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

Public Service Regulations 1999 (Cth), reg 2.1

R v Djerke [2008] ACTSC 41

R v Tran [2002] ACTSC 56; (2002) 167 FLR 345

Lane v The Queen (1996) 66 FCR 144

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1

Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106

Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1

Levy v State of Victoria (1997) 189 CLR 579

Bennett v Human Rights and Equal Opportunity Commission [2003] FCA 1433; (2003) 134 FCR 334

Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520

De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housings and Ors [1998] UKPC 30; [1999] 1 AC 69

King Gee Clothing Co Pty Ltd and Ors v The Commonwealth and Anor [1945] HCA 23; (1945) 71 CLR 184

Cann's Pty Ltd v The Commonwealth and Anor [1946] HCA 5; (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] HCA 4; (1957) 96 CLR 245

Local Government and Ethnic Affairs [1990] FCA 326; (1990) 21 ALD 69

Hopper v Egg and Egg Pulp Marketing Board (Vic) [1939] HCA 24; (1939) 61 CLR 665

Jacobs v Gray (1941) 14 ALJ 434

Carter v Egg and Egg Pulp Marketing Board (Vic) [1942] HCA 30; (1942) 66 CLR 557

Peppers Self-Service Stores Pty Ltd v Scott [1958] HCA 39; (1958) 98 CLR 606

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

Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293

Carbines v Powell [1925] HCA 16; (1925) 36 CLR 88

Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402

Esmonds Motors Pty Ltd v The Commonwealth [1970] HCA 15; (1970) 120 CLR 463

Deing v Tarola [1993] VicRp 65; [1993] 2 VR 163

Eremin v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 326; (1990) 21 ALD 69

Something Better Pty Ltd and Ors v Pyramid Building Society (In Liq) [1996] VICSC 5; (1996) 135 ALR 297 O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440

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

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".

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] ACTSC 56; (2002) 167 FLR 345 at 349; Lane v The Queen (1996) 66 FCR 144 at 145.

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 accordance with an authorisation given by an Agency Head; or

(c) the disclosure is otherwise authorised by law; or

(d) the information that is disclosed:

(i) is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law; and

(ii) can be disclosed without disclosing, expressly or by implication, other information to which subregulations (3) or (4) applies.

(6) Subregulations (3) and (4) do not limit the authority of an Agency Head to give lawful and reasonable directions in relation to the disclosure of information.

16. Section 70(1) of the Crimes Act 1914 (Cth) provides:

(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence.

17. Mr Harris challenged the validity of reg 2.1 on three grounds:

• that it breached the constitutional requirement of freedom from laws preventing communication protected by ss 7, 24, 64 or 128 of the Constitution (commonly called "the constitutional guarantee of freedom of political communication");
• that it was uncertain in its operation; and
• that it was ultra vires as an impermissible exercise of the regulation-making power.

Invalid for breach of the constitutional guarantee of freedom of political communication

18. In the early 1990's the High Court determined a number of cases, in the context of defamation suits, which considered whether the Constitution contained, by implication a fundamental freedom of political communication as a judicially enforceable limit on the legislative powers of the Commonwealth. That there was such a freedom was established in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106. It was subsequently confirmed that the freedom went beyond this initial defamation law context; see, for example, Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; Levy v State of Victoria (1997) 189 CLR 579.

19. Thus, in Bennett v Human Rights and Equal Opportunity Commission [2003] FCA 1433; (2003) 134 FCR 334 ("Bennett's Case"), Finn J held that the earlier predecessor of reg 2.1 was invalid as contravening this guarantee. This case was, of course, much relied upon by the accused. I note that although the case is reported in an authorised report, the submissions referred to it in an unauthorised report; this is to be discouraged.

20. The regulation was at that time in the following terms:

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.

21. Finn J applied to the regulation the two part test which a unanimous decision of the High Court has enunciated for this purpose. In Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520 at 567 ("Lange's Case"), the Court said:

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution_, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect. Second, if the law, effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively "the system of government prescribed by the Constitution"_).

22. Finn J considered carefully the history and context of the regulation. Clearly it was caught by the first limb in Lange's Case. The question then was whether it was "reasonably and appropriately adapted to furthering the general end relied upon 'without unnecessarily or unreasonably impairing the freedom of communication'": Bennett's Case at 355. His Honour held it was not.

23. His Honour identified a significant shift in the community:

The vices of excessive secrecy in the conduct of government, its effect on the quality of public debate and, ultimately, on the practice of democracy itself, have more recently been both exposed and addressed ...

