The Queen v Tjanara Goreng-Goreng

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 18 August 2008
• Docket Number: No. SCC 369 OF 2007
• Date: 18 August 2008

[2008] ACTSC 74

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCC 369 OF 2007

The Queen

and

Tjanara Goreng-Goreng

Counsel for the prosecution: Mr S D Hall SC

Counsel for the accused: Mr J Harris SC and Ms J Saunders

R v Djerke [2008] ACTSC 41

R v Tran (2002) 167 FLR 345

Lane v The Queen (1996) 66 FCR 144

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106

Kruger v Commonwealth (1997) 190 CLR 1

Levy v State of Victoria (1997) 189 CLR 579

Bennett v Human Rights and Equal Opportunity Commission (2003) 134 FCR 334

Lange v Australian Broadcasting Commission (1997) 189 CLR 520

De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housings and Ors [1999] 1 AC 69

King Gee Clothing Co Pty Ltd and Ors v The Commonwealth and Anor (1945) 71 CLR 184

Cann's Pty Ltd v The Commonwealth and Anor (1946) 71 CLR 210

Anchorage Butchers Ltd v Law (1939) 42 WALR 40

Merrell v Roberts (1909) 26 WN(NSW) 73

Ireland v Wilson [1936] 3 All ER 358

Shanahan v Scott (1957) 96 CLR 245

Local Government and Ethnic Affairs (1990) 21 ALD 69

Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665

Jacobs v Gray (1941) 14 ALJ 434

Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557

Peppers Self-Service Stores Pty Ltd v Scott (1958) 98 CLR 606

Utah Constructions and Engineering Pty Ltd and Anor v Pataky [1966] 2 WLR 197

Willocks v Anderson (1971) 124 CLR 293

Carbines v Powell (1925) 36 CLR 88

Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402

Esmonds Motors Pty Ltd v The Commonwealth (1970) 120 CLR 463

Deing v Tarola [1993] 2 VR 163

Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69

Something Better Pty Ltd and Ors v Pyramid Building Society (In Liq) (1996) 135 ALR 297 O'Connell v Nixon (2007) 16 VR 440

Crimes Act 1914 (Cth), s 70(1)

Human Rights Act 2004 (ACT)

Freedom of Information Act 1989 (ACT)

Judiciary Act 1903 (Cth), s 78B

Marketing of Primary Products Act 1935 (Vic)

Public Sector Management Act 1995 (SA), s 57(g)

Public Service Act 1999 (Cth), s 13(10), 79(1)

Public Service Regulations 1999 (Cth), reg 2.1

Prices Regulation Code No 1818

Egg and Egg Pulp Marketing Board Regulations 1953

Denis O'Brien, ‘FOI Report: Enhancing Accountability’ (1996) 7 Public Law Review 135

Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, Sydney: 2005, 3rd ed), Chapters 15, 22

CRIMINAL LAW AND PROCEDURE — pre-trial application — admission of evidence — regulations — whether invalid and inadmissible — found to be valid.

STATUTES — delegated legislation — constitutional guarantee of freedom of political communication — uncertainty — ultra vires — found to be valid.

ORDER

THE COURT ORDERS THAT:

1. The application to exclude evidence of Regulation 2.1 of the Public Service Regulations 1999 (Commonwealth) be dismissed.

1 The accused, Tjanara Goreng-Goreng, has been charged with six counts of publishing or communicating a document which came into her possession by virtue of her being a Commonwealth officer and which it was her duty not to disclose and one count of publishing or communicating facts which similarly came into her possession and which were subject to the same duty.

2 At least one ground for saying that there was a duty that she not disclose the documents or facts is alleged by the prosecution to be reg 2.1 of the Public Service Regulations 1999 (Cth), which in summary is said to forbid such disclosure as is alleged.

3 By application dated 7 August 2008, the accused applied for a stay of the proceedings against her on the grounds that reg 2.1 was invalid ‘ for infringing the requirement of freedom from laws preventing communication protected by sections 7, 24, 64 or 128 of the Constitution’.

