a contract for the purposes of the Senate Order (see para 33). 

9 See paras 2.3–2.6 of the CGRGs for what constitutes a grant. 

10 See paras 5.3 and 5.4 of the CGRGs. Once operational, entities must report on the whole-of-Australian-Government register instead. 

Non-disclosure obligations under statute 

There are many hundreds of secrecy provisions in Commonwealth statutes. 2 Some, but not all, of 

these secrecy provisions themselves make it a criminal offence to contravene the non-disclosure 

obligation that the secrecy provision imposes. Contravention of any non-disclosure obligation 

imposed by Commonwealth statute may also be a criminal offence under s 70 of the Crimes 

Act 1914. 

Statutory non-disclosure obligations operate according to the terms of the statute. Below we 

consider 3 examples of non-disclosure obligations that apply generally to Commonwealth 

information. Many other non-disclosure obligations are specific to particular types of 

information relevant to particular agencies. 

1 The general law comprises judge-made law, including the common law and equity. 

2 In its 2010 report, the Australian Law Reform Commission identified 506 secrecy provisions in Commonwealth legislation: see Secrecy 

laws and open government in Australia, ALRC Report No 112. 

26 27


ISSUE 1: 2016 

Section 70 of the Crimes Act 

Section 70 of the Crimes Act is a general offence provision concerning unauthorised disclosures. 

Under s 70 it is an offence for a Commonwealth officer to publish or communicate any fact or 

document which comes into the officer’s knowledge or possession by virtue of their being a 

Commonwealth officer and which it is the officer’s duty not to disclose. It is also an offence for a 

former officer to disclose such information where it was their duty to not disclose it when they 

ceased to be a Commonwealth officer. 

Section 70 itself does not contain a non-disclosure duty. Rather, it criminalises a disclosure that 

contravenes an applicable non-disclosure duty. Regulation 2.1 of the Public Service Regulations 

1999 is an example of a non-disclosure duty breach of which can be an offence under s 70 of the 

Crimes Act. 3 

It is not an offence under s 70 if the officer (or former officer) was authorised to make the 

disclosure. 4 

Regulation 2.1 of the Public Service Regulations 

Regulation 2.1 of the Public Service Regulations is a secrecy provision that applies generally to 

current public servants in the Australian Public Service (APS). 5 

It provides that, subject to specified exceptions, an APS employee must not disclose certain types 

of information, including: 

• confidential information 

• information the disclosure of which would be prejudicial to the Commonwealth on certain 

specified grounds. 6 

Regulation 2.1 sets out exceptions to those non-disclosure obligations, including where 

disclosure is: 

• in the course of the APS employee’s duties 

• authorised by law. 

Privacy Act 

The Privacy Act 1988 imposes on Commonwealth agencies some general restrictions on the 

disclosure of personal information. The non-disclosure obligations under the Privacy Act are 

subject to exceptions, including where disclosure is: 

• required or authorised by or under an Australian law 7 or a court or tribunal order 8 

• reasonably necessary for the establishment, exercise or defence of a legal or equitable claim. 9 

Exceptions to statutory non-disclosure obligations 

In each case, careful consideration needs to be given to the terms of the particular secrecy 

provision, the information in issue and the circumstances of the proposed disclosure. 

Some statutory non-disclosure provisions have limited exceptions. For example, some would 

not permit an authorisation that would enable the voluntary disclosure of information for the 

purposes of the conduct of a court proceeding. 

3 See R v Goreng Goreng [2008] ACTSC 74. In that case the ACT Supreme Court also held that reg 2.1 did not breach the implied 

constitutional guarantee of freedom of political communication and was valid. 

4 It is not clear that s 70 is the source of any power to give authorisation for a disclosure and, if so, by whom. In AS v Minister for 

Immigration and Border Protection (Ruling No 3) [2015] VSC 642 the Court left this issue open. 

5 See also s 28 of the Public Governance, Performance and Accountability Act 2013 for a general non-disclosure obligation that applies to 

Commonwealth officials. 

6 Regulation 2.1 of the Public Service Regulations 1999 provides that the prohibition against disclosure of confidential information applies 

regardless of whether the disclosure would found an action for breach of confidence under the general law. 

7 ‘Australian law’ is defined by s 6 of Privacy Act 1988 to mean: 

(a) an Act of the Commonwealth or of a State or Territory; or 

(b) regulations, or any other instrument, made under such an Act; or 

(c) a Norfolk Island enactment; or 

(d) a rule of common law or equity. 

8 See cl 6.2(b) of Australian Privacy Principle 6 in Schedule 1 to the Privacy Act 1988. 

9 See cl 6.2(c) of Australian Privacy Principle 6 in Schedule 1 to the Privacy Act 1988 and item 4 in the table in s 16A of the Privacy Act 1988. 

It is not unusual for secrecy provisions in Commonwealth legislation to permit a disclosure 

that is mandated by a legal obligation such as a court order. 10 That is not always the case. For 

example, some statutory secrecy provisions make it clear that a court order cannot compel a 

person to provide information’. 

Non-disclosure obligations under general law 

Non-disclosure obligations under the general law include: 

• equitable or fiduciary obligations that, if breached, would found an action for breach of 

confidence 11 

• express or implied contractual obligations of confidentiality. 12 

Exceptions to non-disclosure obligations under the 

general law 

The general principle is that an action for breach of confidence or breach of contract cannot 

be made out where the disclosure is legally mandated – for example, by a court order. It is also 

now reasonably common for statute to compel (or at least enable) the use of information (even 

where that information is confidential) in decision-making and regulatory investigations. 

A person who owes a non-disclosure obligation under the general law can be expected to 

take appropriate steps to discharge their obligation until any overriding disclosure obligation 

comes into operation, unless the person to whom an ongoing confidentiality obligation is 

owed relieves them of that obligation. 

Disclosure obligations of parties in court proceedings 

A party to court proceedings is subject to a range of processes for compulsory disclosure of 

information, including discovery. Other compulsory court processes for compelling a party 

or other person to provide another party with information include interrogatories, notices to 

produce and subpoenas. 13 

Some statutes relating to the conduct of civil proceedings impose disclosure obligations on 

a party. For example, s 26 of the Civil Procedure Act 2010 (Vic) provides that, subject to some 

exceptions, there is an overarching obligation on a party and its legal representatives to 

disclose to another party the existence of all documents that are, or have been, in that person’s, 

possession, custody or control of which the person is aware and which the person considers, or 

ought reasonably consider, are critical to the resolution of the dispute. 

