Sydney Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Sydney Law Review |
|
Comment
The Australian Border Force Act 2015 (Cth) Secrecy Provisions — Borderline Unconstitutional
Nicola Bevitt[∗]
Abstract
This comment critically examines the secrecy provisions of the Australian Border Force Act 2015 (Cth) and argues that they must be reformed in order to ensure their constitutionality. The secrecy provisions operate broadly to prohibit the disclosure of almost all information pertaining to immigration and customs operations in Australia and offshore; highly politicised topics that are the subject of legitimate public debate. The variety of exceptions to the secrecy offence are narrow and unclear in their operation, offering little comfort to individuals who want to disclose the restricted information in order to comment on or criticise Australia’s border protection activities. This comment analyses the secrecy provisions in light of the case law on the implied freedom of political communication, and suggests that the provisions may be unconstitutional. The comment then explores how two amendments — introducing a requirement that an offence only occurs if the disclosure is reasonably likely to harm an essential public interest and introducing a public interest exception within the Act — could enable the Australian Government to legitimately protect sensitive information while reducing the burden on the implied freedom.
The significant public interest in Australia’s immigration policies is highlighted by the political rhetoric and media coverage on the topic in recent times. Stretching from political platforms centred on ‘stopping the boats’[1] to the recent publication of 2000 leaked incident reports from detention centres,[2] the discussion of immigration policies has gained a prominent place in Australian civil society. In light of this, it is significant that the Australian Government has introduced broad secrecy provisions as part of the Australian Border Force Act 2015 (Cth) (‘ABF Act’), which came into effect on 1 July 2015.[3] Secrecy provisions have their place in government operations, ensuring that information affecting national security is protected, diplomatic relationships are maintained, and the integrity of the Government is upheld.[4] Secrecy legislation is commonplace in Australia and is generally used for the reasons outlined above.[5] However, the practical operation of the ABF Act extends beyond these justifications. It has the effect of shutting down or limiting legitimate public discussion regarding Australia’s border protection activities.
The secrecy provisions in the ABF Act have been the subject of controversy and scrutiny. Various concerns have been raised about the breadth of the provisions and their chilling effect on public interest disclosures.[6] Concerns were raised after the introduction of the ABF Act about its potential to undermine the ability of health practitioners to do their jobs. They would be at risk of imprisonment for publicly expressing their concerns.[7] These concerns culminated in the filing of a constitutional challenge to the provisions by Doctors for Refugees on 27 July 2016.[8] On 30 September 2016, the Secretary of the Australian Government Department of Immigration and Border Protection (‘DIBP’) amended the Determination, discussed below, in order to exclude health practitioners from the application of the secrecy provisions.[9] Although this amendment would seem effectively to put an end to the challenge by Doctors for Refugees by excluding doctors from the ABF Act, other individuals such as teachers and social workers are still affected by the provisions.[10] This amendment may suggest that the Australian Government is concerned that a constitutional challenge to the provisions could succeed. Despite the Government’s vehement denials,[11] this amendment may also be taken as an implicit acknowledgement that health practitioners would have been caught by the provisions in some circumstances, such as if they expressed concerns about the conditions in detention centres.[12]
This comment will begin by placing the ABF Act in context in order to understand the rationale for its introduction. It will show that the secrecy provisions are relatively broad in coverage when compared with other such provisions. It will then examine the breadth of application of the secrecy offence and the effectiveness of the exceptions that accompany it. In order to assess whether the ABF Act impermissibly burdens the implied freedom of political communication, this comment will examine the major implied freedom cases, particularly McCloy v New South Wales,[13] before turning to the two cases that have applied the implied freedom analysis to secrecy provisions. It will then demonstrate that there is a serious risk that the ABF Act’s secrecy provisions would be held to place an impermissible burden on the implied freedom. Finally, it will demonstrate how two amendments to the ABF Act could avoid this outcome, while still protecting sensitive information.
