On Friday I wrote to the Legal Services Board of Victoria to make a report alleging professional misconduct against Bill Shorten's lawyer Val Gostencnik.
Today I can give you some further and better particulars that I think ought to come to the attention of the Australian Federal Police and the Royal Commission into Union Corruption.
At the foot of this commentary is a document containing source material.
The numbers here refer to the corresponding numbers in that document.
Gostencnik (G) may have breached the Commonwealth Crimes Act when he is alleged to have used the information in the FWA report to support the action to appoint an Administrator.
1. G was a partner in the Legal Firm engaged by FWA to assist in the investigation.
As such he (and his partners) performed services for the Australian Government and are a “Commonwealth officer” for the purposes of S 3 of the Crimes Act “(1).
2. Section 70 prohibits the use of information coming into his possession as a Commonwealth Officer if he has a duty not to disclose it.(1)
3. In relation to information that was compulsorily acquired as part of the FWA investigation the case of Johns v ASIC would restrict its uses to the purposes set out under the statute authorising its collection (3).
4. The purposes for which these powers could be exercised are set out in (2).
They do not include the appointment of an administrator.
5. In relation to information supplied voluntarily a duty may exist under the Equitable principle of confidentiality. This principle is demonstrated in the Fairfax case (Spycatcher) I have referred to previously.
6. The amendments to allow the GM of FWA a discretion to disclose information were introduced after G commenced the action to appoint an administrator (2) and (4).
7. Some extracts from a useful report of the ALRC have been included (5).
The decision in Hearne v Street covers similar ideas in relation to the restraints on the use of information but it is not relevant to the actions of G here.
It only covers information discovered or provided to the other party in a Court action.
This doesn’t mean your complaint to the Legal Services Board in Victoria is not valid just that its basis should be in the breach of either an Equitable duty not to disclose information voluntarily provided in confidence or in a duty imposed by the statute under which any information was acquired by compulsion. [MPS note - I say Mr Gostencnik acted unprofessionally in taking on the Shorten brief to ask the court to appoint an administrator while he was also acting for FWA and had its confidential information in his knowledge. MPS]
A further complaint to the Federal Police may be justified.
Here now is the further source material StephenJ refers to.
1. Crimes Act
CRIMES ACT 1914 - SECT 3
Commonwealth officer" means a person holding office under, or employed by, the Commonwealth, and includes:
(a) a person appointed or engaged under the Public Service Act 1999 ;
(b) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979 ); and
(c) for the purposes of section 70, a person who, although not holding office under, or employed by, the Commonwealth, a Territory or a public authority under the Commonwealth, performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth; and
(d) for the purposes of section 70:
(ii) a person who performs services for or on behalf of the Australian Postal Corporation; and
CRIMES ACT 1914 - SECT 70
Disclosure of information by Commonwealth officers
(1) A person who, being a Commonwealthofficer, 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, shall be guilty of an offence
2. Fair Work Provisions
FAIR WORK (REGISTERED ORGANISATIONS) ACT 2009 - SECT 335C
Disclosure of information acquired during an investigation
Information to which this section applies
Disclosure that is necessary or appropriate, or likely to assist administration or enforcement
(a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of the General Manager; or
(b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory
FAIR WORK (REGISTERED ORGANISATIONS) ACT 2009 - SECT 330
General Manager may make inquiries
(1) The General Manager may make inquiries as to whether the following are being complied with:
(a) Part 3 of Chapter 8;
(b) the reporting guidelines made under that Part;
(c) regulations made for the purposes of that Part;
(d) rules of a reporting unit relating to its finances or financial administration.
(3) The person making the inquiries may take such action as he or she considers necessary for the purposes of making the inquiries. However, he or she cannot compel a person to assist with the inquiries under this section.
FAIR WORK (REGISTERED ORGANISATIONS) ACT 2009 - SECT 331
General Manager may conduct investigations
(a) a provision of Part 3 of Chapter 8 has been contravened; or
(b) the reporting guidelines made under that Part have been contravened; or
(c) a regulation made for the purposes of that Part has been contravened; or
(d) a rule of a reporting unit relating to its finances or financial administration has been contravened.