In the interests of timely, efficient and cost-effective conduct of litigation, and consistent 

with a party’s overarching statutory obligations in that regard, 14 parties sometimes agree to 

voluntarily provide information to each other. These arrangements are commonly referred to 

as informal discovery. This is in contrast to formal discovery, where a court order mandates the 

disclosure of the information. 

A party that proposes to provide informal discovery or to otherwise volunteer information 

needs to ensure they comply with any applicable non-disclosure obligations under statute or 

the general law. 

10 For example, it would not be a breach of the Privacy Act 1988 or of reg 2.1 of the Public Service Regulations 1999 or an offence under s 70 

of the Crimes Act 1914 if the disclosure were mandated by a binding court order. 

11 See Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 as to the elements of an action by the Commonwealth for breach 

of confidence for disclosure of government information. In addition to establishing the usual elements of an action for breach 

of confidence, the Commonwealth must also establish some detriment to the public interest, such as the disruption of ordinary 

government business. See AGS Legal Briefing No 64: Identifying and protecting confidential information (4 July 2002). 

12 An employee can have a non-disclosure obligation where they are lawfully and reasonably directed not to disclose the information 

in issue. An employee’s implied contractual duty of good faith and fidelity also comprises non-disclosure obligations. See Bennett v 

President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 for a discussion of these contractual obligations in the 

APS context. 

13 Subpoenas are generally only used to compel third parties to produce information. Discovery is generally the appropriate mechanism for 

disclosure of information between parties, but subpoenas are used on occasion. 

14 See, for example s 37M of the Federal Court of Australia Act 1976. 

28 29


ISSUE 1: 2016 

A party that is complying with a formal discovery order or other compulsory court process also 

needs to ensure they comply with any applicable non-disclosure obligations under statute 

or the general law. As noted, usually the terms of statutory non-disclosure obligations allow 

parties to disclose information if a court order requires them to do so. 

Confidential information and discovery 

The Commonwealth is not required to disclose information pursuant to a compulsory court 

process such as discovery where the information is privileged on grounds of legal professional 

privilege. 15 

The Commonwealth may also rely on public interest immunity (PII) to resist disclosure of 

information pursuant to a compulsory court process. PII is a common law principle based 

on the exercise of judicial discretion to prevent the disclosure of information where that 

disclosure would be contrary to the public interest. 

PII is never more than a claim until the court has undertaken a balancing exercise on 

the respective competing public interests. That balance turns on the importance of the 

information to the administration of justice – the very same information may be protected in 

one context (for example, where it is unimportant to a minor civil case) and not in another (for 

example, where it is critical to proving the innocence of a person charged with serious crimes). 

Confidentiality obligations under the general law do not prevent compliance with compulsory 

court processes such as discovery orders. 

The Default Document Management Protocol attached to Federal Court Practice Note CM6 

Electronic technology in litigation reflects a common practice that agreed or court-ordered 

management protocols for discovery may: 

• include a means for a party to identify a discovered document as being in whole or part 

subject to a claim of privilege or a claim of confidentiality 

• permit non-disclosure of documents that are subject to a claim of privilege or confidentiality 

• permit redactions of parts of documents that are subject to a claim of privilege or 

confidentiality. 

The Federal Court’s Default Document Management Protocol states that: 

• if a party presses for access to a discovered document which is claimed in whole or part to be 

privileged or confidential, the Court can rule on that issue 

• where the Court determines that a document is privileged or confidential, access to the 

document or parts of it is restricted in accordance with any order. 

Confidentiality is not a ground for non-disclosure of a relevant document. A court may decline 

to require disclosure of confidential information that is of no or marginal relevance to matters 

in issue in the proceeding. Where confidential information is relevant, the Court may make 

appropriate orders to require some extent of disclosure (for example, to legal representatives) 

while protecting, to the extent possible, the confidentiality of the information. 16 A party 

asserting confidentiality has an onus to prove that the information is in fact confidential. 

Court orders permitting a prospective witness to disclose 

information to a party 

Courts routinely make orders requiring a party to file and serve its evidence by a specified 

date. These orders do not impose any obligations on prospective witnesses. 

15 AGS Legal Briefing No 87: Legal professional privilege and the government (15 July 2008). 

16 Paragraph 7.82 of the Law Council of Australia’s Federal Court case management handbook (available on the website of the Federal Court 

of Australia) states that, although parties may agree to redact confidential material in discovered documents, other parties should be 

given access to that information at least via their external legal advisors where the material is confidential but also relevant to facts and 

issues in the proceedings. 

A court can issue a subpoena requiring a person to attend a hearing to give evidence. A 

subpoena does not require the witness to give any information to any party in advance of 

the hearing. 

A party is free to approach any person as a prospective witness. In the absence of a court 

order, a prospective witness is not obliged to give any information to any party. However, if 

the prospective witness chooses to confer with a party, they are required to comply with any 

applicable non-disclosure obligations. 17 

Courts rarely consider making orders about any pre-trial disclosures by a prospective witness. 

In practice, communications between a party and a prospective witness are generally a matter 

for them alone. 18 

To avoid any forensic disadvantage, usually a party will not reveal to another party the 

identities of their prospective witnesses until witness statements or affidavits are filed. 19 

AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 (AS Ruling 

No 3) is an example of an unusual case where a court made orders to facilitate a prospective 

witness’s disclosure of information to a party’s legal representatives. 

In AS Ruling No 3 the Victorian Supreme Court made orders to enable the plaintiff’s lawyers to 

interview potential witnesses for trial without the potential witnesses being at risk of breach 

of non-disclosure obligations under the Australian Border Force Act 2015 (the ABF Act). 20 The 

Court held that, consistent with the common law and the provisions of the Civil Procedures 

Act 2010 (Vic), the Court should do everything appropriate to facilitate a fair trial. The Court 

considered that to ensure a fair trial in a civil proceeding it is vital that a party is able to 

present its evidence as freely as possible, including by way of the interviewing of prospective 

witnesses prior to trial – where the prospective witness is willing to confer. 21 

The Court’s orders established a confidential process by which, following consideration of a 

confidential solicitor’s affidavit about the prospective evidence, the Court could identify to the 

plaintiff’s solicitors a particular witness who was permitted by the Court’s orders to disclose 

information to the plaintiff’s solicitors without breach of the ABF Act. 