The breadth of the ABF Act’s secrecy provisions can be understood by reference to the central role of the Act in Australia’s immigration and customs operations. The ABF Act creates and regulates the Australian Border Force (‘ABF’), a new operational agency.[14] The ABF sits within the DIBP, and was created by merging the Australian Customs and Border Protection Service with the border control operational functions of the DIBP to deal with immigration and national security concerns.[15] The ABF is responsible for enforcing Australian customs laws, maintaining operational border control and maritime security, and conducting detention operations offshore and onshore.[16] In line with these responsibilities, the ABF Act contains provisions ‘to increase resistance to criminal infiltration and corruption and to enhance government and public confidence in Immigration and Border Protection workers’.[17] The ABF Act provides for the drug and alcohol testing of Immigration and Border Protection workers (‘IBP workers’) and establishes the ABF Commissioner.[18] The ABF Act also gives the ABF Commissioner and the DIBP Secretary the power to give directions to IBP workers regarding essential qualifications, reporting of serious misconduct, and the exercise of their functions and powers under the Act.[19] The ABF Act’s secrecy provisions are similar to those in the Customs Administration Act 1985 (Cth) s 16, which has now been repealed due to the ABF Act.[20] It is acknowledged that in the context of the sensitive nature of border force operations and their impact on national security and diplomatic relations, the use of secrecy provisions is justified. It is the extent of the secrecy provisions that is queried.
This analysis of the constitutionality of the ABF Act’s secrecy provisions has implications for the multitude of secrecy provisions in Australia. In 2009, the Australian Law Reform Commission (‘ALRC’) found 506 secrecy provisions across 176 pieces of legislation in Australia.[21] The coverage of these provisions ranges from government officials to any person possessing the protected information, and from restricting only information that could prejudice national security to restricting all information gained in the course of employment.[22] The secrecy provisions have a variety of purposes, such as protecting individuals’ tax and health information, and protecting national security.[23] The similarity of the ABF Act’s secrecy provisions to other secrecy provisions in Australia means that there are wider implications for the constitutionality of other secrecy legislation.
The recommendations made by the ALRC regarding secrecy offences provide a useful framework for evaluating the ABF Act’s secrecy provisions.[24] The ALRC has recommended that secrecy provisions that result in criminal sanctions should only restrict disclosure of information where the disclosure could harm an ‘identified essential public interest’.[25] Under this recommendation, secrecy provisions should only restrict disclosures of information that are reasonably likely to, intended to, or do in fact:
(a) damage the security, defence or international relations of the Commonwealth;
(b) prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
(c) endanger the life or physical safety of any person; or
(d) prejudice the protection of public safety.[26]
This list of ‘essential public interests’ helpfully sets out a framework within which the operation of secrecy provisions is justifiable by reference to the public interest. Introducing this requirement into the ABF Act would still capture information that has been disclosed confidentially by intelligence agencies or foreign bodies or that could jeopardise the ABF’s law enforcement operations, because this falls within the ‘essential public interests’.[27] This potential amendment will become relevant below when considering the constitutionality of the secrecy provisions.
Reforming the ABF Act to narrow its operation would also bring the legislation more into line with the long-term legislative and normative shift towards government openness. An overwhelming emphasis on government secrecy and protection of government information endured relatively uncontroversially until the 1970s.[28] More recently, the introduction of legislation such as the Freedom of Information Act 1982 (Cth) (‘FOI Act’) and the Public Interest Disclosure Act 2013 (Cth) (‘PID Act’) are indicative of a change in public perception that increasingly regards government secrecy as undesirable.[29] The shift towards a presumption of open government is exemplified by recent amendments requiring the Australian Government to proactively disclose information to the public.[30] However, the FOI Act contains a number of exemptions such as documents affecting national security, defence or international relations,[31] documents affecting law enforcement,[32] and documents to which secrecy provisions apply.[33] Therefore, most of the information covered by secrecy legislation would fall within these exemptions.[34] In addition, the requirement of internal reporting in the PID Act, which is explored below, also limits the availability of information to the public.[35] These two statutes epitomise the delicate balance between providing public access to information and restricting information that could harm essential public interests.[36]
The ABF Act contains a secrecy offence that is very broad in relation to the type of information it protects and the people to which it applies. Under s 42, if an ‘entrusted person’ makes a record of, or discloses, ‘protected information’ they are liable to imprisonment for up to two years.[37] This offence applies to conduct within Australia, as well as conduct which occurs outside Australia where the ‘entrusted person’ is an Australian citizen, resident or incorporated body.[38] This means that it will operate in all offshore detention centres. ‘Protected information’ is defined as information that was obtained in a person’s capacity as an entrusted person.[39] This includes information obtained in the course of performing duties, functions or exercising powers under a law of the Commonwealth.[40] Therefore, the offence prohibits the disclosure of a large volume of information and does not distinguish between categories of information or the consequences of disclosure, such as harm to the public interest.
