SD
FOR MEDIA 30 August 1983
I was provided with the attached Opinion by the Attorney-
General late yesterday.
,1,) AURTRA L A
SENATOR THE HON. GARETH EVANS ATTORNEY-GENERAL
PARLIAMENT HOUSE
CANBERRA A. C. T. 2600
29 August 1983 GE: AOB
The Hon R J Hawke AC MP
Prime Minister
Parliament House
CANBERRA ACT 2600
Dear Prime Minister,
on 14 July you requested my opinion as to whether the
conversation on the evening of 21 April 1983 between the
then Special Minister of State, the Hon M J Young, and
Mr E J Walsh, may have involved the commission of an
offence under the Crimes Act 1914.
On 18 July I wrote to you stating that in my view with
which the Solicitor-General, Sir Maurice Byers QC,
concurred the only relevant provision of the Crimes Act
was s. 79( 3). I said that the possibility of a
contravention of that sub-section could not be excluded,
but that it was not possible to give any concluded opinion
on the matter until more information as to the content of
the conversation came to light, an~ d that for all practical
purposes that would not occur until the relevant witnesses
had given their testimony before the Royal Commission.
The situation now is that the relevant testimony from
Messrs Young, Walsh and Matheson has all been given and
made available to me. ( The last of the publicly released
parts of the transcript did not ( become available until 22
August; on that day Mr Justice' Hope also made, on the
application of Government counsgl, an order releasing to
me, the Solicitor-General and certain senior officers of
my Department the relevant partt of the " in confidence"
transcript.) As a result of certain conflicts in that
testimony, however, the factual situation remains less
clear at this stage than I thought it would be when I
wrote to you on 18 July.
Because of that uncertainty, there is much to be said for
my further opinion to you awaiting the findings of His
Honour on this issue. But because of the time which has
already elapsed and the natural desire of everyone
2
concerned to have the question of criminal liability
clarified as soon as possible so far as it is within my
capacity as Attorney-General to do so I have felt
obliged to give you, without further delay, the opinion
you sought on the basis of the material now to hand. My
task, you will appreciate, has not been an easy one.
The Facts
It is common ground that Mr Young conveyed certain
information to Mr Walsh on the evening of 21 April.
Mr Young has given evidence that he informed Mr Walsh that:
the Government had that day been looking at a
problem involving Messrs Matheson, Combe and
Ivanov ( or " a Russian"), and that he ( Mr Walsh)
ought to be careful in his dealings with the
Commercial Bureau of Australia; and
at the Ministers' meeting in question, some
antagonism had been expressed toward Mr Matheson.
Mr Young was asked in cross-examination whether he had
said that there had been ASIO tapes or transcript at the
meeting; he replied that he was unclear on that and could
not recall making mention of it. He was not specifically
asked whether he had said to Mr Walsh that Ivanov ( or the
Russian) was to be expelled.
Mr Walsh's account of the 21 April conversation was to the
same general effect as Mr Young's, but added three
specific matters of significance, viz. that Mr Young had
said: " it had been an important meeting and a Russian
was going to be expelled the next day";
" Combe appeared to have had an association with
the Russian who was to be expelled"; and
" there were tapes and everything there, ASIO I
think he said ASIO tape".
Mr Matheson gave evidence as to what Mr Walsh had told him
on 24 April as a result of what he ( Walsh) had learned at
a " drinks meeting" on the evening of 21 April: this
account is similar to the account of the Young-Walsh
conversation in Mr Walsh's evidence, but adds in turn
further matters, e. g. that the Director-General of ASIO,
Mr Harvey Barnett, was present at the Ministers' meeting.
For present purposes, however', I have set aside
Mr Matheson's evidence. Not only would it be technically
inadmissible in any proceedings against Mr Young ( I share
-3
the view of the Solicitor-General in his appended opinion
in this respect, although a contrary view based on the
principle stated by Knox CJ and Dixon J in Morgan v.
Babcock and Wilcox Ltd ( 1929) 43 CLR 163, at p. 173, is
possibly arguable), but it would appear to be in any event
of little probative value: by the time Mr Walsh spoke to
Mr Matheson, Ivanov had been expelled and Mr Combe had
himself spoken to Mr Matheson, and Mr Walsh acknowledged
in cross-examination that it was " highly probable" that
what he had told Mr Matheson was a combination of what
Mr Young had said plus inferences or conclusions drawn
from this.