The Court was not prepared to make blanket orders in the abstract that would relieve potential 

witnesses of all other non-disclosure obligations that might apply in addition to those under the 

ABF Act. The Court was prepared if needed to consider applications for further orders relieving 

potential witnesses of additional non-disclosure obligations. 22 While it did not rule on the 

issues the Court made the following observations about relieving prospective witnesses of 

non-disclosure obligations under the general law, such as equitable and contractual obligations 

of confidentiality: 23 

• While the Court has power to ensure that a witness at trial is relieved from confidentiality 

obligations when giving evidence (absent some statutory provision), the position in regard to 

pre-trial disclosure is not entirely clear. 

• The High Court in A v Hayden (No 2)(1984) 156 CLR 532, 557 noted that obligations of 

confidentiality will not be enforced where their application might involve ‘an interference 

with the administration of justice’. 

• The Court should not intervene until the nature of the obligation of a particular witness is 

identified with some precision. Then the question of the public interest in the administration 

of justice and the competing considerations can be examined. 

17 See, for example, Deacon v Australian Capital Territory [2001] ACTSC 8. 

18 See, for example, Deacon v Australian Capital Territory [2001] ACTSC 8. 

19 In AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642, the Supreme Court of Victoria made orders as set 

out in the ruling at [57] that required confidential disclosure to the Court of the identity of a prospective witness but did not require 

disclosure of that information to other parties. 

20 The orders are set out at [57] of AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642. 

21 AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 at [12] and [61]. 

22 The Court (Forrest J) considered that it was not necessary at that stage to make orders about other non-disclosure obligations: see 

[44] - [52] and [58] of AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642. As observed by Forrest J at [56] he 

took a somewhat different approach to that taken by McDonald J in making orders for a similar purpose in Kamasaee v Commonwealth, 

Supreme Court of Victoria, No SCI 2014 6770. Justice McDonald did not give written reasons for making those orders. 

23 AS v Minister for Immigration and Border Protection (Ruling No 3) [2015] VSC 642 at [47] - [62]. 

30 31


ISSUE 1: 2016 

• In practical terms, the question of relief from confidentiality obligations of this sort will need 

to be approached on a witness-by-witness basis. 

• If there is an impasse as to the effect of confidentiality obligations in the pre-trial process, the 

court may need to fashion its own processes to deal with the issue. This could include use of 

a confidential deposition of a relevant witness as that may reduce the scope for argument 

about appropriate processes. 

Confidentiality obligations of parties 

Courts can also make specific orders to protect the confidentiality of information that is the 

subject of discovery or other compulsory court processes. Compliance with court-ordered 

confidentiality regimes in discovery is potentially complex and expensive. Parties should give 

careful consideration to the need for such a regime and should be very careful to require the 

party asserting that a document is confidential to demonstrate that the document is in fact 

confidential. 24 

However, court proceedings are generally conducted publicly and there are limited 

circumstances in which the courts will order suppression or non-publication of evidence 

given in proceedings. Confidentiality itself is generally not a basis for courts making orders at 

a hearing for the suppression or non-publication of evidence in the proceedings. Generally a 

higher test is applied. For example, the provisions in Pt VAA of the Federal Court of Australia Act 

1976 on suppression and non-publication orders give the Federal Court power to make those 

orders on specified grounds, including that the order is necessary: 

• to prevent prejudice to the proper administration of justice 

• to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation 

to national or international security. 

There are examples of courts making suppression or non-publication orders concerning 

sensitive commercial information where they are satisfied that the order is in the interests of 

the administration of justice. Tests based on the interests of the administration of justice are 

not satisfied simply because information is confidential. 

Confidentiality orders made for the purposes of discovery may hinder but do not prevent a 

party from seeking a variation of the orders to enable some evidential use of the information. 

Harman obligation 

Where a party or other person involved in a proceeding obtains access to information under 

a compulsory court process, they automatically have an obligation not to use or disclose the 

information except for the purposes of that proceeding. This obligation is commonly known 

as the ‘implied undertaking’, although the High Court has clarified that it is more aptly 

described as an ‘obligation of substantive law’ owed by those who gain access to the relevant 

information. 25 For that reason, this article adopts the expression ‘the Harman obligation’, 

based on the leading UK authority, Harman v Secretary of State for the Home Department 

[1983] 1 AC 280. 

The Harman obligation is owed to the court and breach of the obligation is potentially a 

contempt of the court and subject to serious sanctions. 26 In addition to binding parties, and 

their solicitors and barristers, to litigation, the Harman obligation binds to the litigation any 

stranger who comes into possession of the information with knowledge of its provenance 

in legal proceedings. This is so even if the person is not aware of the actual existence of the 

24 See the Law Council of Australia’s Federal Court case management handbook (available on the website of the Federal Court of Australia), 

in particular Part G Redaction in Chapter 7 Discovery of documents; Part F Confidentiality in Chapter 14 Competition law; and Chapter 15 

Appendix A – Example confidentiality regime. Courts often make orders to establish confidentiality regimes where discovery involves 

sensitive commercial information. 

25 Hearne v Street (2008) 235 CLR 125 at [102]–[108]. 

26 Hearne v Street (2008) 235 CLR 125. See also the discussion in AGS Legal Briefing No 75: Implied undertakings in litigation (14 September 

2005) but note that it pre-dates Hearne v Street. 

obligation (ignorance of the law being no excuse). 27 

The Harman obligation does not prevent a party using information obtained from other parties 

as evidence in the proceedings in which the obligation arose. 

The Harman obligation is subject to any statutory power which allows the information to be 

used or disclosed (for example, in an investigation by a regulatory agency with the necessary 

statutory power). 28 The obligation also yields to curial processes in other litigation. 29 For 

example, a person in possession of information subject to the Harman obligation arising in 

one proceeding can be compelled to disclose that information in another proceeding by a 

discovery order or a subpoena. 30 

The Harman obligation ordinarily subsists until the information is received into evidence 31 

or is referred to in ‘open court’ in such a way as to disclose its contents. 32 It is also possible to 

seek release from the Harman obligation so as to use the information for purposes extraneous 

to the proceeding in which the obligation arose. An application for such a release is ordinarily 

made to the court in the proceedings in which the obligation arose. 