The definition of an ‘entrusted person’ in the ABF Act is of central importance to this offence. An ‘entrusted person’ is defined as the Secretary of the DIBP, the ABF Commissioner or an IBP worker.[41] The term IBP worker includes officers and employees of state, territory, commonwealth and foreign governments and their government agencies.[42] Significantly, the definition of IBP worker extends to consultants and contractors, or their employees, who are specified in a determination under the ABF Act and perform services for the DIBP.[43] The Secretary and the ABF Commissioner each have the power to make this determination.[44] The consequence of this is that the definition of IBP workers can be expanded or otherwise altered unilaterally. The Secretary’s 2016 amendment to the current Determination,[45] which was made with little fanfare despite its impact on current controversies about the ABF Act’s operation, has demonstrated the centrality of this determination-making power to the ABF Act’s operation. The main limitation upon this power is that it cannot be in excess of the Secretary or ABF Commissioner’s power.[46]
The Determination currently in operation states that the definition of IBP workers includes consultants or contractors who have been engaged to perform services for the DIBP and who either perform services for the DIBP in-house or who require non-public access to departmental assets.[47] Non-public access means ‘ongoing or unrestricted access to Departmental Assets which are not available to members of the public’ and departmental assets include information, vessels, aircraft and premises, provided that they are owned, operated, managed, controlled, leased or contracted by the DIBP.[48] The result of the Determination is that employees such as educational professionals, charity workers and public servants who provide services in detention centres will be IBP workers, because detention centres are premises operated, leased or contracted by the DIBP and because they will have access to information owned or managed by the DIBP. The wide-ranging application of the provisions was confirmed in AS v Minister for Immigration and Border Protection (Ruling No 3),[49] where the Court agreed that various health practitioners who had provided medical care in the Christmas Island detention centre were ‘entrusted persons’.[50] While the Determination has now been amended to exclude health practitioners, the outcome of AS v Minister for Immigration and Border Protection (Ruling No 3) demonstrates the potential for the provisions to capture any individual who provides services in detention centres in Australia and offshore and to reduce the likelihood that individuals are willing to speak out for fear of imprisonment.
The justification for the wide-ranging nature of the secrecy offence has not been clearly identified by the Australian Government. The ABF Act does not contain an objects section. The Explanatory Memorandum states that the ABF Act contains integrity provisions for the purpose of reducing corruption and enhancing governmental and public confidence in IBP workers.[51] However, it does not specify whether the secrecy provisions are part of these integrity provisions. In relation to secrecy provisions specifically, the Explanatory Memorandum states that they are ‘necessary to provide assurances to law enforcement and intelligence partners in Australia and internationally and to industry that information provided to the Department will be appropriately protected’.[52] However, this explanation is not satisfactory as the secrecy provisions do not simply restrict the disclosure of confidential information. The failure to clearly identify the purpose behind the secrecy provisions presents some difficulty in the construction of the provisions’ legislative purpose.
The Australian Government has defended the ABF Act’s secrecy provisions in response to outcries over its catch-all nature. It has pointed to the fact that there are similar secrecy provisions governing Australian public servants and contracted service providers.[53] However, the secrecy provision in the Public Service Regulations 1999 (Cth) is not as broad because, while applying to information obtained in connection with employment, it only applies ‘if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government’.[54] The Government has also defended the secrecy offence by pointing to the various exceptions in the ABF Act.[55] However, as the analysis below demonstrates, the exceptions create an unclear and ineffective patchwork of protection for individuals wishing to disclose information of public interest. They fail to ensure that information caught by the secrecy offence that is not reasonably likely to harm an essential public interest can be disclosed without fear of reprisal.