(2) If the General Manager is satisfied that there are reasonable grounds for doing so, the General Manager may conduct an investigation as to whether a civil penalty provision (see section 305) has been contravened.
(4) Where, having regard to matters that have been brought to notice in the course of, or because of, an investigation under subsection (1) or (2), the General Manager forms the opinion that there are grounds for investigating the finances or financial administration of the reporting unit, the General Manager may make the further investigation.
(5) An investigation may, but does not have to, follow inquiries under section 330.
FAIR WORK (REGISTERED ORGANISATIONS) ACT 2009 - SECT 335
Conduct of investigations--general power to require information etc.
(1) This section applies to:
(c) a person who held the position of auditor of the reporting unit during the period that is the subject of the investigation;
if the General Manager has reason to believe that the person:
(d) has information or a document that is relevant to the investigation; or
(e) is capable of giving evidence which the General Manager has reason to believe is relevant to the investigation.
(2) For the purpose of making an investigation, the General Manager may, by written notice, require the person:
(a) to give to the General Manager or a person or body to whom the General Manager has delegated conduct of the investigation, within the period (being a period of not less than 14 days after the notice is given) and in the manner specified in the notice, any information within the knowledge or in the possession of the person; and
(b) to produce or make available to the General Manager or a person or body to whom the General Manager has delegated conduct of the investigation, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, any documents in the custody or under the control of the person, or to which he or she has access; and
(c) to attend before the General Manager or a person or body to whom the General Manager has delegated conduct of the investigation, at a reasonable time (being a time not less than 14 days after the notice is given) and place specified in the notice, to answer questions relating to matters relevant to the investigation, and to produce to the General Manager or the delegate (as the case may be) all records and other documents in the custody or under the control of the person relating to those matters.
(3) A notice requiring a person to attend must state that the person may be accompanied by another person. The other person may be, but does not have to be, a lawyer.
2.1 Explanatory Memorandum
Fair Work (Registered Organisations) 11 House of Representatives
Amendment Bill 2012
33. New subsection 335C(2) provides that the GM may disclose, or authorise the
disclosure of, the information if the GM reasonably believes:
· that it is necessary or appropriate to do so in the course of performing functions, or
exercising powers, of the GM; or
· that the disclosure is likely to assist in the administration or enforcement of a law of
the Commonwealth, a State or a Territory.
34. The powers of the GM to disclose, or to authorise the disclosure of information is
consistent with the powers of the Fair Work Ombudsman to disclose or authorise the
disclosure of information under the FW Act
3. Duty of Confidentiality imposed by Statute
Johns v ASIC (1993) CLR 408
The limitation of s.25(3) authority
14. Information is intangible. Once obtained, it can be disseminated or used without being impaired, though dissemination or use may reduce
its value or the desire of those who do not have it to obtain it.
Once disseminated, it can be disseminated more widely. A person to
whom information is disclosed in response to an exercise of statutory
power is thus in a position to disseminate or to use it in ways which
are alien to the purpose for which the power was conferred. But
when a power to require disclosure of information is conferred for
a particular purpose, the extent of dissemination or use of the
information disclosed must itself be limited by the purpose for which
the power was conferred. In other words, the purpose for which a
power to require disclosure of information is conferred limits the
purpose for which the information disclosed can lawfully be
disseminated or used. In Marcel v. Commissioner of Police ((7)
(1992) Ch 225, at p.234. The Vice-Chancellor's view in this respect
was affirmed on appeal: see (1992) Ch, esp. at pp.261, 262.) Sir
Nicolas Browne-Wilkinson VC said, in reference to a statutory power
conferred on police to seize documents:
"Powers conferred for one purpose cannot lawfully be used
for other purposes without giving rise to an abuse of
power. Hence, in the absence of express provision, the Act
cannot be taken to have authorised the use and disclosure
of seized documents for purposes other than police
And in Morris v. Director of the Serious Fraud Office ((8) (1993) 3
WLR 1, at p.7.), Sir Donald Nicholls VC said in reference to
information acquired by exercise of statutory powers:
"The compulsory powers of investigation exist to facilitate
the discharge by the S.F.O. of its statutory investigative
functions. The powers conferred by section 2 are
exercisable only for the purposes of an investigation under
section 1. When information is obtained in exercise of
those powers the S.F.O. may use the information for those
purposes and purposes reasonably incidental thereto and
such other purposes as may be authorised by statute, but
not otherwise. Compulsory powers are not to be regarded
as encroaching more upon the rights of individuals than is
fairly and reasonably necessary to achieve the purpose for
which the powers were created. That is to be taken as the
intention of Parliament, unless the contrary is clearly
A statute which confers a power to obtain information for a purpose
defines, expressly or impliedly, the purpose for which the information
when obtained can be used or disclosed. The statute imposes on the
person who obtains information in exercise of the power a duty not to
disclose the information obtained except for that purpose. If it were
otherwise, the definition of the particular purpose would impose no
limit on the use or disclosure of the information. The person
obtaining information in exercise of such a statutory power must
therefore treat the information obtained as confidential whether or
not the information is otherwise of a confidential nature. Where
and so far as a duty of non-disclosure or non-use is imposed by the
statute, the duty is closely analogous to a duty imposed by equity
on a person who receives information of a confidential nature in
circumstances importing a duty of confidence.