Parliamentary privilege 

The term ‘parliamentary privilege’ refers to the special rights and powers of individual houses of 

a parliament and to the various protections given to participants in parliamentary proceedings, 

including members of parliament. Australian federal laws on the subject of parliamentary 

privilege are set out in the Parliamentary Privileges Act 1987. Section 16(3) provides that: 

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, 

questions asked or statements, submissions or comments made, concerning proceedings in 

Parliament, by way of, or for the purpose of: 

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

those proceedings in Parliament; 

(b) 

(c) 

otherwise questioning or establishing the credibility, motive, intention or good faith of any 

person; or 

drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything 

forming part of those proceedings in Parliament. 

Parliamentary privilege restricts the use of evidence concerning proceedings in Parliament 

in courts and other tribunals. Section 16(2) of the Parliamentary Privileges Act 1987 sets out a 

broad definition of proceedings in Parliament. 

The way in which the privilege applies can vary according to the type of court order – for 

example, in some cases (like a subpoena) it can be enough to disclose the information between 

the parties with clear warnings against its use in the proceeding; and in others (like discovery) 

the inclusion of the parliamentary information in an affidavit may itself be a prohibited 

evidentiary use. 33 

27 Hearne v Street (2008) 235 CLR 125 at [109]–[112]. 

28 ASC v Ampolex Ltd (1995) 38 NSWLR 504. 

29 Esso Australia Resources v Plowman (1995) 183 CLR 10 at 33. 

30 Boral Resources (Vic) Pty Ltd v CFMEU [2015] VSC 352 at [13]–[21] and cases cited therein. 

31 Hearne v Street (2008) 235 CLR 125 at [96]. 

32 See, for example, r 20.03 of the Federal Court Rules 2011. 

33 See the discussion in AGS Legal Briefing No 95: Parliamentary privilege (26 June 2012). 

32 33

Australian government solicitor ISSUE 1: 2016 

Protecting confidential information before 

courts and tribunals 

Irene Sekler 

Senior Executive Lawyer, AGS Dispute Resolution 

T 02 6253 7155 


Information protected from disclosure on the basis that its 

release would be prejudicial to the public interest 

Courts recognise that there are a number of well-established classes or categories of 

information the disclosure of which may be prejudicial to the public interest. These include 

certain subsets of information pertaining to: 

• the national security and defence of Australia 

• entry into treaties and the conduct or carriage of international relations 

• the identity of police informers or human sources 

• law enforcement, defence and intelligence methodologies, capabilities and operations 

• information submitted to or considered by Cabinet 

• in some circumstances, information confidentially acquired by agencies to enable them to 

perform public functions or duties. 

The classes of information for which protection can be sought are not closed. The touchstone 

for both new and well-recognised categories is whether there could be harm to the public 

interest if the information is disclosed. 

• A public interest immunity claim. Public interest immunity is a common law principle which 

allows a court or tribunal to exercise its discretion to exclude information from evidence 

where disclosure of that information would be contrary to the public interest. Public 

interest immunity applies to pre-trial disclosures, including discovery, interrogatories and 

subpoenas, as well as to material sought to be adduced into evidence. It is also available for 

administrative processes, such as the execution of warrants and coercive powers. 

• An application to have evidence excluded under s 130 of the Evidence Act 1995 (Cth) or 

similar provisions in other Acts. In proceedings to which the Evidence Act applies, s 130 

gives a court power to make a direction that information relating to ‘matters of state’ not 

be adduced as evidence. This direction may be made if the public interest in preserving the 

confidentiality of the information outweighs the public interest in admitting it into evidence. 

Similar sorts of provisions can be found in other laws or rules of court. 

• Implementing a protective order regime. The court or tribunal may be able to implement 

a protective order regime that allows for limited disclosure of the sensitive information 

while protecting the public interest. The kinds of orders that may be sought include orders 

concerning non-publication of evidence or other material, orders closing the court or tribunal 

while evidence is given or submissions are made, orders concerning the use of pseudonyms 

and ciphers, and orders concerning the screening of witnesses. The exact capacity of the 

court or tribunal to make the orders and the test for making such orders varies depending 

on the jurisdiction and the empowering legislation, but the broad underlying principle is 

generally whether the orders are necessary to secure the proper administration of justice. 

• Invoking the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). 

The Act establishes an important and useful framework for protecting national security 

information in court proceedings. National security is defined, in s 8, to mean Australia’s 

‘defence, security, international relations or law enforcement interests’. Section 10 

defines ‘international relations’ as ‘political, military and economic relations with foreign 

governments and international organisations’. 

Mechanisms that can be used to protect confidential 

information 

In the course of litigation, situations may arise where confidential government information 

could be introduced into evidence. However, release of that information might be prejudicial 

to the public interest. There are a number of mechanisms to prevent the public release of that 

type of information before a court or tribunal. 

Depending on the court or tribunal and on the information for which protection is sought, the 

following mechanisms may be considered. The facts of the situation will determine which is 

most appropriate in the circumstances. 

34 35



‘Top secret’ – the provisions keeping 

Commonwealth information confidential 

There are hundreds of secrecy provisions contained in Commonwealth legislation. 1 

These provisions typically prohibit people who obtain information in the course of 

working for the Commonwealth from disclosing that information, except in 

circumstances where an exception or a defence applies. A large number of secrecy 

provisions have criminal penalties attached. 

not itself create a duty not to disclose information. It only applies where a person otherwise 

has a duty not to disclose information. This duty must therefore be found elsewhere, such as 

in a specific secrecy provision or reg 2.1 of the PS Regs. 

Regulation 2.1 of the PS Regs is another provision of a general nature that applies to all 

Australian Public Service (APS) employees. It prohibits an APS employee from disclosing 

information they obtained or generated in connection with their employment if: 

• it is reasonably foreseeable that the disclosure could be prejudicial to the effective working 

of government, including the formulation or implementation of policies or programs 

(reg 2.1(3)), or 

• the information was, or is to be, communicated in confidence within the Government, or was 

received in confidence by the Government from a person or persons outside the Government 

(reg 2.1(4)). 

