Timmins, Peter --- "Australia: a modern democracy marred by secrecy?" [2016] PrecedentAULA 64; (2016) 136 Precedent 30

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AUSTRALIA: A MODERN DEMOCRACY UNDERMINED BY SECRECY?

By Peter Timmins

The Australian Federal Police (AFP) raided the office of Labor frontbencher, Senator Steven Conroy, and a staff member of another shadow minister in Melbourne in the midst of a general election campaign in May. These were not the sort of events expected as our democracy went about the essential business of electing a government.

On the hustings, the Opposition suggested intrigue and possibly direct political involvement.

Ministers said ‘we know nothing.’

The AFP explained^[1] that the raids were part of an ongoing investigation initiated in December 2015, the investigation was independent of government, decisions concerning the raids had been made by the AFP alone and were part of an investigation concerning allegations of unauthorised disclosure of Commonwealth information following a referral from the National Broadband Network Company (NBN Co).

The investigation followed a series of leaks of information to the media and reports of significant cost blowouts at NBN Co as well as the cost effectiveness of a new ‘skinny fibre’ technology that lasts longer than copper, delivers better internet speeds and is more economic but not part of NBN Co plans.

PUBLIC RIGHT TO KNOW

Michael Bachelard, writing in the Sydney Morning Herald,^[2] had no doubts about the disclosures being morally justified and the public’s right to know:

‘The news stories about the failings of Malcolm Turnbull's National Broadband Network which led to last night's police raids were squarely in the public interest. Clearly these stories were embarrassing to the government in general, and the Prime Minister in particular. ...Our money is being spent to build the NBN. Billions of dollars of it. It's being spent on perhaps the most important piece of public infrastructure currently under construction in this country. The form and nature of that infrastructure, the extent to which it will future-proof our economy and society, are matters we should legitimately be told about. That's the case even if the government of the day – the NBN's only shareholder – is too embarrassed by its own policy to let us in on its dirty little secrets.’

Bachelard reflected the sentiment in the court of public opinion but there were other views.

NBN Co-Chairman Dr Ziggy Switowski^[3] publicly described the leaks as part of a pattern and that it amounted to ‘ideologically motivated theft’.

When it emerged that the Secretary of the Department of the Prime Minister and Cabinet had counselled Dr Switowski against public engagement on the issue during the election campaign because such conduct contravened the Caretaker Convention, the Prime Minister described the chairman as a distinguished leader doing a remarkable job whose decision to enter the public debate was understandable.

At the time of writing, no charges arising from the NBN Co leaks or the raids have been laid.

UNAUTHORISED DISCLOSURES; A CRIMINAL OFFENCE

Unauthorised disclosure of information by a current or former Commonwealth officer is a criminal offence subject to two years’ imprisonment.

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

‘(1) 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.

(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.

Penalty: Imprisonment for 2 years.’

Section 70 remains highly controversial. Recommendations about the need to bring a criminal offence more in keeping with the 19^th century into the 21^st have consistently been ignored by successive governments.

A high-profile s70 case involved former Customs official, Allan Kessing.^[4] In 2007, The Australian reported on serious security failings at Sydney Airport, drawing on internal reports prepared by Kessing in Customs that had not been acted upon for years. Kessing was charged and convicted under s70 and given a nine-month suspended sentence.

Following the publicity from this case, the Howard government moved promptly to act, commissioned an inquiry and spent hundreds of millions to fix problems some insiders had known about for years but of which millions of travellers had previously been blissfully unaware.

Someone clearly passed documents to journalists at The Australian. Kessing, who on legal advice did not give evidence at his trial, maintains it was not him.

Kessing subsequently publicly admitted he had briefed a staffer in the office of Anthony Albanese about his concerns and talked to Albanese himself. Months later, information from the reports appeared in The Australian.

Kessing was refused a pardon in 2012.^[5] Then Justice Minister, Jason Clare, said the involvement of Mr Albanese's office, if proved, would not establish Mr Kessing's innocence. But because he did not reveal the link with Mr Albanese at his trial, Mr Clare had been advised that ‘as a matter of public policy, it is not appropriate for the royal prerogative of mercy to be exercised to pardon a person who seeks to raise a doubt about his or her conviction by raising matters that were deliberately not raised, and tested, by them at trial’. Mr Kessing's assertion that he was innocent of the charge of which he had been convicted meant ‘the claim that the leaking of the reports was in the public interest is irrelevant to a consideration of your moral or technical innocence of the offence’.^[6]

Although he maintains his innocence, many regard Kessing as a modern-day hero.