15. A person who obtains information in exercise of the powers conferred by s.19 of the Act comes under a statutory duty of
confidence with respect to the information thus obtained. It is
therefore important to ascertain the purposes for which such
information can be legitimately used or disclosed. In the first
place, the power conferred by s.19 of the Act to require a person to
appear for examination and to answer questions is conferred for the
purpose of obtaining "information relevant to a matter that (the ASC)
is investigating, or is to investigate, under Division 1" of Pt 3 of
the Act. So the information acquired by conducting a s.19 examination
may be used for the purposes of such an investigation. In addition,
s.127(3) authorizes disclosure of otherwise confidential information
by, inter alia, the members and staff members of the ASC for the
purposes of performing the official functions of the person making
the disclosure. As investigations are but some of the functions of
the ASC (most of which are prescribed by Pt 2 of the Act) the Act
contemplates that information acquired on examinations under s.19 may
be used and disclosed for the purpose of the performance or exercise
of any of the functions of the ASC. Then, certain purposes other than
the performance of the functions of the ASC are approved by sub-ss.(2)
and (4) of s.127. Information obtained in exercise of the powers
conferred by s.19 may therefore be used or disclosed for the purpose
of the performance of any of the functions of the ASC and for any of
the purposes mentioned in sub-ss.(2) and (4) of s.127. But for no
The condition of confidentiality
19. Prima facie, it is the privilege of any person who possesses information to keep the information confidential. That person may
wish not to disclose it at all or may wish to disseminate it or to
authorize its dissemination only for a limited purpose or to a limited
class of persons. In Attorney-General v. Guardian Newspapers
(No.2) ((11)  UKHL 6; (1990) 1 AC 109, at p.214.) - the Spycatcher case -
Bingham LJ said:
" It is a well-settled principle of law that where one
party ('the confidant') acquires confidential information
from or during his service with, or by virtue of his
relationship with, another ('the confider'), in
circumstances importing a duty of confidence, the confidant
is not ordinarily at liberty to divulge that information to
a third party without the consent or against the wishes of
The jurisdictional basis or bases of this principle may not have been
finally determined ((12) See per Lord Goff of Chieveley, ibid., at
p.281.) but there is certainly jurisdiction in equity to grant relief
against actual or threatened abuse of confidential information. In
Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No.2) ((13) (1984)
 HCA 73; 156 CLR 414, at pp.437-438.), Deane J said:
" It is unnecessary, for the purposes of the present
appeal, to attempt to define the precise scope of the
equitable jurisdiction to grant relief against an actual or
threatened abuse of confidential information not involving
any tort or any breach of some express or implied
contractual provision, some wider fiduciary duty or some
copyright or trade mark right. A general equitable
jurisdiction to grant such relief has long been asserted
and should, in my view, now be accepted: see The
Commonwealth v. John Fairfax and Sons Ltd. ((14)  HCA 44; (1980) 147 CLR 39,
at pp.50-52.). Like most heads of exclusive equitable jurisdiction,
its rational basis does not lie in proprietary right. It lies in the
notion of an obligation of conscience arising from the
circumstances in or through which the information was
communicated or obtained."