However, reg 2.1(5) contains a number of exceptions to these prohibitions. For example, 

regs 2.1(3) and 2.1(4) do not prevent a disclosure of information by an APS employee if the: 

a) information is disclosed in the course of the APS employee’s duties 

b) information is disclosed in accordance with an authorisation given by an Agency Head 

c) disclosure is otherwise authorised by law, or 

d) information is already in the public domain as the result of a lawful disclosure. 

Specific secrecy provisions 

As noted above, there are a range of specific secrecy provisions that apply to impose 

confidentiality requirements on particular people or to particular categories of 

Commonwealth information. 

Leo Hardiman 

National Group Leader 

Office of General Counsel 

T 02 6253 7074 

Tara McNeilly 

Senior General Counsel 

T 02 6253 7374 

Olivia Abbott 

A/g Senior General Counsel 

T 02 6253 7023 

Some specific secrecy provisions prevent the disclosure of any information that a particular 

category of people (for example, Australian Federal Police employees) obtain while working 

for the Commonwealth. 3 

There are secrecy provisions of a general nature (for example, provisions that apply to govern 

the disclosure of information by all Commonwealth employees), as well as specific provisions 

that apply to particular people or particular categories of information. The types and features of 

secrecy provisions are discussed in further detail below. 

The obligations imposed by secrecy provisions apply in addition to any privacy obligations 

arising under the Privacy Act 1988. The interaction of secrecy provisions and the Privacy Act is 

also discussed briefly below. 

General secrecy provisions 

Two key provisions of a general nature that apply to Commonwealth employees are contained 

in s 70 of the Crimes Act 1914 and reg 2.1 of the Public Service Regulations 1999 (the PS Regs). 2 

Section 70(1) of the Crimes Act says: 

A person who, being a Commonwealth officer, publishes or communicates, except to some person to 

whom he or she is authorized to publish or communicate it, any fact or document which comes to 

his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and 

which it is his or her duty not to disclose, commits an offence. 

(Section 70(2) also imposes an equivalent obligation on former Commonwealth officers.) 

If a Commonwealth officer has a duty not to disclose information they obtain in the course of 

doing their job, s 70 makes it an offence to disclose that information. Importantly, s 70 does 

Other provisions protect the confidentiality of particular categories of information. For example, 

Div 355 of Sch 1 to the Taxation Administration Act 1953 (TAA 1953) protects the confidentiality 

of ‘protected information’, being information that was disclosed or obtained under or for the 

purposes of a taxation law, that relates to the affairs of an entity, and that identifies (or is 

reasonably capable of being used to identify) the entity (s 355-30). Further, some provisions 

protect the confidentiality of ‘commercial information’. For example, s 114(1) of the Food 

Standards Australia New Zealand Act 1991 imposes a duty on particular people not to disclose 

any ‘confidential commercial information’ in respect of food. 4 Other provisions, commonly 

contained in law enforcement legislation, protect the confidentiality of information 

relating to an investigation. One example is s 34ZS(1) of the Australian Security Intelligence 

Organisation Act 1979, which makes it an offence to disclose information indicating that a 

warrant has been issued, relating to the content of a warrant, or relating to the questioning 

or detention of a person in connection with a warrant. 

Specific secrecy provisions typically contain exceptions or defences that permit relevant 

information to be disclosed in particular circumstances. One common exception allows 

relevant information to be disclosed in the ‘performance of duties’. This type of exception 

ordinarily permits disclosures that are incidental to the carrying out of ‘the duties of an 

officer’s employment’ (that is, those functions and actions that are authorised as part of his 

or her employment). 5 Although it will necessarily depend on the particular statutory context, 

disclosures may be permitted under a ‘performance of duties’ type exception even if they are 

not specifically contemplated by the relevant legislation. For example, in some cases an officer 

1 In its 2009 report, Secrecy laws and open government in Australia, the Australian Law Reform Commission identified 506 secrecy provisions 

contained in 176 Commonwealth laws (see 104). 

2 Other examples are s 79 of the Crimes Act, which applies in relation to ‘official secrets’, and s 13(6) of the Public Service Act 1999, which 

says that an APS employee must ‘maintain appropriate confidentiality about dealings that the employee has with any Minister or 

Minister’s member of staff’. 

3 See s 60A of the Australian Federal Police Act 1979. 

4 ‘Confidential commercial information’ in relation to food is defined in s 4 of the Act to mean a trade secret relating to food, or any other 

information relating to food that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished 

if the information were disclosed. 

5 See Canadian Pacific Tobacco Ltd v Stapleton (1952) 86 CLR 1 and Herscu v The Queen (1991) 173 CLR 276. 

36 37


ISSUE 1: 2016 

may be able to respond to a statutory information-gathering notice in the performance of his 

or her duties. 

There are a range of other defences and exceptions contained in specific secrecy provisions. 

Importantly, if information is about an individual, a disclosure of that information may be 

prohibited even if the individual has provided their consent to the disclosure. For example, 

s 355-35 of the TAA 1953 expressly says that consent is not a defence in relation to a disclosure 

of protected information about a taxpayer’s affairs. Other provisions may imply that consent is 

not, of itself, sufficient to permit disclosure. 

Interaction with the Privacy Act 

The Australian Privacy Principles (APPs) contained in Sch 1 to the Privacy Act also contain 

rules that apply to the use and disclosure of ‘personal information’ (that is, information about 

an identified individual or an individual who is reasonably identifiable). 

Under APP 6, if a Commonwealth agency holds personal information about an individual 

that was collected for a particular purpose, it must not use or disclose that information for 

any other purpose except in limited circumstances. Most relevantly for present purposes, the 

information can be used or disclosed for another purpose where the ‘use or disclosure of the 

information is required or authorised by or under an Australian law or a court/tribunal order’. 

Where a secrecy provision clearly and specifically permits the disclosure of particular 

information, that disclosure will generally be ‘authorised by law’ and will be permitted 

under APP 6. 

AGS wins 2016 

Defence Reserve 

Employer Support 

Awards 

On Thursday 28 July 2016 at the Anzac 

Hall of the Australian War Memorial, AGS 

was announced as winner in the hotly 

contested Government category (with 

41 nominations from 17 agencies) of the 

Defence Reserves Support Council (ACT 

and SE NSW) 2016 Employer Support 

Awards. 