In ascertaining the facts of this matter, a choice is
ultimately forced between Mr Walsh's account, which would
certainly be admissible as evidence in any subsequent
proceedings, and Mr Young's account, which would be
admissible to the extent that he chose to make it so.
Either the conversation was, as Mr Young recollected, very
general in its terms mentioning the characters involved
in the ministerial deliberations and little else or, as
Mr Walsh recalled, it went into specifics, at least as to
the imminent expulsion, the existence of an association
between Mr Combe and the Russian, and the existence of
ASIO tapes. On this difference, as will appear below, a
good deal may well depend when it comes to the application
of s. 79( 3).
I should add that I have also noted, as possibly relevant
to the final determination of these factual questions,
Mr Young's evidence that he told Mr Rod Cameron ( and this
was confirmed by Mr Cameron' s evidence) before lunch on 22
April that the Government was going to " kick out a
Russian", and repeated this to -the luncheon group
including both Messrs Cameron and Walsh during the lunch
itself. This, however, cuts both i. ays in its implications
for the conversation of 21 April: it may be thought to
assist Mr Walsh's account to the extent it makes more
likely some reference by Mr Young to the expulsion, but it
also assists Mr Young's account to the extent that it
suggests Mr Walsh may well have confused the two occasions
in his later recollection.
It is neither necessary nor apprctpriate for me to weigh,
balance and endeavour to decide the factual matters in
issue. For present purposes, I shall proceed on the basis
that findings in accordance with 4ither Mr Young's account
or Mr Walsh's account are open.
The Law
I remain of the view that the' only possibly relevant
provision in the Crimes Act is s. 79( 3). This reads in
relevant part as follows:
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" 79( 3) I f a person communicates prescribed
information, to a person, other than
a person to whom he is authorized to
communicate it; or
a person to whom it is, in the interest of
the Commonwealth or a part of the Queen's
dominions, his duty to communicate it,
or permits a person, other than a person referred to
in paragraph or to have access to it, he
shall be guilty of an offence.
Penalty: Imprisonment for two years."
' Prescribed information" is defined, in turn, in s. 79( l)
in relevant part as follows:
" 79( l) For the purposes of this section
information is prescribed information in relation to a
person, if the person has it in his possession or
control andit has been entrusted to the person by a
Commonwealth officer or a person holding
office under the Queen or he has made or
obtained it owing to his position as a
person who is or has been a Commonwealth
officer;
( ii) who holds or has held office under the
Queen;
and, by reason of its nature or the
circumstances under w'. hich it was entrusted
to him or it was made or obtained by him or
for any other reas9n, it is his duty to
treat it as secret;
The crucial legal question is whether Mr Young can be said
to have had a " duty" within the meaning of s. 79( l)( b) not
to disclose to Mr Walsh what he d~ id disclose. As to the
other legal tests that would have to be satisfied, it
seems clear ( though not necessdrily completely beyond
argument in every case) that wha~ t was communicated was
" information" within the meaning of the elaborate
definitions in s. 77( 1); that Mr Young had it in his own
possession owing to his position -inter alia, as a person
holding " office under the Queen' within the meaning of
that expression in that Mr Walsh was not
someone who fell into either of the exceptional categories
of recipient spelt out in s. 79( 3)( a) and and that by
being communicated to Mr Walsh, albeit in confidence, the
information in question was not being treated as secret'
within the meaning of
The duty to treat information as secret in s. 79 is
one which arises for a person
" by reason of its nature or the circumstances under
which it was entrusted to him or it was made or
obtained by him, or for any other reason"
The language here, which directs attention to the
particular context in which information is acquired, is in
marked contrast to that which appears in s. 70( 1) of the
Crimes Act:
" 70( 1) A person who, being a Commonwealth officer,
publishes or communicates, except to some person to
whom he is authorized to publish or communicate it,
any fact or document which comes to his knowledge, or
into his possession, by virtue of his office, and
which it is his duty not to disclose, shall be guilty
of an offence."
Professor Sawer ' has argued in a recent newspaper article
( Canberra Times, 10 August 1983) that the duty referred to
in s. 70 must mean a legal duty, i. e. one clearly imposed
by some other statutory provision or rule of common law.
He suggests that criminal courts would be very reluctant
to construe an offence punishable by two years in gaol as
extending to situations where the duty is merely a " moral
obligation arising from convention, reasonable expectation
and honourable relations between colleagues". This
argument seems to me compelling in relation to s. 70, where
the direction to the courts to determine whether or not a
duty exists is stark and unadorned. But it is rather less
so in relation to s. 79, to which Professor Sawer does not
refer in the article cited.