20. Deane J was speaking of the exclusive jurisdiction of equity to enforce a duty imposed by equity. The jurisdiction to restrain the
repository of a statutory power from using or disclosing information
obtained in exercise of the power cannot rest on the same basis. A
duty not to use or to disclose information obtained in exercise of a
statutory power except for a purpose authorized by the statute is a
duty imposed by statute, not by equity. Yet the equitable remedy of
injunction is available in appropriate cases to enforce a statutory
duty against a public authority ((15) Bradley v. The Commonwealth
 HCA 34; (1973) 128(1973) 128 CLR 557, esp. at pp.575, 581-582; Annetts v. McCann  HCA 57; (1990)
170 CLR 596.). Jurisdiction to grant an injunction, like
jurisdiction to make a declaration ((16) Dyson v. Attorney-General
(1911) 1 KB 410; Balog v. Independent Commission Against Corruption
 HCA 28; (1990) 169(1990) 169 CLR 625.), is well established - albeit the theoretical
foundation of the jurisdiction has not been clearly defined ((17) See
de Smith's Judicial Review of Administrative Action, 4th ed. (1980),
21. The confidentiality of the information contained in the Johns transcripts was thus amenable to protection by injunction in cases
where its use or disclosure was not authorized by statute. But once
the ASC, possessed of statutory authority to disclose the information
to the Royal Commission, gave the transcripts to the Royal Commission,
the confidentiality of the information could be protected by order
against the Royal Commission only by enforcing an "obligation of
conscience arising from the circumstances in or through which the
information was communicated or obtained
Review of the decisions to permit publication
25. Prima facie, the ASC and Ms Megay were obliged by s.127(1) to keep the Johns transcripts confidential except to the extent to which
disclosure was authorized for the purpose of the performance of a
function of the ASC. Prima facie, Mr Johns had a corresponding right
to insist on the maintenance of that confidentiality ((20) See Marcel
v. Commissioner of Police (1992) Ch, at pp.237, 261, 262.). But,
as s.127(4)(b) authorizes disclosure to State agencies, the
confidentiality of the transcripts was vulnerable to destruction by
exercise of that authority. The prima facie obligation imposed on the
ASC and Ms Megay to keep the transcripts confidential affected the
manner in which they could lawfully exercise the discretion under
s.127(4)(b) to lift the condition against use of the transcripts in
public hearings. The exercise of a statutory power or authority may
annihilate or modify an antecedent right or duty ((21) Smorgon v.
Australia and New Zealand Banking Group Ltd.  HCA 53; (1976) 134 CLR 475, esp.
at pp.486-488.), but that is not to say that the antecedent right or
duty is irrelevant to the manner in which the statutory power or
authority is to be exercised.
26. However, it is another question whether the decision to make the transcripts available for use in public hearings ought to have been
made without giving Mr Johns an opportunity to be heard in opposition.
The decisions to allow the use of the transcripts in public hearings
were prejudicial to Mr Johns' interests
27. An exercise of the authority conferred by s.127(4)(b) is apt to affect adversely the interests of an examinee who is prima facie
entitled to have the confidentiality of the transcript of the
examination observed. Accordingly there is an obligation on a person
proposing to exercise that authority to observe the rules of natural
DAWSON J In this matter I agree generally with Brennan J The
facts and relevant legislation are set out in his judgment and I shall
not repeat them. I wish only to add the following comments.
2. It is, I think, apparent that information given by a person in the course of an examination under Pt 3 of the Australian Securities
Commission Act 1989 (Cth) ("the Act") must be treated by the
Australian Securities Commission ("the ASC") as confidential
information. That would probably be the case even apart from specific
statutory provision ((34) See Hearts of Oak Assurance Co. v.