The progressive advent of Freedom of Information legislation has provided the principal governmental accommodation of the "changing community standards" ... That sentiment is equally reflected in judicial responses to claims made to protect "government secrets" from disclosure in legal proceedings ...": Bennett's Case at 355.

24. His Honour was aware that there were, however, legitimate interests of the State, acknowledging:

(a) both the complexity of, and the need to maintain public confidence in, modern systems of democratic government; and

(b) that differing types of action by public officials may impact upon the State in ways that enliven differing facets of, or emphases in, the State's interests. Bennett's Case at 358

25. His Honour was prepared to accept that the Commonwealth had a legitimate interest in the efficient operation of Government, though his Honour would prefer the formulation "the effective working of Government".

26. Ultimately, his Honour held that the regulation was:

An inefficient provision ... [because] its ambit is such that even the most scrupulous public servant would find it imposes "an almost impossible demand" in domestic, social and work-related settings.

The dimensions of control it imposes impedes quite unreasonably the possible flow of information to the community - information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public's knowledge and understanding of the operation, practices and policies of executive government. Bennett's Case at 358-9.

27. It was, his Honour found, a "catch-all" provision that went too far and was thus invalid.

28. His Honour also dismissed the submissions that the power given by the regulation to an Agency Head to authorise disclosure would render the regulation valid.

29. Importantly in the context of this case, his Honour did comment on how other jurisdictions had met the challenge of protecting a legitimate interest of government without infringing on any right to appropriate free communication of political speech. A 360 in Bennett's Case, his Honour said:

1. I earlier referred to the fact that, in a number of countries of the British Commonwealth including Australia, catch-all prohibitions (subject to exceptions) on the disclosure of official information have been called into question. Simply to illustrate that modern democratic governments have found it possible to regulate information disclosure without compromising interests that ought be protected and without silencing public servants through catch-all provisions, I refer by way of example to the present position in South Australia.
2. The disciplinary provisions of the Public Sector Management Act 1995 (SA) renders an employee liable to disciplinary action if the employee (s57(g)):

Except as authorised under the regulations, discloses information gained in the employee's official capacity, or comments on any matter affecting the Public Service or the business of the Public Service.

1. Regulation 15 of the Public Sector Management Regulations 1995 (SA) in turn provides:

(1) For the purposes of section 57(g) of the Act, an employee may disclose information gained in the employee's official capacity, or comment on matters affecting the Public Service or the business of the Public Service if the disclosure or comment -

(a) is required as part of the employee's official duties; or

(b) is required or authorised under the Freedom of Information Act 1991 or the Whistleblowers Protection Act 1993 or is otherwise required by law; or

(c) is made with the permission of the Chief Executive of the administrative unit in which the employee is employed; or

(d) (i) does not give rise to any reasonably foreseeable possibility of prejudice to the Government in the conduct of its policies, having regard to the nature of the disclosure or comment, the employee's current position or previous positions in the Public Service and the circumstances in which the disclosure or comment is made; and

(ii) is not made with a view to securing a pecuniary or other advantage for the employee or any other person; and

(iii) does not involve:

(A) any disclosure of information contrary to any law or lawful instruction or direction; or

(B) any disclosure of trade secrets or information of commercial value the disclosure of which would diminish its value or unfairly advantage a person in commercial dealings with the Government; or

(C) any disclosure of information in breach of intellectual property rights.

(2) Subregulation (1)(c) and (d) apply whether the disclosure or comment is made in an official or private capacity.

(3) For the purposes of section 57(g) of the Act, an employee may comment on matters affecting the Public Service or the business of the Public Service if the comment is made in the employee's capacity as a member of the governing body of a recognised organisation.

30. There are two points to be made about Bennett's Case and reg 2.1:

• it uses the preferred terminology of Finn J, "effective working of Government"; and
• it is remarkably closely based on the South Australian regulation which it must be taken that his Honour, if not actually endorsed, certainly seemed to refer to with real approval.

31. Nevertheless, Mr Harris contended that reg 2.1 still breached the constitutional guarantee. He built on the reference by Finn J to Freedom of Information legislation to submit that the starting point now was that government information was to be available unless a specific prohibition could be identified. Thus, so I understood him to say, a general prohibition as in reg 2.1 was inconsistent with that approach.

32. It is true Freedom of Information legislation does start from that base: see, for example, s 10 of the Freedom of Information Act 1989 (ACT). I note, however, not insignificantly, that the right there expressed is to access to documents and not to information, a not irrelevant distinction, especially given that count two relates to facts and not to documents.