WHISTLEBLOWER PROTECTION

The federal government was late to recognise that whistleblowers play an important role and should be encouraged and protected. It was too late for Allan Kessing.

Wastage of public funds is one type of wrongdoing covered by whistleblower protections established by the Public Interest Disclosure Act 2013 (Cth) but the leaks of information in the case of NBN Co seem unlikely to be disclosures of the requisite kind, based on the prescribed definitions and procedures.

A public disclosure will be protected only in very limited circumstances and usually on the condition that internal procedures have first been followed.

Disagreements that relate only to government policy (and related expenditure) that may characterise these leaks are not protected in any event.^[7]

LONG TRADITION OF SECRECY

Recognition of the public’s right to know is not found in the Magna Carta.

Historically in the Westminster system, information held by the Crown belonged to the Crown. Disclosure was at the discretion of the Crown and its servants.

In that tradition, prohibitions and penalties for disclosure featured in the first sitting of the Commonwealth Parliament and were incorporated in the Post and Telegraph Act 1901 (Cth). A version of s70 based on a Queensland Act of 1899 has been on the Commonwealth statute book since the passage of the Crimes Act.^[8]

The original formulation remained unchanged until 1960, when it was amended to extend to former Commonwealth officers. Somewhat minor amendments have been made on three occasions since 1960.

SECRECY AND OPEN GOVERNMENT

The principle that government-held information should be disclosed only at the discretion of the government began to weaken in the 1970s.

Gough Whitlam campaigned in 1972 on a plan to end government secrecy by introducing freedom of information legislation.

Malcolm Fraser finally overcame government resistance to the idea, presiding over the commencement of the Freedom of Information Act 1982 (Cth) (FOI Act).

The FOI Act enshrines a public right to know, subject to a wide range of exemptions. In theory the public has a right to know what government knows unless there is a good reason that justifies non-disclosure.

The High Court two years earlier, in 1980, had enunciated the importance of the public interest in an informed community and its discussion of public affairs:

‘The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.’^[9]

FOI decision-makers are expected to implement the law honestly and in good faith by following formal processes to make decisions about access applications as required by law, decisions that may be subject to internal and external review.

In reality, leadership on transparency and accountability at high levels of government has rarely been encouraging.

Access applications can involve costly, time-consuming, complex quasi-legal battles with a minister or government agency, particularly when the inner workings of government are probed.

FOI Mark 2, reflected to some degree in amendments to the FOI Act in 2010, emphasises provision of informal access to documents where practicable, and proactive publication of information likely to be of interest to a wider audience than one applicant.

However, while freedom of information heralded a new era of more open government, it did not resolve the conflict with continuing requirements for secrecy. Laws that include a secrecy provision remain untouched. Where FOI rights of access intersect with those laws, secrecy prevails.

In its original form, an FOI exemption extended to ‘an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications’.^[10]

In 1991, the scope of the exemption was significantly narrowed to an exemption where:

‘(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(b) either:

(i) that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.’^[11]

More than 65 secrecy provisions from over 28 Acts and one sub-regulation are subject to the FOI secrecy exemption through inclusion in Schedule 3, and at least four provisions in other Acts expressly apply s38 but are not listed in the schedule.

The essence of s70 has remained intact.

Dr Moira Paterson commented on the effect overall:^[12]

‘[I]t is important not to ignore the chilling effect of the large number of other existing secrecy laws.. General secrecy provisions have a very wide interpretation and effectively prohibit the revelation, whether deliberate or accidental, oral or in writing, of anything that is secret. Liability does not depend on the nature or sensitivity of the information in question and reflects an outdated view that the general public has no legitimate concern about the processes of government.’

EXCESSIVE SECRECY CHALLENGED BUT NOT ADDRESSED

In 1991, the Review of Commonwealth Criminal Law,^[13] chaired by former High Court Chief Justice, Sir Harry Gibbs, recommended that s70 be repealed and replaced with provisions under which the application of penal sanctions to unauthorised disclosure of official information is limited to specific categories of information no more widely stated than is required for the effective functioning of government. No action was taken.