Attorney-General (1931) 2 Ch 370, at pp.392-393; (1932) AC 392, at
pp.397-398; In re Pergamon Press Ltd. (1971) Ch 388, at pp.399-400,
404; Finnane v. Australian Consolidated Press Ltd. (1978) 2 NSWLR
435, at pp.443-445.), but it also flows from the requirement that
the examination take place in private (s.22(1)), the restriction
placed upon the provision of a transcript of the examination to a
person's lawyer (s.25(1)), the use of the transcript when so provided
(s.25(2)) and the conditions which may be imposed when any person is
given a copy of the transcript (s.25(3)). Most significantly it flows
from the express provision in s.127(1) that the ASC shall take all
reasonable measures to protect from unauthorized use or disclosure
information given to it in confidence in or in connection with the
performance of its functions or the exercise of its powers under
relevant legislation. However, the duty of confidence is not
absolute, and statutory authority is given to disclose the information
in circumstances set out in s.127(2), (3) and (4). For present
purposes the relevant provision is s.127(4)(b), which permits
disclosure where the information will, amongst other things, enable or
assist an agency of a State to perform a function or exercise a power.
Clearly, the Victorian Royal Commission to inquire into the affairs of
Tricontinental was such an agency.
3. Whatever view may have been taken by the ASC, I agree with Brennan J that s.127(2), (3) and (4) deals with the purposes for
which information may be disclosed, in contrast with s.25(3) which
deals with the means by which the transcript of an examination may be
disclosed. Relevantly, s.25(3) authorizes the ASC, subject to such
conditions (if any) as it imposes, to give to a person a copy of the
transcript of an examination. Thus, the Act prescribes not only the
confidentiality of the transcript, but the means by which and the
purpose for which the ASC may disclose that transcript without breach
of the duty imposed upon it. There is also a general rule that where
a body has statutory powers to compel the provision of information to
it, it should not disclose the information except for the purposes for
which the powers were conferred ((35) Marcel v. Commissioner of Police
(1992) Ch 225; Morris v. Director of the Serious Fraud Office (1993) 3
WLR 1.). Any other approach in relation to information gleaned
under compulsion would encroach further than necessary upon the right
of the individual to treat as confidential information in his or her
possession. But in this case, the purposes for which disclosure may be
made are specifically set out in the Act. Although in this case the
existence and extent of the duty of confidence resting upon the ASC are
to be found in the Act, the same may not be said of any duty of
confidence on the part of the Royal Commission arising from receipt of
the information imparted to it by the ASC. No doubt where information
is provided on the condition that confidence be maintained, a duty of
confidence might be said to arise from the requirement imposed by s.26
of the Act that the recipient of a copy of a transcript given subject
to conditions shall comply with the conditions. But, that section
apart, it must be equity, rather than the statute, which imposed a duty
of confidence upon the Royal Commission upon the basis that the
information provided to it was confidential and was provided in
circumstances which imported an obligation of confidence ((36) See
Attorney-General v. Guardian Newspapers (No.2)  UKHL 6; (1990) 1 AC 109;
Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No.2)  HCA 73; (1984) 156
CLR 414, at pp.437-438.).
Mc Hugh J
9. Information obtained under s.19 is subject to a statutory obligation of confidence. A statute conferring compulsory powers of
examination is strictly construed. It is construed as authorising
only those actions which are necessary to give effect to the purpose
for which the power is conferred and whatever is reasonably incidental
to that purpose ((97) Morris v. Director of the Serious Fraud Office
(1993) 3 WLR 1, at p.7.). Section 19 defines the purpose for
which persons are made the subject of examination under that section.
It is to obtain information that is relevant to a matter that the ASC
is investigating or is to investigate. An ASC member who obtains
information under s.19 has no power to use the information for any
purpose other than that purpose or such other purposes as the
legislation authorises. Thus, the examiner, upon receiving the
information, becomes subject to an obligation to keep the information
confidential unless it is necessary to use the information for the
purposes of the Act. The terms of s.22 of the Act, which require
the examination to be in private, reinforce the conclusion that
information obtained under s.19 is obtained in confidence
4. Application of Ammendments
Gostencnik received the report and annexures on 3 April, 2012.