33. Further, while the process is then to assess the document against exemptions specified in the Act (see Pt 4 of the ACT Act), these are quite extensive. That has, in itself, been the subject of criticism as restricting, if not actually, at the very least the perception of, freedom of information: see, for example, Denis O'Brien, "FOI Report: Enhancing Accountability" (1996) 7 Public Law Review 135 at 136.

34. While that general approach is undoubted, it does not seem to me to assist in the particular issue I have to determine. If one accepts, as I do, and, it seems to me, with respect, that Finn J did in Bennett's Case, that government as an employer has a legitimate interest in preventing disclosures that would or might interfere with their effective operations, the question is not that one starts with a preference for disclosure, but rather how does one determine the limits.

35. Mr Harris submitted that reg 2.1, especially at (3), was not "adapted" (to use the word in Lange's Case) because it was unclear whether it prescribed an objective test of what is reasonably foreseeable or a subjective one, leaving the public servant in a state of uncertainty as to what could or could not be disclosed. While I did not hear argument on it and am therefore hesitant to make a finding, I would be inclined to say that the test would be objective. Nevertheless, it does not seem to me that this goes to the issue of validity in respect of the constitutional guarantee, but to uncertainty. I do not consider it means that reg 2.1 breaches the guarantee.

36. Of perhaps more significance was his reference to the fact that it prohibited such disclosure where it "could be prejudicial to the effective workings of government" and submitted that this meant, rather like the regulation considered in Bennett's Case, that it could prevent disclosure of information that would not turn out to be prejudicial in this way. He described it as a "catch-all" provision as a result.

37. In my view, this is an incorrect description. Regulation 2.1 cannot be so described. It does start from a prohibition and then exempt some information from it (sub-reg (2.1(5)), but it is a much more limited and targeted prohibition. It focuses on a legitimate interest that government has to protect, which failure to comply with the prohibition may prejudice. While the inevitable area of indeterminacy which has to accompany a description such as "the effective operation of government", that inevitably relies to some extent upon a judgment, may lead to some information not being disclosed which could legitimately be disclosed, I do not consider this to convert the provision into what can properly be described as a "catch-all" nor to render it invalid as breaching the constitutional guarantee.

39. Mr Harris next suggested that reg 2.1 was invalid for uncertainty. He relied particularly on a passage in the House of Lords decision of De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housings and Ors [1998] UKPC 30; [1999] 1 AC 69.

40. At 78, the House said of a provision, or rule, regulating conduct of public servants:

The rule applies to all civil servants without distinction so that it is left to the individual in any given circumstances to decide whether he is or is not complying with the rule. Their Lordships are not persuaded that the guidance given is sufficiently precise to secure the validity of the provision. It is to be noticed that the provision is fenced with a possible criminal sanction in section 32 of the Act and it is necessary that in that context 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. It cannot be that all expressions critical of the conduct of a politician are to be forbidden. It is a fundamental principle of a democratic society that citizens should be entitled to express their views about politicians, and while there may be legitimate restraints upon that freedom in the case of some civil servants, that restraint cannot be made absolute and universal. But where the line is to be drawn is a matter which cannot in fairness be left to the hazard of individual decision.

41. It is relevant to note that the House had been influenced by a decision of the European Commission on Human Rights. Earlier on page 78, it had noted:

One principle which has to be observed here is that of legal certainty. This was succinctly expressed by the European Commission on Human Rights in G v Federal Republic of Germany_, 6 March 1989, Application No 13079/87, 60 D & R 256, 261, where it was stated that "legal provisions which interfere with individual rights must be ... formulated with sufficient precision to enable the citizen to regulate his conduct._

42. I note, however, that the Australian position on the principle of uncertainty is not necessarily the same as the English position. In King Gee Clothing Co Pty Ltd and Ors v The Commonwealth and Anor [1945] HCA 23; (1945) 71 CLR 184, the court had to consider certain provisions in the Prices Regulation Code No 1818, fixing the prices of male clothing. At 194, Dixon J said:

But I am not prepared to subscribe to the doctrine that certainty is a separate requirement which all forms of subordinate legislation must fulfil, so that an instrument made under a statutory power of a legislative nature, though it is directed to the objects of the power, deals only with the subject of the power and observes its limitations, will yet be invalid unless it is certain. The doctrine appears to me to be an innovation and to have come from a generalisation from, or transfer of, a rule or supposed rule for determining the validity of by-laws.