The difficulty is that in the latter section the courts
are specifically directed to take 6ccount of, inter alia,
" the nature of the information" or " the circumstances
under which it was obtained". It may be possible to read
down s. 79 and confine it to situations where there is some
explicit pre-existing legal duty on the person in
question, whether derived f rom. particular statutory
prohibitions, public service regulations, employment
relationships, express or implied contractual obligations,
fiduciary duties or something of that kind ( as Professor
Sawer has elsewhere suggested). But while the section so
read down would still have some scope for operation, such
a reading would give little or no effect to the statutory
language requiring the court to look at the circumstances
of the particular case.
There may well be public policy considerations which
should be weighed in the balance in determining whether
s. 79 could ever have been intended to apply to Cabinet
-6
Ministers in respect of Cabinet or Cabinet Committee
business. Some of these are spelt out by Professor Sawer
in the article mentioned. But while these may constitute
additional grounds for concluding that the expression
" Commonwealth officer" in s. 70 is not intended to include
" Minister of the Crown", I believe they have much less
force in the context of s. 79, where the reference to those
holding " office under the Queen" is certainly broad enough
to include Cabinet Ministers, but where the direction to
the courts to take account of context in determining the
existence or otherwise of a " duty" is also flexible enough
to accommodate the kind of public policy concerns that
naturally arise if Cabinet Ministers are to be within the
scope of the section.
While it would be clearly nonsensical not least because
of the array of other sanctions that operate in
Westminster parliamentary systems for Ministers to be
subjected to two years gaol for, say, the premature
disclosure, inadvertently or even deliberately, of some
statutory appointment, it is difficult to see an
overriding public policy reason why a Minister should not
be as criminally liable as any other recipient of secret
information for disclosing the location of a convoy in
wartime. In my view, then, although the matter is by no means
completely beyond doubt, information given to Cabinet
Ministers in that capacity may be such as to create a duty
not to disclose it, breach of which may be punishable
under s. 79( 3): but everything depends on the nature of
the information, and the circumstances in which it is
obtained. The language elsewhere in s. 79 for example,
the reference to purposes " prejudicial to the safety or
defence of the Commonwealth"~ in sub-section suggests
that the kind of information mos likely to attract the
operation of the section would be sensitive material
directly related to defence and security.
Applying this approach to the, present matter, the
significance of the difference bel~ ween Mr Young's account
and Mr Walsh's account of their. conversation should be
readily apparent.
If the conversation was as limited in scope as Mr Young's
recollection suggests, then it would be difficult to argue
that s. 79( 3) had application. ' The problem involving
Messrs Matheson, Combe and Ivanov could well have been
merely about some trade matter, and in that case the
significance of the information passed on would have been
commercial or economic rather than having anything to do
with matters of national security. While the disclosure
of information of this kind might or might not properly
attract other sanctions, criminal penalties would hardly
-7
appear appropriate. It is likely that a judge would hold,
as a matter of law, that s. 79( 3) had no application to
such a situation; and if the matter did go to a jury, an
acquittal would be overwhelmingly probable.
If, on the other hand, Mr Walsh's account were to prevail,
the question of the application of s. 79( 3) would be, in my
view, much more finely balanced. As a matter of law, it
is possible that an offence may have been committed. The
information in question would be seen to squarely relate
to national security and foreign affairs matters of great
delicacy and sensitivity, and of such a nature that its
premature disclosure would put at risk ongoing security
and intelligence operations. While obviously still not in
the same extreme category as the " 1convoy in wartime"
example, nonetheless it would be much more difficult for
either judge or jury to dismiss the existence of the
necessary " duty".
In formulating the above views, I have had the benefit of
consultations with, and a formal written opinion from, the
Solicitor-General, who has, in turn, discussed the legal
issues with Mr M Gleeson QC, senior counsel for Mr Young.
Sir Maurice' s Opinion, with which I generally concur, is
appended to this letter.
The Decision to Prosecute
The decision as to whether or not to institute a criminal
prosecution always depends in the first instance on the
sufficiency of the evidence: whether it is such that it
is more likely than not that the prosecution will result
in a conviction. If the evidence in the present matter
went no further than Mr Young's o~ in account, there would
be no sufficient basis on which to proceed. Mr Walsh's
evidence, however, makes it necessary to consider the
matter further, and the following idiscussion proceeds, as
it must, on what from Mr Young's point of view is this
' worst case" assumption.