On 12 April 2012 Gostencnik commenced to act for the Minister for Employment and Workplace Relations Bill Shorten in Shorten's bid to have an external administrator appointed to run the HSU
Item 18 - Application - disclosure of information acquired during an investigation
38. Item 18 provides that new section 335C of the RO Act, as inserted by the Bill (see
item 15), applies to information acquired on or after the commencement of item 18.
Item 18 - Application - disclosure of information acquired during an investigation
18 Application--disclosure of information acquired during an
Section 335C of the Fair Work (Registered Organisations) Act 2009, as
inserted by this Schedule, applies to information acquired on or after the
commencement of this item
2. Schedule 1,
The day this Act receives the Royal Assent
2. Schedule 1, Part 1
The day this Act receives the Royal Assent.
29 June 2012
5. Australian Law reform Commission
Secrecy Laws and Open Government in Australia  ALRC 112
3.57 Some secrecy provisions expressly refer to a wider range of individuals than Commonwealth employees. This reflects changes to the structure of government and government service provision, and the view that information should be protected at every point in the ‘distribution chain’, including where that information is handled outside the public sector.
3.58 Around 10% of secrecy provisions expressly regulate consultants and others who provide goods or services for or on behalf of the Australian Government. In addition, service providers are often required by agencies to comply with confidentiality undertakings as part of service provision arrangements.
Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), [7.11.2].
 See, eg, Equal Opportunity for Women in the Workplace Act 1999 (Cth) s 32(1).
 See, eg, Customs Administration Act 1985 (Cth) s 16.
 Confidentiality clauses are included in contracts with service providers as a matter of course: Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), 53.
3.91 Section 70 of the Crimes Act is the only provision remaining in pt VI of the Crimes Act. A version of s 70 was included in the original Crimes Act in 1914, and was based on a provision of the Criminal Code Act 1899 (Qld). This original version of s 70 was repealed and replaced in 1960 to extend the prohibition on the unauthorised disclosure of information by Commonwealth officers to include former Commonwealth officers. While minor amendments have been made to s 70 on three occasions since 1960, the substance of the provision has not changed since that time.
3.92 The effect of s 70 is to apply criminal sanctions to the breach of secrecy obligations by public officials. Section 70 provides that:
(1) 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, shall be guilty of an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.
3.93 Many Australian states and territories have similar offences. Crimes legislation in Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory each contain broadly framed offences for the unauthorised disclosure of information by public officials.All but the Northern Territory provision concern information that it is a person’s duty to keep secret or not to disclose. In New South Wales, the Independent Commission Against Corruption Act 1988 (NSW) includes as prohibited ‘corrupt conduct’ the ‘misuse of information or material that [a public official] has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any person’.
3.94 Since 2000, the majority of prosecutions for the breach of secrecy provisions have been brought under s 70 of the Crimes Act, even where specific secrecy offences would have been available. There have been successful prosecutions for breaches of s 70, including of:
- an officer of the Australian Taxation Office—for providing documents containing summaries of taxpayers and tax agents to a private business associate;
- an officer of the Australian Customs Service—for providing reports about security at Sydney Airport to journalists;
- an officer of the Office of Indigenous Policy Coordination—for disclosing information relating to the then draft Declaration on the Rights of Indigenous Peoples to her daughter, and information relating to Commonwealth Indigenous policy to a member of the Mutitjulu community in the Northern Territory; and
- an officer of Centrelink—for disclosing personal details of Centrelink customers to a firm which offered to pay for information leading to the whereabouts of various people.
3.96 Section 70 does not create a duty to keep information secret or confidential. Rather, the source of such a duty must be found elsewhere—most commonly in a specific secrecy provision. In R v Goreng Goreng, for example, the duty was found in reg 2.1(3) of the Public Service Regulations,whichprovides that APS employees must not disclose information 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.
3.97 such as an employee’s common law duty to serve his or her employer with loyalty and fidelity or an equitable duty to protect his or her employer’s confidential information. In addition, the terms and conditions of an employment contract, or the obligation imposed by s 13(10) of theAlthough the issue has not been determined by a court, other sources of the duty may be those considered earlier in this chapter Public Service Act not to use information for personal benefit, may establish a ‘duty not to disclose’.