Along with the other employers, AGS 

was also recognised with a Certificate of 

Recognition as a ‘Supportive employer’. The 

citation reads: ‘Presented to the Australian 

Government Solicitor in recognition of 

your continued support to the Australian 

Defence Reserves. Reservists are an essential 

part of our Defence Force. They rely on the 

support of the community at large and 

their employers in particular, to succeed 

in their role. This certificate is issued in 

recognition of your support for your 

Reservist employees.’ 

‘On behalf of AGS, thank you to 

the Council for this Award. AGS is very 

pleased and proud to be able to support 

our Defence Reservist, Captain Graham 

Bannerman,’ said Louise Vardanega, the 

acting Australian Government Solicitor, as 

she accepted the award. ‘Graham is a great 

example of an employee who makes a 

valuable contribution, not only as a lawyer 

at AGS working in the public interest, but 

to the wider community through his work 

as a Reservist.’ 

‘I could not ask for a more committed 

and supportive employer,’ Graham said. 

Supporting and encouraging employees 

who are members of the Australian 

Defence Reserves is important to the 

Attorney-General’s Department. With 

employer support behind them, reservists 

make a significant contribution to the 

capability of the Australian Defence Force. 

In this way, we as employers directly 

contribute to the defence and protection 

of Australia and further our national 

interests. 

Last AGS annual 

report wins an 

ARA Bronze Award 

AGS’s final annual report, for the year 

2014–15, won a Bronze Award in the 2016 

Australasian Reporting Awards (ARA) 

presented in Sydney on 8 June. The awards 

are open to all organisations that produce 

an annual report, whether commercial, 

not-for-profit or government. 

‘This award is terrific recognition of the 

combined skills and talent of our annual 

reporting team,’ said Liz Lajos, National 

Manager AGS Client Services. 

AGS’s annual report was prepared by 

Karen Leary with case studies written by 

Sam Miley and Diana Icasate, designed 

and produced by designers Mandy Orr and 

Julie Hamilton, cover artist Tiff Brown, web 

publisher James Gergely and coordinated 

by David Whitbread, all in AGS Client 

Services. The same team will be part 

of the broader team working on the 

Attorney-General’s Department annual 

report this year. 

ARA was started by a group of leading 

businesspeople in 1950 to improve 

the standards of financial reporting 

in Australia. It is an independent notfor-profit 

organisation supported by 

volunteer professionals from the business 

community and professional bodies 

AGS 

channel launched 

AGS news 

concerned about the quality of financial 

and business reporting. 

The Bronze Award means our report 

provided satisfactory coverage of most of 

the demanding ARA criteria and presented 

high-quality disclosures in major areas. 

As the ARA states: ‘Techniques of 

good reporting evolve over time but 

the fundamentals remain constant. 

Good reporting requires an open willing 

attitude, attention to detail and accuracy, 

a sensitivity and responsiveness to 

stakeholders, a willingness to put in the 

effort to communicate effectively and a 

commitment to achieving and improving 

upon standards.’ 

On 18 February 2016, AGS 

launched its YouTube 

channel with a group of 

videos featuring lawyers 

talking about the hidden 

costs of leasing, managing disclosures 

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

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

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

at our recent Freedom of Information and Privacy Forum. 

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

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

new publications and other updates. 

38 39


> 

Leo Hardiman 

Deputy General Counsel and 



Leo has more than 25 years of 

experience in government legal 

work. A specialist in constitutional 

law, statutory interpretation, 

Commonwealth financial and 

taxation law, and the machinery 

of government, he has advised on 

numerous significant legislative 

schemes, including the National 

Disability Insurance Scheme. His 

particular expertise in tax law 

led him to be outposted to the 

Australian Taxation Office as 

leader of its legal services group 

for 2 years. 


40 

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

adviser on constitutional law, statutory interpretation, legislative 

development, drafting, reform and implementation and represents the 

Commonwealth in constitutional litigation. 

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

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

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

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

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

statutory interpretation, the development, implementation and administration of legislation 

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

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

constitutional litigation and coordinating the conduct of other cases involving constitutional 

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

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

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

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

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

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

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

Michael O’Rourke, Counsel, Canberra 

‘ When I worked in an agency, we 

often sought advice from different 

legal service providers, including 

AGS. I particularly enjoyed working 

with AGS lawyers. I found them very 

easy to work with. Their knowledge 

of the law and of the workings of 

government was impressive. This 

seemed like an excellent place 

to work. 

Learning about what goes on behind 

the scenes in government – for 

>Brendan 

example, how policy is developed and 

Watts, Counsel, Canberra 

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

parliamentary and Cabinet processes constitutional law and public law 

Emma D’Arcy, Counsel, Canberra 

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

‘ AGS offered a great opportunity to 

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

work in public law. 

work with and have a high degree of 

The most satisfying aspect of my 

legal expertise, and there’s a lot I still 

I’ve had the opportunity to work 

work is interacting with clients 

have to learn from them. 

closely with the policy team and the 

and assisting them to achieve the 

Our clients are experts in their areas 

Office of Parliamentary Counsel on 

Commonwealth’s policy objectives. 

of law or public policy, and are easy 

a legislative reform project that will 

and enjoyable to work with.’ 

One of the best things about OGC is 

make a positive difference to people’s 

that you’re continually learning.’ 

lives. 

Working with my AGS and 

in-house colleagues on challenging 

and interesting matters is the most 

rewarding part of my job.’ 

Sam Arnold, Counsel, Canberra 

‘ I work with a lot of old and 

complicated statutes, so probably 

the most satisfaction I get is when 

I’m able to work out exactly what a 

problematic provision means. 

It’s kind of like solving a really difficult 

word puzzle. 

We can’t always give definitive 

answers on ambiguous legislation 

so it’s particularly satisfying when 

we can deliver a clear solution to an 

interpretation problem for a client.’ 

> 

> 

41


Matthew Blunn 

National Group Leader AGS Dispute 

Resolution / currently acting AGS 

Chief Operating Officer 

Matthew has a diverse background in 

litigation, with a strong emphasis on 

competition law. He has conducted 

a range of significant trade practices 

matters, including litigation for the 

ACCC (on matters involving cartel 

conduct, misleading and deceptive 

conduct, and mergers). He has advised 

the Commonwealth on competition 

issues that affect the delivery of 

health services reform and also the 

rollout of the NBN. Matthew has also 

acted in significant Administrative 

Decision (Judicial Review) Act 1977 

matters in which the decisions being 

reviewed concern the application of 

competition law and policy. 