In my letter of 18 July, I emphasised that merely because
criminal proceedings could possibly lie in a particular
case, it does not follow that they should be instituted.
I retain as Attorney-General a * discretion as to the
conduct of all Commonwealth criminal prosecutions, and may
decline to prosecute if in my view the public interest so
requires. Moreover, in the . specific context of
prosecutions under Part VII of the Crimes Act, my consent
is required before any proceedings can be instituted
In considering this question I have had regard, as I
foreshadowed in my previous letter, to the guidelines
document, Prosecution Policy of the Commonwealth, tabled
8-
in the Parliament in December 1982 by the Hon Neil Brown
QC on behalf of the then Attorney-General, Senator Peter
Durack QC. These guidelines state that it has never been
the rule in Australia or in the United Kingdom that all
offences brought to the knowledge of the authorities must
be prosecuted, and identify a series of factors that can
properly be applied in determining whether or not to
prosecute. The most obviously applicable of these factors
( I exclude for present purposes such considerations as
" youth, age or special infirmity") are the following.
Obscurity of the Law. This element is clearly
present here, as is evident from the terms of both the
Solicitor-General's opinion and my own: the issue of
criminal liability, in our view, comes down ultimately to
an assessment of what is required by the " nature" of the
information, the " circumstances" of the case, and " any
other reason" We are aware, moreover, that at least one
distinguished constitutional expert ( Professor Sawer) has
expressed a view of the law contrary to our own.
Need for Deterrence. Criminal prosecution becomes
less necessary to the extent that other sanctions of
deterrent value attach to the behaviour in question. In
the official secrets area, sanctions that have been
traditionally regarded as applicable and appropriate to
Ministers are not those of the criminal law but the
political sanctions of resignation or dismissal. The
sanction of resignation has already, of course, applied in
the present case.
It is worth noting in this respect that in Australia no
prosecution has ever been instituted under the official
secrets provisions of the Crimes Aqt against a Minister or
ex-Minister. The same is true in Britain: no prosecution
under the Official Secrets Act hias ever been instituted
against a Minister or ex-Minister ( Report of the Committee
of Privy Councillors on Ministerial Memoirs ( 1976, Cmnd.
6386)). It has been stated, moreoever, that the
obligation of Cabinet secrecy has often been disregarded
with impunity ( Halsbury's Laws ofA England, 4th ed., vol.
8, p. 702). No similarly weighty authority for this latter
proposition is available in Aust , ralia, but nor would it
appear to be needed.
Seriousness of Offence and Degree of Culpability.
Although the disclosure of the specific matters described
in Mr Walsh's account would potentially have been very
serious in terms particularly of what it would reveal
about, and the way in which it might have interfered with,
security operations it does not appear, in the event,
that any such damage occurred. Nor was there, obviously,
any intention to harm Australia's defence, security or
international relations.
9-
One other factor which I have felt it proper to take into
account, particularly in the context of any exercise of my
statutory role under s. 85, is that a conviction under
s. 79( 3) of the Crimes Act, which is punishable by two
years imprisonment, would result, even if no actual gaol
term were imposed, in Mr Young's automatic
d~ isqualification from the Parliament. This follows from
the draconian terms of s. 44 ( ii) of the Constitution:
" Any person who
( ii) has been convicted and is under sentence, or
subject to be sentenced, for any offence
punishable under the law of the Commonwealth or
of a State by imprisonment for one year or longer:
shall be incapable of being chosen or of sitting as a
senator or member of the House of Representatives."
This gives further weight to the argument that the
traditional political sanctions are the appropriate ones
for all but the most extraordinary and dangerous
ministerial breaches of official secrecy.
Taking all these considerations into account ( and also
bearing in mind, in turn, their likely impact on a jury in
the event that a matter did go to trial), I have concluded
that the case is not one in which criminal proceedings
would be appropriate in the public interest.
To the extent that issues of larger public interest are
involved in this matter, they are, already being examined
by His Honour Mr Justice Hope pu1rsuant to his present
terms of reference. While it may be that some of the
issues I have had to consider, fol~ lowing your reference to
me, will also be considered by the' Royal Commissioner, my
decision on the particular question of criminal
prosecution for which, as Attorney-General, I have the
ultimate constitutional, and in the case of s. 79,
statutory, responsibility shoula not be regarded as in
any way pre-empting His Honour's findings on the matters
in issue before him. Certainly my response to your
request has not been so intended.
