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Herborn, Daniel --- "Secrecy and Commonwealth Information: Revisiting Goreng-Goreng" [2009] IndigLawB 47; (2009) 7(15) Indigenous Law Bulletin 26


Secrecy and Commonwealth Information: Revisiting Goreng-Goreng

Daniel Herborn

Tjanara Goreng-Goreng, an Indigenous woman who worked as a branch manager at the Commonwealth Office of Indigenous Policy Co-ordination, was charged in 2006 with improperly disclosing information gained by virtue of her position as an officer of the Commonwealth. The charges related to two separate incidents, the first of which involved the disclosure of information on what was then the Draft Declaration on the Rights of Indigenous Peoples to her daughter by email to assist with a university assignment.

The second charge related to some classified emails that she forwarded to a member of the Mutitjulu community in connection with a number of Commonwealth Indigenous policy initiatives, including plans to introduce sexual health checks for children. Additionally, they revealed that other initiatives in the area were failing, specifically that alcohol bans were regularly being breached and measures to prevent petrol sniffing were not succeeding.

Ms Goreng-Goreng was tried last year before Refshauge J in the ACT Supreme Court.[1] The maximum penalty for these offences was imprisonment for two years,[2] but the Defendant was ultimately given a fine of $2,000, a three-year good behaviour bond and no formal sentence was recorded.

The main point of legal interest in this case was the constitutional validity of the regulation imposing a statutory duty of non-disclosure on public servants in relation to Commonwealth information.

A Duty not to Disclose?

Section 70(1) of Crimes Act 1914 (Cth) (‘the Crimes Act’) sets out that

A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorised 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.

The wording of this provision means that it is necessary to locate the duty not to disclose elsewhere, either at common law or in another statute.

The Crown argued in Ms Goreng-Goreng’s case that the relevant duty could be located in the common law duty requiring employees to serve their employer in good faith and fidelity, and in the equitable duty not to disclose confidential information of their employer. It also argued a statutory duty of non-disclosure as provided in regulation 2.1 of the Public Service Regulations 1999 (Cth), which provides that Commonwealth public servants 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, including the formulation or implementation of policies or programs.[3]

Regulation 2.1(4) further sets out that, whether or not the disclosure would found an action for breach of confidence, the information must not be disclosed if it

(a) was, or is to be, communicated in confidence within the government; or

(b) was received in confidence by the government from a person or persons outside the government.

Justice Refshauge heard an application by Ms Goreng-Goreng to stay proceedings on the basis that regulation 2.1 was unconstitutional. The Defendant argued that the regulation was invalid on three grounds:

• It violates the implied constitutional freedom of communication found at ss7, 24, 64 and 128 of the Constitution

• Its operation is unclear

• It operates to extend the operation of the primary legislation and is thus ultra vires.

Justice Refshauge considered each of these three limbs of attack in turn.

Freedom of Political Communication

The Defendant primarily relied on the precedent of Bennett v Human Rights and Equal Opportunities Commission ('Bennett's case'),[4] where regulation 7.13, the fore-runner to regulation 2.1, was found to illegitimately encroach on the freedom of political communication. At that time, the regulation provided that

An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

A ‘catch all’ provision, Bennett’s case found that regulation 7.13 was not ‘reasonably and appropriately adapted to furthering the general end relied upon’ because it unnecessarily or unreasonably impaired the freedom of political communication.[5] Covering any information ‘about public business’ or ‘anything of which the employee has official knowledge’, the former regulation was ruled invalid and was later replaced with regulation 2.1.

Justice Refshauge found that, given the amended wording, regulation 2.1 was not unacceptably general in its approach, but was a more focused and targeted provision that sought to protect a legitimate government interest. Further, his Honour noted the adoption of Finn J's suggested formulation in Bennett’s Case, whereby a provision protecting against disclosure could be said to be consistent with the freedom of political communication where it was linked to the ‘effective working of government’.[6]

Justice Finn had also noted with approval regulation 15 of the Public Sector Management Regulations 1995 (SA) as an example of legislation which would not breach the freedom, importing a restriction according to ‘matters affecting the Public Service or the business of the Public Service’. Unfortunately for the Defendant, Refshauge J found that regulation 2.1 was too closely based on this narrower regulatory formulation and thus could not be said to be unconstitutional on this ground.

