Government Solicitor

Australian government solicitor
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