Yours sincerely,
GARETH EVANS
POSSIBLE PROCEEDINGS UNDER
SECTION 79( 3) OF THE CRIM. ES ACT
OPINION
My opinion is sought whether on the evidence given
before the Royal Commission on Australia's Security and
Intelligence Agencies the view is open that the then Special
Minister of State, the Honourable M. J. Young, may have been
in breach of section 79( 3) of the Crimes Act.
2. Mr E. J. Walsh gave evidence before the Royal
Commission of a conversation which he said he had with the
then Special Minister of State, the Honourable M. J. Young,
on the evening of 21 April 1983 and of a subsequent
conversation with Mr Matheson which he conceded " highly"
probably was a combination of some things Mr Young had said
to him and certain inferences or conclusions Mr Walsh had
drawn from things that were said to him 2952). 1
accordingly disregard it. There is no substantial ground
to believe that Mr Matheson's account of Mr Walsh's conversation
with him would be admissible in proceedings against
Mr Young. Section 6DD of the Royal Commissions Act makes
Mr Young's evidence before the Comr~ ission inadmissible
against him in proceedings under section 79( 3) of the Crimes
Act. The only immediately relevant account therefore is
that of Mr Walsh. I shall later discuss what Mr Young said.
3. 1 should in fairness add here that Mr Young's account
of his conversation differs markedly from Mr Walsh's as to
the matters disclosed and that obviously I cannot, nor do I
attempt to, choose between them. / 2
2.
Mr Walsh's Account
4. M'r Walsh said that Mr Young told him on the evening
of 21 April that there had been an important meeting and that
a Russian was going to be expelled the following day; that
Combe appeared to have had an association with the Russian
who was to be expelled; that Matheson ( or the Commercial
Bureau) had in fact got a bagging and had been mentioned
several times at the meeting and that Mr Young said something
like there were tapes and everything there ASIO tapes he
thought was said. Mr Young had begun by saying that Walsh
should be careful in dealing with Matheson or with Commercial
Bureau and by advising him ( Walsh) that his ( Young's) remarks
were to be regarded as confidential.
Section 79 of the Crimes Act
The first question is the meaning of this difficult
provision. Sub-section provides, so far as is relevant,
" 79. If a person communicates..
prescribed information to a person,
other thana
person to whom he is authorized
to communicate it; or I
a person to whom it is, in the
interest of the Commonwealth or a
part of the Queen's dopninions, his
duty to communicate it,
or permits a person, other than a person
referred to in paragraph or to
have access to it, he shall be guilty of
an offence
" Information" is defined in section 77( l) to mean information
of any kind whatsoever whether true or false and whether
in a material form or not and includes an opinion and
a report of a conversation. / 3
6. By sub-section of section 77 information
may be conmmunicated whether what is communicated consists
of the whole or part of what is obtained or whether the
information itself or only the substance, effect or
description of the information is communicated. The
expression " prescribed infor-mation" is defined by section
79( l), the material parts of which are as follows:
For the purpose of this section
information is prescribed information in
relation to a person, if the person has
it in his possession or control and
it has been entrusted to the person
by a Commonwealth officer or a person
holding office under the Queen or he
has made or obtained it owing to his
position as a person
Wi who is or has been a Commonwealth
officer;
( ii) who holds or has held office under
the Queen;
( iii) who holds or has~ held a contract
made on behalf o~ f the Queen or the
Commonwealth;
( iv) who is or has been employed by or
under a person to whom a preceding
sub-paragraph of this paragraph
applies; or
acting with the permission of a
Mini ster
and by reason of its nature or the
circumstances under which it was entrusted
to him or it was made or obtained by him
or for any other reason, it is his duty
to treat it as secret; 1 / 4
7. One of the issues before the R~ oyal Commission is
'( was there any unauthorised or improper disclosure by any
and what Minister of the information made available to the
NIS Committee concerning the relationship between Combe and
] ivanov before 11 May": Issue No. 17. As it seems to me
nothing has appeared which suggests that Mr Walsh was a
person to whom either paragraph or of sub-section
applies. And it is reasonably clear that Mr Young obtained
information relating to Ivanov' s activities and ASIO's
surveillance at the meetings of the National Intelligence
Security Committee of Cabinet owing to his position as a
person who held office under the Queen ( section 79 ( ii)
of the Crimes Act), for his membership of that Committee was
due to his being a Minister of the Crown.
8. The questions in the present case turn upon whether
that information and the decision that Ivanov should be
expelled was by reason of its nature or the circumstances
under which it was obtained or for any other reason such that
it was his duty to keep it secret.