3.98 Leo Tsaknis has argued that in order for criminal sanctions to attach to the breach of a duty not to disclose, that duty must be a legal duty as opposed to a moral obligation or contractual arrangement. However, in Director of Public Prosecutions v G, the Full Court of the Federal Court considered that a contractual obligation may be sufficient to constitute a duty for the purposes of the former s 72 of the Crimes Act, which provided for the offence of falsifying books or records by a Commonwealth officer ‘fraudulently and in breach of his [or her] duty’. The Court was not, however, required to determine this issue.
3.99 Under s 70, criminal sanctions apply to a breach of a ‘duty not to disclose’. This can be compared with s 79 of the Crimes Act (discussed below), which refers to a ‘duty to treat [information] as secret’. The Western Australian Court of Criminal Appeal has held that the phrase ‘duty not to disclose’ is synonymous with the duty to ‘keep secret’ within the meaning of s 81 of the Crimes Act 1913 (WA). However, it may be that, for the purposes of Commonwealth law, the duty not to disclose is wider than the duty to keep information secret, in that secrecy presupposes that the material is not already in the public domain, while a duty not to disclose could apply to any information.
3.100 Section 70 of the Crimes Act makes it an offence for a Commonwealth officer to disclose ‘any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer’. On its face, s 70 could apply to the disclosure of any information regardless of its nature or sensitivity.
From the policy point of view it may be noted that an enactment such as s 70 of the Crimes Act prohibiting the disclosure of information obtained in the course of the duties of a public servant treats the nature or kind of information disclosed as virtually irrelevant. It is the office occupied by the person and the character in which he obtained the information which imposes the obligation of secrecy upon him in the interests of orderly administration and discipline of the service.
Whether a duty of confidentiality arises so that s 70 Crimes Act can punish its breach will depend on the type of information, the circumstances in which it has been acquired and the interests of relevant parties in keeping it confidential. A consideration of the public interest must also be relevant. The duty to keep information confidential may attach to information of any kind but it must be such and acquired in such circumstances that such a duty arises. It does not arise merely because the information is obtained by an officer in the course of his or her duties.
3.103 The application of s 70 to the disclosure of information will depend on the nature of the duty not to disclose. As noted above, for example, the equitable duty of confidentiality only arises where the disclosure would be inimical to the public interest.Therefore, a prosecution for an offence under s 70, reliant on a breach of an equitable duty to protect confidential information, may require the prosecution to show that the disclosure was likely to harm the public interest. On the other hand, if the prosecution relied upon a breach of a statutory duty not to disclose any information obtained in the course of employment, s 70 could potentially apply to the disclosure of information already in the public domain.
3.104 Section 70 expressly applies to the communication or publication of a ‘fact or document’. Neither ‘fact’ nor ‘document’ is defined. Finn has argued that the need for disclosure of a ‘fact or document’, rather than ‘information’, opens the application of s 70 to anomalies:
Where a document is not disclosed all that is protected is a ‘fact’; where a document is disclosed its contents need not be ones of fact. Unless ‘fact’ is given a meaning which covers disclosure of advice, opinion, intention etc, the scope of the offence is manipulated simply by the particular means (oral or documentary) used in the disclosure.
3.105 The distinction between the communication of a fact or a document can be important to the prosecution of an offence. In R v Kessing, a former officer of the Australian Customs Service, Allan Kessing, was convicted of providing reports about airport security arrangements to two journalists. On appeal, the New South Wales Court of Criminal Appeal held that the trial judge had misdirected the jury in saying that it was sufficient if the prosecution could establish that Kessing had confirmed the accuracy of material that journalists had obtained from another source. Bell JA, with whom Rothman and Price JJ agreed, stated that:
The offence under s 70 may be committed by publishing or communicating a fact which came to the knowledge of the accused by virtue of having been a Commonwealth officer or by publishing or communicating a document which came into his or her possession by virtue of having been a Commonwealth officer or by both. This was a case in which the offence charged was the communication of the documents. To confirm the accuracy of a document leaked by another to a journalist may be to communicate a fact, but in my opinion it is not to communicate the document.