I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise. Our Constitution contains no due process clause and we cannot follow the jurisprudence of the United States by saying that uncertainty violates a constitutional safeguard ...

44. His Honour then referred to some cases from the United States Supreme Court. While the situation in this Territory might, therefore, be different because of the Human Rights Act 2004 (ACT), a question on which I presently offer no view, that Act cannot, of course, affect Commonwealth legislation.

45. His Honour did, however, strike down the provisions because they had an uncertainty in their operation. Thus, at 197, his Honour said:

It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and it is not well exercised.

46. This approach was followed by the High Court, also considering price fixing subordinate legislation, in Cann's Pty Ltd v The Commonwealth and Anor [1946] HCA 5; (1946) 71 CLR 210.

47. In my view, however, this needs to be seen in the light of what the power was that was given to the maker of the subordinate legislation. The power was to fix and declare maximum prices. Such an exercise, it can be seen, needs and can achieve a degree of specification to which "estimate, assessment, discretionary allocation or apportionment" is not appropriate. Thus, the regulation which required such an approach can be seen to be a failure to exercise the power actually given.

48. That, however, does not mean that in appropriate circumstances, subordinate legislation cannot introduce terms which require some degree of judgment. For, example, in Anchorage Butchers Ltd v Law (1939) 42 WALR 40, the court, though striking down a health by-law had no difficulty in upholding the validity of a provision of it that required a vehicle used in the transport of meat had to be "properly ventilated". As Dwyer J said at 43:

... as to ventilation, what is proper is what is considered suitable by the reasonable, prudent and competent man, having regard to the article carried and the circumstances of carriage. That is a standard not unfamiliar, and one which actually exists.

49. Similarly, in Merrell v Roberts (1909) 26 WN(NSW) 73, a regulation which prohibited driving 'at such a rate of speed ... or in a manner as to ... frighten or injure any ... animal' was held not to be uncertain. The court held that it was not difficult for a court to consider whether under the circumstances of the case the vehicle was being driven at such a speed.

50. Then in Ireland v Wilson [1936] 3 All ER 358, a by-law which provided "Every driver of a motor hackney carriage shall when working or plying for hire ... conduct himself in a proper civil and decorous manner at all times" was held to be valid. It appears that the terms here were challenged as unreasonable rather than uncertain, but the result seems the same when Lord Hewart LC'J referred to the by-law being "most salutary" if "unreasonably administered".

51. Those are, however, older cases. Others have held that subordinate legislation is invalid if it has an uncertain operation. A number are referred to in Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, Sydney: 2005, 3rd ed), Ch 22.

52. I have found this the most difficult ground. It is correct that a person should be able to know clearly what is going to be criminal conduct before one engages in it. It may be, that such an approach is not required where what is at issue is only a matter of discipline, such as an employer is entitled to expect of and exact upon an employee.

53. On the other hand, there are many examples of criminal laws which depend upon judgment: dangerous driving and manslaughter by negligent conduct come easily to mind.

54. I have also to consider the context of the provision. We are considering conduct which almost inevitably will not lend itself to an exact description which cannot be a matter of judgment. It is not like a price or the description of a place. I also take into account the apparent approval by Finn J in Bennett's Case of the very similar South Australian provision.

55. The description of the legitimate interests of government, as approved by Finn J in Bennett's Case, namely the "effective operations of government" do not of themselves mean that this is the appropriate description in a regulation. Nevertheless, it is a fair description of what information should not be permitted and I am sure that public servants will, by and large, comprehend what is encompassed. It also has to be taken into account that reg 2.1 has a number of provisions, including sub-reg 2.1(5) which make the obligation of an APS employee much clearer and more precise. Such an employee can be clearly expected to have had an appropriate induction or training about such matters, though I readily concede this was not in evidence before me.

56. Accordingly, not without considerable hesitation, I have concluded that reg 2.1 is not invalid as uncertain and that this attack also fails.

57. Mr Harris raised a third argument challenging the validity of the regulation. It was, he said, ultra vires because it was not merely ancillary to the Act but that it had the effect of extending the scope or general operation of the Act. This, he submitted, was impermissible; it had been held so by the High Court in Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 where in the majority judgment of Dixon CJ and Williams, Webb and Fullager JJ at 250 it was said of a general power in an act of parliament given to the executive to make regulations providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of the act or for carrying out its objects that

... it does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

58. In that case the act, the Marketing of Primary Products Act 1935 (Vic) provided machinery for the collective marketing of primary products, including the establishment of marketing boards if agreed to by primary producers of a particular product, to vest the produce in the board and then to sell and deliver it and to provide for the distribution among the producers. It appears an Egg Marketing Board was established and the Egg and Egg Pulp Marketing Board Regulations 1953 purportedly made under the Act for that purpose.