AGS Dispute Resolution specialises in resolving and managing 

disputes – through alternative dispute resolution (including 

mediation, arbitration and conciliation) and litigation. We 

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

to the largest and most sensitive litigation matters the 

Commonwealth is involved in. 

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

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

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

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

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

settlement conferences and mediations. 

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

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

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

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

‘ 

I worked as an administrative 

lawyer in a private firm, but 

I always knew that I wanted 

to work at AGS. AGS had 

all the best and most interesting 

administrative law cases and I was 

always impressed by the quality of 

AGS lawyers. 

Appearing as solicitor-advocate 

is always a highlight. I think it is the 

most challenging part of my role 

as an administrative and dispute 

resolution lawyer, but it is definitely 

the most rewarding. Working on 

high-profile cases is also a highlight 

because you know you are doing 

something which is in the public 

interest. 

AGS has a truly collegiate culture. 

People here are enthusiastic about 

bringing the best out of every AGS 

lawyer and working with clients in 

the public interest. 

Lawyers here genuinely love what 

they do and the people they 

work with, so it’s always an 

engaging place to be. 

Ashlee Briffa 

Senior Lawyer, Melbourne 

‘ 

‘ 

The nature of dispute 

resolution work is very 

exciting, and the chance 

to work on such fascinating 

matters is what makes AGS such a 

unique and fantastic place. 

My Dispute Resolution 

colleagues care very deeply for 

their clients and getting the 

right outcome for them. 

lizzy McCallum 

Lawyer, Canberra 

‘ 

‘ 

ISSUE 1: 2016 

My most interesting 

matter to date was an 

urgent application in the 

Fair Work Commission to 

suspend proposed industrial action 

in Australia’s airports. I had the 

opportunity to work with some great 

lawyers. Helping them bring the case 

together in a very tight timeframe 

was a terrific learning experience. 

As a junior lawyer at AGS I have 

had some great opportunities. Within 

a few months of being admitted, I 

regularly communicated with clients 

and opposing parties, drafted advices 

and court documents, and 

appeared in the Federal Court. 

David Ireland 

Lawyer, Perth 

‘ 

‘ 

‘ 

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

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

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

are complex. 

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

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

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

Jane Lye 

Senior Executive Lawyer, Brisbane 

42 43


ISSUE 1: 2016 

Adrian Snooks 

Deputy Chief General Counsel and 



Adrian is a highly experienced 

adviser on strategic procurement, 

intellectual property and technology 

projects. He has negotiated the 

$1.5 trillion Joint Strike Fighter 

memorandum of understanding, 

the Australian Government’s 

International Communications 

Network, the Emergency Alert 

telecommunications warning system, 

the development of the National 

Broadband Network and the $100 

million Passport Redevelopment 

Project for DFAT. He was chief legal 

adviser to the Commonwealth 

Heads of Government Meeting in 

Perth in 2011 and head of the AGS 

team for the G20 meetings in 2014. 

An expert in the area of intellectual 

property and technology law, Adrian 

advises clients on social media 

engagement, Creative Commons, 

open-source software licensing and 

cloud computing. He was the lead 

author of the Australian Government 

Information Management Office’s 

Better Practice Guide on legal issues in 

cloud computing. 

44 

> 


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

taxation, information and communication technology projects, 

grants and funding, consumer and competition issues, 

intellectual property, media and communications, environment 

and resources, State/Territory and intergovernmental 

agreements, infrastructure projects, construction, property and 

leasing, insurance, banking and finance, procurement, tendering 

and contracting, probity and risk management. 

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

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

to deliver an integrated legal service on commercial projects. 

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

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

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

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

‘ ‘ 

and collaborative. 

‘ 

‘ 

Kelly Taylor 

‘ 

Senior Lawyer, Melbourne 

My most interesting matter to 

date was the Commonwealth’s 

disposal of the former Point Nepean 

quarantine station site to the State of 

Victoria. The unique history and use of 

this 90-hectare site presented some 

interesting legal and policy challenges 

to work through in getting ready for 

the transfer. 

I would describe the 

atmosphere at AGS as strong, 

supportive, astute, innovative 

Lee-Sai Choo Senior Executive Lawyer, Perth 

Kathryn Heyroth 

Senior Legal Assistant, Canberra 

‘ 

‘ 

How would I describe my 

AGS Commercial colleagues? 

Friendly, supportive and 

always happy to share a joke. 

I was constantly told what a 

great place it was to work and 

I haven’t been disappointed. 

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

I’ve always felt that. 

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

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

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

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

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

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

the particular matter and into the future. 

Alex Readford 

Senior Lawyer, Canberra 

‘ 

The most surprising thing I’ve 

learnt as a lawyer is to listen. 

AGS has taught me it’s critical to listen 

to, and understand, our clients’ needs. 

To me, this is an AGS lawyer’s most 

important skill. 

My AGS Commercial colleagues are 

approachable and focused on practical 

solutions. They are keen to personally 

know our clients so we can 

develop the type of relationship 

that allows us to jointly deliver 

practical outcomes to their 

issues. 

45


Farewell to 

the Australian 


Solicitor 

Ian Govey AM 

‘ 

Ian took a very 

strong interest 

in the care and 

development of 

AGS people. 

‘ 

On 2 May 2016, the Australian 


Ian Govey AM retired. 

On Ian’s last day in the office, 

Secretary of the Attorney-General’s 

Department (AGD) Chris Moraitis 

PSM outlined the immense impact 

Ian had during his long and illustrious 

career, noting that ‘…with more than 

4 decades of dedicated public service, 

the numbers speak for themselves. 

Ian has served under 9 departmental 

secretaries, 16 Attorneys-General and 

10 Prime Ministers.’ 

Ian’s career journey began in 1974. 

After graduating from the University 

of Adelaide, he had every intention of 

pursuing a career in private practice, 

until a chance conversation with a 

friend saw him shift his attention 

to the public sector. He relocated to 

Canberra, and took up a graduate 

position at AGD. 

During the early half of his career, 

Ian was head of AGD’s Corporations 

Law Simplification Taskforce; 

Counsellor (Legal) in the Australian 

Embassy in Washington DC; and First 

Assistant Secretary, AGD Business 

Affairs Division. 

