Government Solicitor

Australian government solicitor ISSUE 1: 2016
Protecting confidential information before
courts and tribunals
Irene Sekler
Senior Executive Lawyer, AGS Dispute Resolution
T 02 6253 7155
Confidentiality
Information protected from disclosure on the basis that its
release would be prejudicial to the public interest
Courts recognise that there are a number of well-established classes or categories of
information the disclosure of which may be prejudicial to the public interest. These include
certain subsets of information pertaining to:
• the national security and defence of Australia
• entry into treaties and the conduct or carriage of international relations
• the identity of police informers or human sources
• law enforcement, defence and intelligence methodologies, capabilities and operations
• information submitted to or considered by Cabinet
• in some circumstances, information confidentially acquired by agencies to enable them to
perform public functions or duties.
The classes of information for which protection can be sought are not closed. The touchstone
for both new and well-recognised categories is whether there could be harm to the public
interest if the information is disclosed.
• A public interest immunity claim. Public interest immunity is a common law principle which
allows a court or tribunal to exercise its discretion to exclude information from evidence
where disclosure of that information would be contrary to the public interest. Public
interest immunity applies to pre-trial disclosures, including discovery, interrogatories and
subpoenas, as well as to material sought to be adduced into evidence. It is also available for
administrative processes, such as the execution of warrants and coercive powers.
• An application to have evidence excluded under s 130 of the Evidence Act 1995 (Cth) or
similar provisions in other Acts. In proceedings to which the Evidence Act applies, s 130
gives a court power to make a direction that information relating to ‘matters of state’ not
be adduced as evidence. This direction may be made if the public interest in preserving the
confidentiality of the information outweighs the public interest in admitting it into evidence.
Similar sorts of provisions can be found in other laws or rules of court.
• Implementing a protective order regime. The court or tribunal may be able to implement
a protective order regime that allows for limited disclosure of the sensitive information
while protecting the public interest. The kinds of orders that may be sought include orders
concerning non-publication of evidence or other material, orders closing the court or tribunal
while evidence is given or submissions are made, orders concerning the use of pseudonyms
and ciphers, and orders concerning the screening of witnesses. The exact capacity of the
court or tribunal to make the orders and the test for making such orders varies depending
on the jurisdiction and the empowering legislation, but the broad underlying principle is
generally whether the orders are necessary to secure the proper administration of justice.
• Invoking the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
The Act establishes an important and useful framework for protecting national security
information in court proceedings. National security is defined, in s 8, to mean Australia’s
‘defence, security, international relations or law enforcement interests’. Section 10
defines ‘international relations’ as ‘political, military and economic relations with foreign
governments and international organisations’.
Mechanisms that can be used to protect confidential
information
In the course of litigation, situations may arise where confidential government information
could be introduced into evidence. However, release of that information might be prejudicial
to the public interest. There are a number of mechanisms to prevent the public release of that
type of information before a court or tribunal.
Depending on the court or tribunal and on the information for which protection is sought, the
following mechanisms may be considered. The facts of the situation will determine which is
most appropriate in the circumstances.
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