59. It is surprising how much litigation was generated in the High Court about this Act and the regulations made under it. For those in relation to the egg industry alone, see, an addition to Shanahan v Scott, supra, Hopper v Egg and Egg Pulp Marketing Board (Vic) [1939] HCA 24; (1939) 61 CLR 665, Jacobs v Gray (1941) 14 ALJ 434, Carter v Egg and Egg Pulp Marketing Board (Vic) [1942] HCA 30; (1942) 66 CLR 557 and Peppers Self-Service Stores Pty Ltd v Scott [1958] HCA 39; (1958) 98 CLR 606. This, of course, does not include litigation in the Victorian Supreme Court as well.

60. The regulation power under s 43(1) of the Act permitted the Governor-in-Council of Victoria to make regulations inter-alia:

... providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of this Act or for carrying out the objects of this Act, and in particular, without affecting the generality of the foregoing ... (b) in relation to any board for or with respect to ... (iv) ... regulation the transport treatment manufacture grading processing branding labelling packing storage marketing selling export and delivery of the commodity (whether the same is produced within or outside Victoria) or the packages containing such commodity.

61. The regulation the subject of challenge in Shanahan v Scott, supra, purported to make it an offence for any person, without the consent of the Egg and Egg Pulp Marketing Board, to place or cause to be placed any eggs in any cold storage premises or subject any eggs to any preservative treatment.

62. The regulation was sought to be justified under reg 43(1)(b)(iv) in that it was a regulation that regulated storage of a commodity. The court rejected that at 253 on what might be regarded as the very narrow interpretative ground (though apparently now generally accepted: see ch 15 in Pearce and Argument, Delegated Legislation in Australia, supra) that it did not regulate storage but rather prohibited it subject to a power of consent. The paragraph was held to relate to the conditions, manner and occasion of storage and not whether it is done at all.

63. More relevantly for the present context, the regulation was sought to be justified under the general words of s 43(1). The court pointed out at 253-4 that the regulation purported to deal with eggs not vested in the Board and even extend to those which the Board had sole unconditionally. Thus, it was much more than "an elaboration, a filling in or a fulfilment of the plan or purpose ... of the Act" but an addition to it and an extension beyond it to "the use, handling or disposition of eggs independently of the board's marketing" of the eggs it acquires by vesting or otherwise.

64. To state this shows how different was the situation the subject of the High Court's judgment and the regulation and act I am asked to consider.

65. I note that the general principle in Shanahan v Scott, supra, quoted above, was adapted by the Privy Council in Utah Constructions and Engineering Pty Ltd and Anor v Pataky [1966] 2 WLR 197 where a regulation requiring tunnels to be safe was ultra vires a power to make regulations the "manner of carrying out ... excavation work" for it did not justify an absolute duty of protecting the tunnel or of ensuring the safety of persons employed in it as it only envisaged a system of working.

66. Even accepting this perhaps narrow view of the regulation-making power, the comparison with this case shows it to be quite different. See also Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 where at 299 the court adopted the formulation of Isaacs J in Carbines v Powell [1925] HCA 16; (1925) 36 CLR 88 at 91, namely "confined to the same field of operations as that marked out by the Act itself" and summarised the impermissible as where a regulation "attempts to widen the purposes of the Act" and attempt to add a means of carrying them into effect which the Act itself does not contemplate.

67. Indeed, earlier in Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402, the High Court had taken this general approach. The court, in a unanimous decision, had also provided guidance as to the task of a court in attempting to evaluate the validity of the regulation. At 410, the court said:

A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.

In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power [permitting prescription of matters as may be necessary or convenient for giving effect to the Act] cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way.

68. It has also been made clear that the criteria of necessity and convenience are not subjective; such regulations must in their substance be "capable of being regarded as ... necessary or convenient for giving effect or carrying out the [Act]": Esmonds Motors Pty Ltd v The Commonwealth [1970] HCA 15; (1970) 120 CLR 463 at 467.

69. On the other hand, in Deing v Tarola [1993] VicRp 65; [1993] 2 VR 163 the Act permitted the Executive to prescribe items as weapons which it then forbade people to possess carry or use. The regulations prescribed "any article filled with raised pointed studs which is designed to be worn as an article of clothing" and the court, pointing out that it would be surprising if "there are many women in the community who do not include a studded belt in their wardrobes" (at 166) held the regulation invalid.