Invalid for Uncertainty

The Defendant relied on the House of Lords case De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housings and Ors, where it was held that, where public servants are exposed to criminal sanction

a degree of precision is required so that the individual will be able to know with some confidence where the boundaries of legality may lie.[7]

That decision was influenced by the European Commission of Human Rights case G v Federal Republic of Germany, which found that that

legal provisions which interfere with individual rights must be ... formulated with sufficient precision to enable the citizen to regulate his conduct.[8]

But Refshauge J noted Australian authorities on uncertainty could not be said to be correspond precisely with the English position. Nor did it align with the jurisprudence of the US Supreme Court. Instead, the leading statement on the issue was made by Dixon J in King Gee Clothing Co Pty Ltd and Ors v The Commonwealth and Anor. In that case, his Honour said

I am not prepared to subscribe to the doctrine that certainty is a separate requirement which all forms of subordinate legislation must fulfil.[9]

In that case, Dixon J did strike down the relevant subordinate legislation which purported to fix prices. Justice Refshauge distinguished the case, finding that that those regulations failed to achieve the kind of specificity which was not only appropriate in the circumstances, but was necessary for their operation. Regulation 2.1, by contrast, concerned conduct which ‘almost inevitably will not lend itself to an exact description which cannot be a matter of judgment.’ His Honour held that, on balance, regulation 2.1 was not invalid for uncertainty because it is neither possible nor desirable to completely delimit all types of information that must not be disclosed by a Commonwealth public servant.

Ultra Vires

The Defendant argued that the regulation had illegitimately broadened the scope of the Public Service Act 1999 (Cth) and was therefore impermissible. Examining the objects of the Act, Refshauge J found that the provisions on disclosure of information were consistent with the aim of establishing the ‘rights and obligations of APS employees’.[10] His Honour found that the provisions on disclosure of information were possibly also consistent with the aim of providing a legal framework for the ‘effective and fair employment, management and leadership of APS employees’.[11]

Further, s 13 of the Public Service Act 1999 (Cth) contains a Code of Conduct to guide Australian public servants in carrying out their work. The Code imposes a range of duties, including a prohibition against the improper use of ‘inside information’[12] or ‘duties, status, power or authority’.[13] Moreover, employees are required to comply with any other conduct requirement that is prescribed by the Public Service Regulations 1999 (Cth).[14] Justice Refshauge found that, in light of these provisions under the code, regulation 2.1 cannot be said to be beyond the contemplation of the Public Service Act.

Implications of the Case

This case affirms that regulation 2.1 is constitutionally valid, being a more focused variant than its 'catch-all' predecessor. This means that public servants who disclose sensitive information gained by virtue of their position as Commonwealth employees can be charged under s70 Crimes Act 1914 (Cth) and have their employment terminated.

Some commentators have argued that the implied constitutional guarantee of political freedom could potentially be a source of protection for Commonwealth officers who breach secrecy obligations in order to expose what they see as maladministration.[15] This case indicates that such a position is yet to become part of Australian law.

Since the decision in this case, the Australian Law Reform Commission (‘ALRC’) has published a discussion paper as part of its Secrecy Inquiry, examining the operation of laws such as regulation 2.1. The ALRC considers whether imposing criminal sanctions on Commonwealth officers for breaching their obligation of nondisclosure is desirable. Of particular interest is the proposal that criminal liability for disclosure of information under s.70 should only apply in limited circumstances, such as where the disclosure ‘does damage, is reasonably likely to damage, or is intended to damage important public interests’.[16] Perhaps Ms Goreng-Goreng’s actions would not have attracted criminal liability if these proposals had been in place in 2006. Whether the Commonwealth accepts the ALRC’s final recommendations – due to be submitted to the Commonwealth Attorney General in 2010 – remains to be seen.

Daniel Herborn is a candidate for the LLM at the University of New South Wales. His writing has appeared in the Sydney Morning Herald, The Sun-Herald, Eureka Street and the Journal of Australian Studies.


[1] R v Tjanara Goreng-Goreng [2008] ACTSC 74.

[2]Crimes Act 1914 (Cth) s70, emphasis added.

[3] Reg 2.1(3)

[4] [2003] FCA 1433.

[5]See the High Court decision in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[6] Bennett’s case [358-9].

[7] [1998] UKPC 30, 78.

[8] G v Federal Republic of Germany, 6 March 1989, Application No 13079/87, 60 D & R 256, 261,

[9] [1945] HCA 23, 194.

[10] S 3(d).

[11]S 3(b).

[12] 13(10(a).

[13] 13(10)(b).

[14] 13(13).

[15]See, for example, Richard Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ (2000) 28 Federal Law Review 42, 48.

[16] Australian Law Reform Commission, Review of Secrecy Laws ( 74) (2009), 229.


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