The most significant exception is that disclosures required or authorised by law are exempt from the secrecy offence.[56] This exception indirectly incorporates Australia’s whistleblower legislation. The PID Act exempts from civil or criminal sanctions those individuals who make disclosures about disclosable conduct, such as maladministration and corruption.[57] However, there are a number of issues with this exception. First, while the PID Act applies to employees and officers of contracted service providers, it does not extend to consultants and their employees, whereas the ABF Act does.[58] Second, the PID Act does not extend its protection to the act of recording information, which is prohibited by the ABF Act.[59] Third, the PID Act generally requires the initial disclosure to be made internally to the supervisor or other authorised recipient.[60] External disclosure can only be made where the individual reasonably believes that the investigation or response was inadequate and the disclosure is, on balance, not contrary to the public interest,[61] or where there is a substantial and imminent danger to the health and safety of individuals.[62] This is a high bar.[63] Finally, the exception does not apply to ‘sensitive law enforcement information’, which is widely defined.[64] As the DIBP is defined as a law enforcement agency in the Law Enforcement Integrity Commissioner Act 2006 (Cth), a large amount of border protection information could fall within this definition. This would render the PID Act ineffective in relation to almost all information caught by the ABF Act.[65] The various limitations of the exception and lack of certainty over its effectiveness mean that potential whistleblowers would be unlikely to rely on it.
The other major exception in the ABF Act is where disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual and the purpose of the disclosure is to prevent or lessen that threat.[66] The problem with this exception is that it sets high thresholds of ‘serious threat’ and necessity, and the onus is on the individual to establish that these thresholds are met.[67] Due to the difficulty of deciding whether a situation meets these thresholds,[68] IBP workers may be reluctant to rely on this exception. In addition, this exception does not allow IBP workers to publicly voice concerns regarding problematic conditions in detention centres that do not rise to the level of ‘serious threat’. There is also an exception for recording or disclosing protected information that relates to the affairs of a person or body if that person or body has consented to the disclosure.[69] This could provide an avenue for disclosure pertaining to the affairs of individuals in detention centres, but is limited to that individual’s personal information. Therefore, information about widespread health issues and poor conditions within detention centres cannot be disclosed under these exceptions, despite being of significant public and political interest and, according to the ABF Commissioner, not involving classified government information.[70]
Section 44 of the ABF Act provides an exception where the individual obtains written authorisation from the Secretary of the DIBP. The Secretary can authorise disclosure of information to certain government agencies or officers, the police, or other bodies specified in the rules if he or she is satisfied that the disclosure will assist in the exercise of the recipient’s functions, duties or powers.[71] If the disclosure contains personal information, then the Secretary must also be satisfied that the disclosure is for a purpose prescribed in s 46 and is of a class of information that may be disclosed to that body or person under the rules.[72] The bodies that can receive disclosures under the current Rule comprise mostly government bodies and departments.[73] The Rule does not authorise any Australian media organisations, the Australian Human Rights Commission, or the Commonwealth Ombudsman to receive information of any class.[74] Therefore, this exception cannot be used to provide information about the treatment of persons in detention centres to the general public or to two of the main bodies that may review government actions. The exception in s 45 for disclosure with the written authorisation of the Secretary to a foreign country, an agency or authority of a foreign country or a public international organisation similarly does not provide a meaningful opportunity to disclose information publicly.[75]
The remaining exceptions do not require authorisation from the Secretary and are common throughout secrecy legislation.[76] First, the making of a record or disclosure is allowed where it is in the course of the person’s employment or service as an entrusted person.[77] Second, the making of a record or disclosure is allowed where it is for the purposes of the ABF Act (or a legislative instrument under the Act) or for the purposes of the Law Enforcement Integrity Commissioner Act 2006 (Cth), which is an act facilitating the investigation and prosecution of corruption in law enforcement agencies.[78] Third, disclosure is allowed where it is required by an order or direction of a court or tribunal.[79] Finally, disclosure is allowed where it has already lawfully been made public.[80]
The exceptions in the ABF Act do not meaningfully limit the catch-all nature of the secrecy offence by enabling disclosures where the information does not harm an essential public interest. Potential whistleblowers are unlikely to disclose information due to ambiguity as to whether they would be protected by the PID Act. IBP workers must wait to voice their concerns about the conditions in detention centres until there is a serious threat to a person’s health or life. The rest of the exceptions apply to disclosures to official bodies or as a necessary aspect of employment. Even if all of the exceptions operate to their maximum effect, there is still a vast array of information gained by IBP workers during their employment which cannot be disclosed even though it does not involve classified, sensitive or prejudicial information. The exceptions in the ABF Act are too narrow to remove the onerous restrictions on the ability of IBP workers to communicate information about government and political matters without the fear of imprisonment.
