Legal Practice Briefing
27 October 1994
UNAUTHORISED DISCLOSURE OF GOVERNMENT INFORMATION
There are two situations in which the need to consider the protection of confidential government information can arise. This briefing deals with the situation where an unauthorised disclosure of confidential government information has occurred or is proposed (for example, publication by the media of 'leaked' information or documents). A different situation arises where a lawful requirement for disclosure has been made (for example, by way of court order, FOI request, or statutory demand). In that situation the question arises whether the government has any legal grounds to resist the lawful requirement (for example, by way of a public interest privilege claim or statutory exemption). It is not the purpose of this briefing to deal with that situation. Also, this briefing is limited to remedies that may be available under the civil law. Responsibility for prosecutions under the criminal law lies with the Director of Public Prosecutions.
Bases of Claim
The Commonwealth can have copyright in its material (Part VII of the Copyright Act 1968). Accordingly, the Commonwealth has the normal remedies available to it for a threatened or actual infringement of its copyright, including an injunction, damages, account of profits, delivery up of infringing copies (for example, documents or computer disks created by the defendant). The fundamental deficiency of copyright in relation to protection of confidential information, however, is that in essence copyright only protects the form of the work. Copyright 'is not infringed by publishing information or ideas contained in the document so long as the publication does not reproduce the form of the literary work'(1). Thus, if the purpose is to restrain disclosure of information in a document, remedies based on copyright may be of no practical use because the information can still be (and on at least one occasion has been) published in a different form.
Ownership of Property
The Commonwealth can take legal action to recover its property from a person who wrongly has that property. Thus, a person who wrongly has a document or computer disk owned by the Commonwealth can in appropriate circumstances be compelled to deliver up the disk or document (that is, the piece of paper) to the Commonwealth. Generally, however, that remedy will be of no practical use in the present context. In particular, the remedy does not extend to a disk or document not owned by the Commonwealth, for example where a copy of a Commonwealth document has been made on the defendant's own computer disk or paper. Nor is the defendant precluded from disclosing the contents of the document. In some cases, however, it may be that by regaining possession of its document (or of its own disk) the Commonwealth would be assisted in identifying the source of the leak.
Restraining Breach of Criminal Law
It may be that threatened disclosure by a person of information would, if it actually occurred, constitute a criminal offence (for example, section 79 of the Crimes Act 1914 official secrets). Generally, it appears unlikely that the threatened commission of such an offence would be sufficient to obtain an injunction restraining disclosure. In Commonwealth v Fairfax, Mason J declined to grant an injunction restraining an alleged threatened breach of section 79, stating as follows (at pages 4950):
'The issue of an injunction to restrain an actual or threatened breach of criminal law is exceptional. The right, usually regarded as that of the Attorney-General, to invoke the aid of the civil courts in enforcing the criminal law has been described as "of comparatively modern use", one which "is confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty ... or to cases of emergency" ... It may be that in some circumstances a statutory provision which prohibits and penalizes the disclosure of confidential government information or official secrets will be enforceable by injunction. This is more likely to be the case when it appears that the statute, in addition to creating a criminal offence, is designed to provide a civil remedy to protect the government's right to confidential information. I do not think that s 79 is such a provision. It appears in the Crimes Act and its provisions are appropriate to the creation of a criminal offence and to that alone. The penalties which it imposes are substantial. There is nothing to indicate that it was intended in any way to supplement the rights of the Commonwealth to relief by way of injunction to restrain disclosure of confidential information or infringement of copyright. There is no suggested inadequacy in these two remedies which would lead me to conclude that it is appropriate to regard s 79 as a foundation for injunctive relief.'
Breach of Confidence
A court will 'restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged' (Fairfax at page 50). The plaintiff must show that there will be an unauthorised use of such information to the 'detriment' of the plaintiff. In relation to what constitutes 'detriment' to a government in this context, Mason J said in Fairfax (at pages 5152):
'The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
'It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
'Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
'The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.'