The application and its hearing

4 Because the trial was listed to commence on 18 August 2008, this application has been heard urgently. Counsel for the prosecution and the accused, however, were able to provide written submissions which were comprehensive and helped to define the issues and focus the oral hearing.

5 As the challenge concerned a matter arising under the Constitution, the accused gave notices under s 78B of the Judiciary Act 1903 (Cth) to the Attorney-General of each State and Territory and of the Commonwealth. A copy of the Notice (which attached a copy of the indictment) was attached to the application together with a copy with the letter sent to each Attorney with a copy of the notice. This was an unusual way of purporting to prove service of these important documents and probably less than desirable but as no point was taken about it, I accepted them. A number, indeed a majority, of Attorneys, I was informed without objection, had advised that they did not intend to intervene. Accordingly, I was satisfied that the Notice specified the nature of the matter and that a reasonable time had elapsed since the giving of the Notice to the Attorneys.

6 As noted above, written submissions were filed and served. The prosecution, in its submission noted that reg 2.1 had been substantially repealed and substituted on 15 July 2006, between the date on which the offence alleged in counts one and two was said to have been committed and the date on which the offence in the remaining counts on the indictment was said to have been committed. The repealed regulation was similar to one declared invalid, as noted below, and, accordingly, the prosecution no longer pressed the repealed regulation as a source of the duty that it alleged the accused had not to publish or communicate the specified documents referred to in counts one and two.

7 It pressed, however, the substituted reg 2.1 as a source of the relevant duty in the other counts.

8 It also submitted, though, that there were three other relevant duties which applied as well and to which the accused was also subject, namely

• • the common law duty of an employee to serve in good faith and fidelity;

• • the equitable duty of confidence of employees to protect the confidential information of their employer; and

• • the obligation under s 13(10) of the Public Service Act 1999 (Cth) (‘the Public Service Act’) not to publish information as there set out (see par 13 below).

9 As a result, it was accepted by Mr Harris SC, who appeared for the accused, that even were I to declare invalid the substituted reg 2.1 that would not provide grounds for a stay, since there were other duties to found the counts. He wished, however, to proceed with the application since, as I understood how he put it, there may be some prejudice to the accused in a reference during the trial to reg 2.1 and, if it were invalid, then that prejudice would be unfair.

10 Accordingly, the application became, in effect, and by consent, an application to exclude any evidence of reg 2.1 on the basis of its invalidity. No precise formulation of the orders now sought were given but is seemed reasonably clear what was being sought.

11 The accused was arraigned on 29 April 2008. I have been allocated as the trial judge. The trial has, therefore, commenced and I can hear such an application: R v Djerke [2008] ACTSC 41 at [7]-[11]; R v Tran (2002) 167 FLR 345 at 349; Lane v The Queen (1996) 66 FCR 144 at 145.

The regulation and the challenge to it

12 Section 13 of the Public Service Act is headed ‘The APS Code of Conduct.’ Section 7 defines APS as ‘ The Australian Public Service established by Section 9’ and is a convenient acronym to use in these reasons.

13 It comprises 13 sub-sections which impose duties on the conduct of APS employees. It is only necessary to set out two of those sub-sections:

• (10) An APS employee must not make improper use of:

  • (a) inside information; or

  • (b) the employee's duties, status, power or authority;

    In order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.

• …

• (13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.

14 Section 79 of the Public Service Act is the regulation-making power and s 79(1) provides:

• (1) The Governor-General may make regulations prescribed matters:

  • (a) required or permitted by this Act to be prescribed; or

  • (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

15 Purportedly pursuant to that power, the Governor-General had made the Public Service Regulations 1999 (Cth). As at 15 July 2006, reg 2.1 was in the following terms:

2.1 Duty not to disclose information (Act s 13)

• (1) This regulation is made for subsection 13(13) of the Act.

• (2) This regulation does not affect other restrictions on the disclosure of information.

• (3) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's 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.

• (4) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee's employment if the information:

  • (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;

    Whether or not the disclosure would found an action for breach of confidence.

• (5) Subregulations (3) and (4) do not prevent a disclosure of information by an APS employee if:

  • (a) the information is disclosed in the course of the APS employee's duties; or

  • (b) the information is disclosed in...