The ABF Act’s secrecy provisions greatly restrict information relating to border protection from reaching the public sphere. As information about Australia’s immigration and customs operations relates to government or political matters, restricting this information could affect electors’ informed, direct choice of political representation. The system of representative government that arises from the text and structure of the Australian Constitution requires that members of the Senate and House of Representatives are ‘directly chosen’ by the people.[81] The High Court of Australia has held that freedom of political communication — the ability of electors to ‘communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf’ — is essential to representative government.[82] Without this freedom, electors cannot ‘exercise a free and informed choice’.[83]
The existence of the implied freedom of political communication was ultimately confirmed in Lange.[84] The High Court unanimously set out the following test to determine whether legislation breaches the implied freedom:
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 ... . If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.[85]
Therefore, the implied freedom is not absolute and may be restricted in order to achieve other legitimate ends, provided that this does not undermine the efficient operation of the system of representative government.[86] The Lange test was modified slightly in Coleman v Power[87] by replacing the words ‘the fulfilment of’ with the words ‘in a manner’ to recognise that not only the ends of the legislation, but also the means used, must be consistent with the freedom.[88]
In Lange, the former prime minister of New Zealand sued the Australian Broadcasting Corporation (‘ABC’) for defamation under the Defamation Act 1974 (NSW).[89] He argued that the ABC’s broadcast conveyed imputations that he was guilty of abuse of public office and unfit for public office.[90] The ABC argued that the implied freedom provided a freestanding defence to a common law action for defamation, on the basis of two previous High Court decisions.[91] The Court, applying the first limb of its two limb test, found that the common law action of defamation did indirectly burden the implied freedom.[92] Under the second limb, the Court found that this action had the legitimate purpose of protecting reputation, but would infringe the implied freedom if the defence of qualified privilege did not exist.[93] The Court then expanded the categories of qualified privilege to include the protection of ‘a communication made to the public on a government or political matter’ in order to further uphold the implied freedom.[94] The judgment essentially rejected the cases that had applied a freestanding defence that rested on the implied freedom,[95] by holding that the implied freedom did not form the basis of personal, positive rights that could be exercised against individuals.[96]
The Lange test was modified in 2015 by the High Court in McCloy.[97] The joint judgment by French CJ, Kiefel, Bell and Keane JJ confirmed that Lange was authoritative, but reformulated the test into three questions.[98] First, does the law burden the freedom in its terms, operation or effect (‘the burden test’)?[99] Second, are the purpose of the law and the means to achieve it legitimate, being compatible with the system of representative government provided in the Australian Constitution, in that neither the purpose nor means adversely impinge on that system (‘the compatibility test’)?[100] Third, is the law reasonably appropriate and adapted to advance the legitimate purpose, in the sense that it is suitable, necessary and adequate in its balancing of the purpose and the implied freedom (‘the proportionality test’)?[101] The joint judgment then detailed a three-stage test for the proportionality test, all of which must be met for the provision to be valid.[102] The law is suitable if it has a rational connection to its purported purpose.[103] The law is necessary if there is no ‘alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom’.[104] The law is adequate in its balance if the court finds that the importance of the purpose of the law outweighs the extent of the burden on the freedom.[105] As an aside, the longevity of this reformulation is questionable given Gageler J’s criticism of the introduction of the proportionality test,[106] the concerns raised in the judgments of Gordon J and Nettle J,[107] and further qualifications regarding the scope of its application expressed in Murphy.[108]