In 1995, the Australian Law Reform Commission (ALRC) report Open Government: a review of the federal Freedom of Information Act 1982 (ALRC 77) made over 100 recommendations, none of which was acted upon during the years of the Howard government. The recommendations include ‘that the government implement the recommendations of the Gibbs Committee as soon as possible’. In addition, government should ‘re-commence a thorough review of all “specific” federal secrecy provisions for the purpose of ensuring the removal of any barriers to the fulfilment of the objectives of the FOI Act. Secrecy provisions should contain standards of protection no broader than those provided in the FOI Act.’

In 2009, the ALRC report Secrecy Laws and Open Government in Australia (ALRC 112) identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences, and drew attention to lack of consistency and coherence in the statutes that sought to safeguard government information.

The commission recommended ‘a new and principled framework striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential’.^[14]

Specifically, it recommended repeal of catch-all provisions in the Crimes Act such as s70 and the introduction of a new general secrecy offence limited to disclosures that harm essential public interests. The report set out suggested best practice principles to guide the review, repeal and amendment of existing secrecy provisions.

As with Gibbs, in relation to s70 and previous ALRC reports on secrecy laws generally, ALRC 112 disappeared into the Attorney-General’s Department (Department).

There has been no formal response to the reports by government, virtually no mention in parliamentary proceedings and no action to implement recommended reforms.

A freedom of information application^[15] to the Department in 2013 for the most recent document summarising work undertaken or still to be undertaken on the report’s recommendations was met with a refusal on grounds of deliberative process. The one document held, a briefing note to the Secretary at the time, was already 12 months old. The Department maintained this position for a year while a review application to the Office of Australian Information Commissioner (OAIC) waited in a long queue. When the OAIC communicated a preliminary view that the document was not exempt and should be disclosed, the Department agreed to release the document.

The August 2012 briefing note is a prescription for doing nothing, exactly what appears to have happened since:

‘...pursuing legislative reform to secrecy offences will require extensive consultation with other agencies. Secrecy law amendments would also be controversial in the public sphere –in which work on secrecy offences (particularly subsequent disclosure offences) may be linked to issues such as Wikileaks –and among agencies which may resist the removal of specific secrecy provisions if they do not consider proposed reforms to the general secrecy offence would adequately meet their needs.’ ^[16]

REFORM DECADES OVERDUE

Section 70 and an incoherent statute book riddled with other secrecy provisions comprise a set of laws seriously out of line with contemporary thinking about open, transparent government.

Reports by Gibbs and the ALRC cite the general catch-all nature of s70 which applies regardless of the nature of the information, whether trivial or of great consequence. There is no requirement for the prosecution to demonstrate anticipated or actual harm to any identifiable public or other interest. There are no available defences.

The ‘crime’ is punishable by imprisonment of up to two years whereas civil penalties or disciplinary measures for some conduct of the kind encompassed would seem appropriate if necessary.

The ALRC also recommended that the general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:

• damage the security, defence or international relations of the Commonwealth;

• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;

• endanger the life or physical safety of any person; or

• prejudice the protection of public safety.

Federal Court Justice Susan Kenny^[17] has listed other problems with s70:

• uncertainty in the precedents about whether the underlying duty of confidentiality contained in public service regulations is unconstitutional given the implied constitutional freedom of political communication;

• the duty not to disclose must be found elsewhere;

• anomalies arising from disclosure limited to a ‘fact or document’; and

• issues arising from the need to show ‘publication or communication’ of said fact or document.

OUTLOOK

No organisation, government or private workplace can operate effectively if any employee is free to disclose anything they wish. However, because of the nature of government and the information it holds, special rules apply to government information.

Our laws require openness. There is much scope for improvement, and the law should be implemented in full accordance with its spirit and intent. Excessive secrecy is counterproductive, encouraging leaks for worthy or not so worthy purposes.

Whistleblower protection law should be cutting edge not a complicated narrow maze that only the foolhardy would attempt to navigate.

However, not everything an employee might be privy to constitutes wrongdoing. So not all leakers are whistleblowers.

Justice Kenny suggested in 2011 that changing circumstances in the world around us may provide impetus for action on our outdated secrecy laws:

‘WikiLeaks has brought the issue of government secrecy into the limelight; and has galvanized opinions across the generations and sectors of society. With this is mind, the ALRC's recommended reforms would, if implemented, assist the Australian government to keep up with the likely drift of informed thinking, without endangering the effective working of government. This is because the ALRC's recommendations recognize that secrecy provisions can have an important role to play in effective governance, but that their retention depends upon some principled justification compatible with the contemporary conception of participatory democracy.’^[18]

In 2016, the need for those changes are more profound. A group of doctors who have worked in detention centres has launched a High Court challenge, arguing they should have the freedom to engage in political discussions if that means disclosing information they witness in offshore or onshore detention.^[19]

Unfortunately, the government’s appetite for a ‘principled framework’ and a coherent, consistent, contemporary statute book that effectively balances the public right to know and essential secrecy in the public interest remains unchanged.