3.106 Further, Tsaknis has pointed out that it is unclear whether the release of any information would constitute a ‘fact’ or whether the prosecution needs to prove the factual accuracy of the information in order to satisfy the terms of s 70.
3.107 A person commits an offence under s 70 if he or she ‘publishes or communicates’ any fact or document. The Crimes Act does not provide any guidance as to the meaning of the term ‘publishes or communicates’. In Kessing v The Queen, Bell JA, with whom Rothman and Price JJ agreed, summarised this requirement as follows:
To ‘communicate’ is to transmit or to impart knowledge or make known (Macquarie Concise Dictionary, 3rd ed). One may ‘communicate’ a document by communicating the contents of the document. This is how the Crown particularised this case. Generally, ‘to publish’ connotes to make publicly known, however, in the law of defamation publication applies to making the matter complained of known to any person other than the person defamed.
Communication of the contents of a document requires no more than that the contents be conveyed or transmitted to another. This may be done directly by handing the document to another or by reading the document to another. It may be done indirectly by leaving the document on a park bench for another to collect or in any of a variety of ways. The essential feature of communicating a fact or document for the purposes of s 70 is that the communication is intentional.
3.109 Section 70(1) of the Crimes Act applies to Commonwealth officers, while s 70(2) applies to former Commonwealth officers. The definition of Commonwealth officer set out in s 3 of the Crimes Act includes a person:
- appointed or engaged under the Public Service Act;
- employed in the public service of a territory, Australian Defence Force, Australian Federal Police or public authority under the Commonwealth;
- who performs services for or on behalf of the Commonwealth, a territory or public authority; or
- who performs services, or is an employee of the Australian Postal Corporation.
3.110 The list of persons included in this definition is not exhaustive, and some categories could be broadly interpreted. In particular, ‘a person holding office under, or employed by, the Commonwealth’ arguably includes a very wide category of persons. While there has been little judicial consideration of who may be considered a Commonwealth officer, judges, ministers and ministerial staff all potentially fall within the definition. It is important to note that while a person may be a Commonwealth officer, it does not necessarily follow that they have a duty not to disclose information—for example, judges exercising federal judicial power may not be bound by such a duty.
3.111 Other legislation may deem certain officers to be Commonwealth officers. For example, officers or employees of ASIO and staff members of the Australian Secret Intelligence Service are deemed to be Commonwealth officers for the purposes of the Crimes Act.
3.112 Section 70(1) includes an exception to the offence where a person discloses the information ‘to some person to whom he or she is authorised to publish or communicate it’. Section 70(2) contains a different exception by requiring that the publication or communication be ‘without lawful authority or excuse’, proof of which lies with the defendant.
3.113 The scope of each exception, and the extent of any difference between them, is unclear. If the duty not to disclose arises under a particular statutory provision, that provision may clarify the circumstances in which publication or communication of information is authorised. In relation to s 70(1), Tsaknis has suggested that the statute conferring functions, powers and duties of a Commonwealth officer may provide an implied authority to release information. Similarly, in relation to s 70(2), the common law may provide a ‘lawful excuse’, particularly where the ‘duty not to disclose’ arises under contractual, common law or equitable principles.
3.114 Section 70 does not create an exception or defence relating to disclosure in the public interest. However, it is possible that this issue might be a factor in sentencing in a particular case.
6. Example of extension to “person engaged to provide services”
CUSTOMS ADMINISTRATION ACT 1985 - SECT 16
Persons to whom section applies
(1AA) This section applies to:
(a) the CEO; and
(aa) the Commissioner; and
(c) any of the following persons:
(i) a person engaged to provide goods or services to the Commonwealth through the Australian Customs and Border Protection Service (whether or not under an agreement to which the Commonwealth is a party);
(ii) if the person mentioned in subparagraph (i) is a body corporate--a director, an employee or an agent of the body corporate;
(iii) if the person mentioned in subparagraph (i) is an individual--an employee or agent of the individual; and
(d) a person to whom the CEO has delegated a power or function of the CEO under a law of customs or any other law of the Commonwealth; and
(e) a person authorised by the CEO to exercise a power or function under a law of customs or any other law of the Commonwealth.