He went on to be the inaugural 

First Assistant Secretary, Office of 

Legal Services Coordination, then 

Deputy Secretary, Civil Justice and 

Legal Services where he covered 

a broad remit – Commonwealth 

legal services, Federal courts and 

tribunals, alternative dispute 

resolution, international law, legal 

assistance, human rights, family law, 

administrative law, copyright, personal 

property securities and native title. 

In 2010, he became Chief Executive 

Officer of the Australian Government 

Solicitor’s office – a role that was 

renamed ‘the Australian Government 

Solicitor’ last year, and to which he 

was appointed. 

In 2015, Ian was interviewed for 

a profile on AGD’s intranet. He was 

asked about his career to date, and 

had the following to say about his 

time at AGS: 

‘Being the CEO of AGS has certainly 

been a highlight – running an 

organisation that performs such a 

central role for the Government. AGS 

does such terrific work and has some 

interesting challenges which are, of 

course, essential for a good job. 

Working for government can be 

very rewarding. We ultimately work in 

the public interest, and are not driven 

by the profit motive. I think that at 

the end of the day this is what people 

find motivating about working for 

government. The work is intrinsically 

interesting, particularly with the 

interaction with government and the 

way in which polices are developed and 

law reform is undertaken. 

There are very few government 

policies and programs that are 

implemented without some form 

of legal advice from AGS. We have 

had close involvement, for example, 

in water reform, the carbon tax, 

gambling reform, energy market 

reform, migration law and asylum 

seekers and live animal exports. Then 

we are involved in the constitutional 

challenges, such as the Williams case 

on the power of the Commonwealth to 

spend money and the plain packaging 

of tobacco case. We are also Solicitor 

Assisting the Royal Commission into 

Institutional Responses to Child Sexual 

Abuse.’ 

Aside from his work for the 

Commonwealth, Ian also made a 

broader contribution to federal law 

and legal administration through his 

membership of several law-related 

organisations. He continues to be a 

member of the International Institute 

for the Unification of Private Law, the 

Australian Centre for International 

Commercial Arbitration and the 

Australasian Legal Information 

Institute. 

His contribution to public 

service throughout his career was 

aptly recognised by the Award of 

Member of the Order of Australia he 

received last year. His citation reads: 

‘for his significant service to public 

administration and to the law, as a 

leader in the provision of government 

legal services and to professional 

organisations’. 

Ian took a very strong interest in 

the care and development of AGS 

people. He was a regular visitor to 

AGS’s regional offices, recognising 

staff for their contributions to client 

care and their service to AGS. He 

encouraged investment in the lawyer 

development program, to attract and 

retain the best graduates and junior 

lawyers for the future. 

Ian also put great effort and 

enthusiasm into building AGS’s 

networks with clients and the legal 

profession throughout Australia. 

He emphasised our role in support 

of the Attorney-General and the 

Government of the day – that AGS 

was not just ‘another legal provider’. 

We thank Ian for his many 

contributions to AGS, AGD, the 

Commonwealth and the broader 

community. We wish him all the 

best in retirement, and eagerly look 

forward to seeing where he chooses 

to focus his impressive energy and 

intellect in the years to come. 

46 

47


AGS 

WORKFORCE 

AND MARKET 

UPDATE 

Our people 

AGS employs 646 people; 309 are 

located in Canberra and the rest 

are based in our offices in State and 

Territory capitals across Australia. 

A flexible and people-focused work 

environment is a key attraction for 

AGS staff. We also greatly appreciate 

the privileged role we occupy – being 

involved in the interesting and 

rewarding legal work on offer, while 

contributing to the public interest. 

Our values 

In addition to the APS Code of 

Conduct and APS values, AGS adheres 

to a set of organisational values which 

shape the way we approach our work, 

our clients, and our AGS colleagues. 

Integrity – honest and impartial 

dealings with others, treat all people 

with respect 

Professionalism – excellence in all 

aspects of our work 

Commitment to the public good – 

assist clients to achieve the best results 

for the Australian community and the 


Collegiality – work collaboratively as 

one national team. 

The market 

According to the Office of Legal 

Services Coordination (OLSC) Legal 

Services Expenditure Report 2014–15, 

AGS remains a strong and respected 

legal services provider, with a reported 

38% share of Commonwealth legal 

services expenditure (professional 

fees) in 2014–15. Our legal expertise 

and value for money are recognised 

by our clients. We continue to be the 

legal service supplier most often relied 

upon by Commonwealth Government 

agencies. 

46% 

16% 

AGS 

Other top 10 firms 

Remaining providers 

38% 

Source: OLSC Legal Services Expenditure 

Report 2014–15 

How our clients rate us 

AGS runs a regular nation-wide 

independent survey of close to 1,500 

Commonwealth clients. The survey 

focuses on key performance attributes 

ranging from our legal expertise, 

depth of team and understanding 

of our clients’ business to the quality 

of our relationship management, 

responsiveness and ease of doing 

business. In this survey we also ask 

clients to rate and comment on our 

commerciality, value for money and 

other aspects of the financial and 

administrative management of their 

matters. 

In 2015, the AGS Client Survey 

results showed an overall rating of 

7.95 out of 10 for client satisfaction, 

reflecting the continuation of an 

upward trend seen in recent years. We 

also learned that 96% of our clients 

are satisfied with AGS’s performance. 

Most notable was a 48% increase 

in the proportion of our clients 

rating AGS’s overall performance as 

‘excellent’ (from 29% to 43% of all 

respondents). 

We rated well on many key 

attributes, including legal expertise, 

quality of relationship, ease of doing 

business with, responsiveness and 

understanding of clients’ business. 

Our average rating for each of these 

attributes was more than 8 out of 10. 

Cost management is a critical 

aspect of service delivery – not just 

in legal services but right across the 

spectrum of professional services. 

AGS’s performance in this area 

consistently rates close to 7 out of 10 

in client surveys, and we are striving to 

achieve even better results. Listening 

and responding to our clients is an 

important facet of our approach to 

service. We welcome feedback about 

how we can support our clients, 

including in managing costs. 

Did you know? 

56% 

of our full-time employees 

are lawyers, and 44% are 

legal support and corporate 

staff 

69% 60% 48% 

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

lawyers are female 

20% 

of the AGS workforce is 

part time, and 91% of our 

part-timers are women 

15 

In 2016 

law graduates 

commenced the AGS 

Graduate Program 

48 49


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Issue 1: 2016 

ISSN 2206-7388 (Print) 

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