Confidential information which comes into the public domain loses its confidentiality. Thus, it is not possible to restrain further publication of such information. However, publication a considerable time ago in an obscure journal does not necessarily mean that the information is currently in the public domain. Also, prior publication of an assertion of fact made by a person outside government does not necessarily meet the public domain test in relation to the proposed publication of information from an authoritative source within government confirming the accuracy of the earlier assertion. While the assertion is not confidential, the question of its correctness remains confidential.
Because the government's ability to restrain disclosure of information depends on a balancing of the public interest, a court may not restrain disclosure of 'things done in breach of national security, in breach of the law (including fraud) and ... matters which involve danger to the public' (Fairfax at page 57). This 'defence' does not extend beyond 'misdeeds of a serious nature and importance to the country'(2). Even where the defence applies, however, it does not automatically follow that publication to the world at large is justified(3) - a limited disclosure to a person in authority will often suffice. This latter point is of special relevance in relation to the Commonwealth because of the statutory mechanisms which exist for complaints of wrongdoing (for example, Ombudsman Act 1976 and Inspector-General of Intelligence and Security Act 1986).
If there is a threat of immediate disclosure of material substantially prejudicing the public interest, it is appropriate to seek an ex parte interim injunction.
Difficulties can arise in relation to presentation of the evidence necessary to prove the Commonwealth's case. There are fundamental general principles that courts are open to the public and that defendants and their legal representatives are entitled to have access to all evidence presented by plaintiffs. However, if proceedings of the kind currently in question had to be conducted wholly in accordance with those principles it would usually (if not always) be impossible to bring the proceedings.
In such circumstances courts have been prepared to make orders restricting access to evidence, including access by a defendant, and to the court file. There is an established exception to the open justice principle in cases where the observance of that principle would defeat the ends of justice. In particular, it has been stated that 'if the factor of national safety appears to endanger the due administration of justice, e.g., by deterring the Crown from prosecuting in cases where it should do so, a court may sit in private'(4).
In addition to the above common law principle, section 85B of the Crimes Act empowers courts exercising federal jurisdiction to make closed court orders, and to restrict publication of and access to material, where that is 'expedient in the interest of the defence of the Commonwealth'. It has been successfully argued that in section 85B 'defence' is wider than military defence and includes Australia's security generally. Also, section 50 of the Federal Court of Australia Act 1976 empowers the Federal Court to make orders restricting publication of material 'in order to prevent prejudice to the administration of justice or the security of the Commonwealth'.
Usually after the proceedings have been commenced it becomes possible to identify with precision what future disclosures are proposed by the defendant. What has in practice then occurred has been a negotiating process whereby agreement is reached on deletions. That agreement can then be embodied in a court order or in undertakings by the defendant to the court.
Possible Remedies for Breach of Confidence
Injunction Restraining Publication
As an alternative to an injunction it has been common to accept an undertaking by the defendant given to the court (breach of the undertaking thus being a contempt).
Order for Destruction or Delivery-up of Documents
Destruction, or delivery-up to the Commonwealth, of documents containing the information in question can be ordered both in relation to documents owned by the Commonwealth and other documents (for example, copies made by the defendant and fresh documents created by the defendant). Such an order is made, not to punish the defendant but to perfect an injunction which the court has granted. Thus, it appears that the order will be made only in cases where the court has granted an injunction.
Damages or an Account of Profits Made by the Defendant
The Commonwealth does not normally institute breach of confidence proceedings for the purpose of gaining a monetary remedy. However, it does not follow that such remedies are inappropriate.
Disclosure of Sources of Information
It is 'a fundamental principle of our law ... that the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice'(5).
'Anton Piller' or Alternative Orders
This order authorises the plaintiff to enter the defendant's premises and seize offending documents. The purpose of the order is to prevent a dishonest defendant from destroying relevant documents before they become subject to the court's processes. Alternative orders are that the defendant deliver relevant documents to the Registrar, specify the location of the documents, identify the persons to whom documents had been supplied, and assist in retrieving them. Another alternative is an order restraining the defendant from destroying or parting with possession of documents pending trial.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.