With no sign of take-up of recommendations on s70, the government went in the opposite direction with the Australian Border Force Protection Act 2015 (Cth). Anyone – departmental officials, contractors including medical staff – who gains ‘protected information’ during their employment or service is barred from revealing this information without authorisation. ‘Protected information’ is information gained by someone in their capacity as an immigration and border protection worker.

Peter Timmins is a lawyer, a Fellow of the Australian Academy of Law, and Convener of the Australian Open Government Partnership Network who writes the Open and Shut Blog www.foi-privacy.blogspot.com.au. EMAIL [e-mail].

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^[1] Australian Federal Police, ‘AFP statement on search warrants in Melbourne’ (Media Release, 20 May 2016) https://www.afp.gov.au/news-media/media-releases/media-statement-afp-statement-search-warrants-melbourne.

^[2] Michael Bachelard, ‘NBN leaks were of public interest, so why the late night police raids?’, The Sydney Morning Herald (online), 20 May 2016 http://www.smh.com.au/federal-politics/federal-election-2016/nbn-leakswere-of-public-interest-so-why-the-late-night-police-raids-20160520-gozkqh.html.

^[3] Matthew Knott, ‘Ziggy Switkowski: NBN leakers were thieves, not whistleblowers’, The Sydney Morning Herald (online), 28 May 2016 http://www.smh.com.au/federal-politics/federal-election-2016/ziggy-switkowski-nbn-leakers-were-thieves-not-whistleblowers-20160527-gp5j9l.html.

^[4] A collection of articles about the Kessing case can be found on Open and Shut

http://foi-privacy.blogspot.com.au/search?q=kessing#.V5qh8a6wZJN.

^[5] Peter Timmins, No justice for Allan Kessing (9 November 2012) Open and Shut http://foi-privacy.blogspot.com.au/2012/11/no-justice-for-allan-kessing.html#.V5qqEa6wZJM.

^[6] Chris Merritt, ‘No ALP pardon for Kessing in whistleblower case’, The Australian (Online), 9 November 2012 http://www.theaustralian.com.au/business/legal-affairs/no-alp-pardon-for-kessing-in-whistleblower-case/story-e6frg97x-1226513265554.

^[7] Public Interest Disclosure (2015) Commonwealth Ombudsman http://www.ombudsman.gov.au/about/making-a-disclosure.

^[8] J McGinness, ‘Secrecy Provisions in Commonwealth Legislation’ [1990] FedLawRw 3; (1990) 19 Federal Law Review 49.

^[9] The Commonwealth of Australia v. John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 per Mason J at [29].

^[10] Australian Law Reform Commission, Secrecy laws and Open Government in Australia, 16.20, http://alrc.gov.au/publications/16-interactions-other-laws/freedom-information#_ftnref34.

^[11] Crimes Act 1914 (Cth), s38.

^[12] Dr Moira Paterson, Freedom of Information and Privacy in Australia, Butterworths Australia, 2005, 8.106.

^[13] Attorney-General's Department: Review of Commonwealth Criminal Law Final Report, 1991.

^[14] Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, ALRC Report No 112 (2010).

^[15] Peter Timmins, Attorney General’s Department to lead on FOI decision making, but where? (19 September 2014) Open and Shut

http://foi-privacy.blogspot.com.au/2014/09/attorney-generals-department-to-lead-on.html#.V5hu5K6wZJN.

^[16] Published by Open and Shut

https://app.box.com/s/f5d4f113zy14bhqcw183.

^[17] Justice Susan Kenny, Secrecy Provisions: Policy and Practice, 24 March 2011.

http://www.fedcourt.gov.au/publications/judges-speeches/justice-kenny/kenny-j-20110324

^[18] Ibid.

^[19] Sarah Whyte and Uma Patel, ‘Doctors to launch High Court challenge against detention secrecy laws’, ABC News (Online), 27 July 2016 http://www.abc.net.au/news/2016-07-27/doctors-to-launch-high-court-challenge-against-detention-secrecy/7662836.