9. Paragraph of sub-section requires more than
that a Minister person who holds office under the Queen")
obtain the information owing to his position, for, as well,
the information by reason of its nature or the circumstances
under which it was obtained or for some other reason must
raise a duty to treat it as secret.
Should a Minister in time of war obtain information
of proposed troop movements, the nature of the information
would raise the duty. And it would nonetheless raise it in
the absence of any other statutory or common law obligation
to keep it secret. By secret is meant " kept from public
knowledge or from the knowledge of specified persons":
Shorter Oxford Dictionary Vol. 2 p. 1924. And information
innocuous in itself may be obtained in circumstances where
the effect of its publication is sufficient to raise the duty;
for example, a decision to extend the duration or change the
conditions of issue of patents of a particular class by
amendments to the Patents Act where disclosure would be
unfair. The essence of this paragraph of sub-section ( 1)
lies in the -information obtained. It is not merely the
communication of a Cabinet decision or breaches of Cabinet
confidentiality. The fact that information was given to
Ministers is one of the factors relevant to determine whether
the duty was raised, but'it is one factor only. While
decisions of the Cabinet may amount to prescribed information,
they are not, irrespective of their subject matter, of
necessity so.
11. This means that the standprd for determining whether
a duty exists is set by the sub-section and hence, while a
duty imposed by another law or by ap obligation of confidence
may be sufficient ( because worked on by the sub-section) it
is not essential. The decision of -the Western Australian
Supreme Court in Cortis R. / 19797WAR 30 by comparing the
language of section 81 of the Criminal Code with section 79( l)
of the Crimes Act rather supports this view. See also Grant
v. Headland ( 1977) 17 ACTR 2 9 at 31. / 6
12. It may, 1 think, be right to say of section 70 of
the Act that some exterior obligation must be found either in
Statute or the common law which raises the " duty not to disclose",
breach of which the two sub-sections punish. But that
section, unlike section 79, contains no machinery by which the
duty must be ascertained. The crucial point of distinction
between them is that section 79 contains in sub-section ( 1)
the statement of the conditions which raise the duty while
section 70 assumes its exterior existence.
13. I should add that I do not think Mr Young's oath of
secrecy as an Executive Counicillor is here relevant. It may
be that that oath could be understood, where Cabinet discussion
preceded formal recommendation to the Council, as extending to
those discussions. But whether or not this is so,. nothing of
that sort here occurred.
14. Arnd, of course, a Minister must have a wide discretion
as to the persons to whom-, he may reveal information on matters
within his constitutional responsibiaity. The present
disclosure, as I understand it, does not fall within that class.
Conclusion It is now necessary to refer to Mr Young's evidence
before the Commission. This is because, while section 6DD of
the Royal Commissions Act provides that a statement or
disclosure made by a witness in the course of giving evidence
before a Commission is not admissible against him, it does
not exclude him from using what he has said should he desire
and be able to do so. Mr Young told Mr Walsh in strictest
confidence that the Government had that day been looking at a
/ 7
problem concerning Mr Matheson, Mr Combe and lvanov or a
Russian and that Walsh ought to be very careful. He went on
to say that one of the Ministers had evidenced antagonism
towards Mr Matheson. It will be seen that this account differs
markedly from that of Mr Walsh.
16. I have endeavoured to point out that the duty to
keep secret, in my view, extends to the information placed
before the Cabinet Committee relating to Mr Ivanov' s
activities and ASIO's surveillance of those activities. I
have said that because it is those aspects of the information
which indicated the danger that Mr Ivariov posed or could be
thought to pose to the country's security and disclosed the
steps taken to prevent it.
17. How the Ministers should behave towards Mr Combe
is no more significant than how they should behave towards
any other lobbyist. What is significant for section 79( l) is
, the information placed before the Cabinet Committee.. it is
the information to which the duty attaches and it does so because
of the nature of that information. I think, therefore, that
should Mr Walsh's evidence be accepted it would be open to a
jury to find that Mr Young had committed a breach of section
79( 3).
18. The only relevant part of Mr Young's evidence is
his indication that the Government had been looking at a
problem which concerned Ivanov, Coinbe and Matheson and that
Walsh should be careful. I think it reasonably clear that
if Mr Young's evide nce is accepted, the jury would acquit him
/ 8
even though technically they would not be bound to do so.
19. While, therefore, the question is one solely for
the Attorney-General, on this ground without more I think
that no proceedings should be taken against Mr Young.
August 1983 M. H. BYERS
Solicitor-General