70. Another helpful example is Eremin v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 326; (1990) 21 ALD 69, where a regulation-making power permitted regulations to be made entitling the grant of an entry permit if the applicant satisfied the prescribed criteria. A regulation prescribing criteria included the fact that a substantial political upheaval, a major natural disaster or significant repression had taken place in the applicant's country and those matters have been specified by the Minister in a Gazette notice. The court dismissed a challenge to the validity of the regulation which had been based on the argument that the events or circumstances were issues of fact but the Minister may not publish the appropriate notice. The terms "substantial", "major" and "significant" were ones of degree and it was appropriate for determination by the Minister; the potential harshness of the operation of the regulation did not render it invalid.

71. In my view, reg 2.1 and specifically sub-reg 2.1(3) is valid if one applies the principles I have enunciated above. As have become more common in current legislative drafting practice, the Public Service Act sets out, in s 3, the objects of the Act. It provides:

3 Objects of this Act

The main objects of this Act are:

(a) to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public; and

(b) to provide a legal framework for the effective and fair employment, management and leadership of APS employees; and

(c) to define the powers, functions and responsibilities of Agency Heads, the Public Service Commissioner and the Merit Protection Commissioner; and

(d) to establish rights and obligations of APS employees.

72. Setting out the provisions regulating disclosure of information obtained in the course of an APS employee (as in reg 2.1) seems to me to fall certainly within (d), probably within (a) and arguably within (b). Thus, the subject-matter of the regulation is well within, to use the words of Morton v Union Steamship Company of New Zealand, supra, "the field of operation which the Act marks out for itself."

73. Further, s 13 of the Act sets out a Code of Conduct which is reasonably detailed but addresses the issue of information disclosure in a limited way, namely in s 13(10). Thus, reg 2.1 does not travel outside what was in contemplation of, and is not inconsistent with, the Act. The conduct proscribed by the reg 2.1 is conduct closely related to the employee's duty as such and does not extend the operation of the Act, for example, into areas unrelated to employment in the APS or an employee's conduct as an employee. For example, a regulation prescribing whom an APS employee could marry or the church one could attend would regulate conduct but clearly be invalid in this way.

74. Further, the regulation does not add to the means in the Act of carrying into effect what is enacted; it fills out the Code of Conduct, but does not change its nature or way of operating. It extends the reach of behaviour regulated but does so in a way that is consistent with the means specified in the Act and, indeed, with the common law of employment.

75. It seems to me, however, that there is an even more fundamental answer to the accused's contention. The authorities referred to above have addressed the construction of a general empowering provision, that is one that permits regulations to be made prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. This is certainly one head of power in s 79(1) of the Public Service Act, namely s 79(1)(b).

76. It seems to me, however, not to be the power under which reg 2.1 has been made. It seems to me that the actual power is in s 79(1)(a) which empowers regulations to be made "prescribing matters (a) required or permitted by this Act to be prescribed". Section 13(13) provides for regulations to prescribe "other conduct" with which "[a]n APS employee must comply". This is the kind of permission that is referred to in s 79(1)(a).

77. Such regulations do not have to pass the same test of validity as those prescribed under s 79(1)(b), though they would still have to fall within a proper construction of the breadth allowed by the permission (or requirement) granted.

78. Nevertheless, such regulations, expressly permitted or required to be made, can be very wide. Indeed, if so drawn, they can modify the Act itself: Something Better Pty Ltd and Ors v Pyramid Building Society (In Liq) [1996] VICSC 5; (1996) 135 ALR 297 at 303; O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440 at 447-450.

79. In this case, there is nothing in the Act, and in s 13(13) in particular to suggest that the conduct referred to must be limited in some way, for example, by the items of conduct referred to in s 13 itself. The permission is at large and, given the nature of the subject matter, namely conduct, it is entirely understandable that a wide flexibility would be envisaged and intended. To take but on example, text messages by mobile phone would have been virtually unknown in 1999. There may well be conduct relating to their use which should be regulated in a Code of Conduct. This provision would allow that and I see no reason why it should not.

80. This attack on the validity of reg 2.1 also fails.

81. I have carefully considered all challenges to the validity of the regulation and have found none to be sustainable. Accordingly, I dismiss the application and hold that reg 2.1 may be relied upon in evidence on counts 3 to 7.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: Commonwealth Director of Public Prosecutions

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