The joint judgment then analysed the validity of the legislation using this reformulated test.[109] McCloy involved a challenge to legislation that capped political donations and banned donations by property developers.[110] For the burden test, the joint judgment found that restricting political donations did burden the freedom because it limited the funds available to candidates to meet the costs of political communication and thus limited political communication.[111] Their Honours rejected the plaintiffs’ argument that the ability to make substantial donations is part of the implied freedom.[112] For the compatibility test, the joint judgment found that the purpose of the provisions was to prevent actual and perceived corruption and undue influence in the New South Wales (‘NSW’) Government.[113] The joint judgment stated that large political donations pose a risk to the system of representative government because not everyone has the capacity to make them and participate equally.[114] Their Honours also found that singling out property developers was legitimate given various reports of corruption in relation to land decisions.[115] Therefore, they found that the purpose, and method, of the statute was compatible with representative government.[116] As to the proportionality test, the majority took a broad view of the definition of corruption and found that there was a rational connection between prohibiting or limiting donations and the purpose of reducing corruption.[117] Their Honours rejected the alternatives proposed by the plaintiffs because they were less effective and harder to enforce.[118] Ultimately, the High Court held that the public interest in targeting corruption actually enhanced the system of representative government and outweighed the indirect impact on the freedom, so that on balance the legislation was appropriate and adapted.[119] The Court upheld the validity of the legislation.[120]
The first decision regarding the validity of secrecy provisions with respect to the implied freedom was Bennett v President, Human Rights and Equal Opportunity Commission,[121] which was handed down in 2003 by the Federal Court of Australia. The disputed legislation restricted information in a way similar to the ABF Act, making Bennett particularly relevant to the analysis of the constitutionality of the Act’s secrecy provisions. The disputed provision prohibited public servants from disclosing ‘directly or indirectly, any information about public business or anything of which the employee has official knowledge’.[122] Mr Bennett was employed in the Australian Customs Service (‘Customs’) for over 30 years and was also President of the Customs Officers Association.[123] He was directed by the Head of Customs on numerous occasions not to disclose information about the policy or operations of Customs, in accordance with the relevant legislation.[124] Mr Bennett argued that he should be able to disclose information about matters of interest to the members of the Customs Officers Association trade union.[125] Mr Bennett was charged after he disclosed information about proposed cuts to Customs officials.[126] Mr Bennett took the matter to the Human Rights and Equal Opportunity Commission, which declined his complaint.[127]
On appeal, the Federal Court applied the Lange test. Justice Finn found that the first limb of Lange was satisfied because the legislation restricted the ability of public servants to communicate regarding government policies or to make public comments.[128] As to the second limb, Finn J held that the object of the provision was to further ‘efficient operation of government’ and that this was a legitimate object.[129] However, His Honour held that the legislation was not appropriate or adapted to this object because of its catch-all nature, which ‘did not differentiate between species of information or consequences of disclosure’.[130] Justice Finn rejected the argument that the ability of the Head of Customs to authorise disclosure mitigated the far-reaching restriction, because it turned ‘the freedom into a dispensation’.[131] His Honour also found that provisions were not necessary because there was a less restrictive alternative.[132] He pointed to South Australian legislation which only restricted disclosures that could reasonably prejudice the Government in the conduct of its policies or that were for a pecuniary or other reward, rather than applying in an unqualified manner.[133] Ultimately, Finn J held that the provisions were invalid due to their unqualified, catch-all nature.[134]
In R v Goreng-Goreng,[135] the Supreme Court of the Australian Capital Territory also considered the validity of restrictions on disclosures by public servants. The relevant regulation prohibited disclosure of information where it was ‘reasonably foreseeable that the disclosure could be prejudicial to the effective working of government’.[136] The defendant was charged under s 70(1) of the Crimes Act 1914 (Cth), which makes it a criminal offence for a Commonwealth officer to communicate any fact or document that comes into their knowledge or possession by virtue of being a Commonwealth officer and that they had a duty not to disclose. The Court found that upholding the effective working of government was a legitimate end that was compatible with representative government.[137] The Court distinguished Bennett on the basis that the present regulation was more limited and targeted in its restriction than the provision in Bennett.[138] It held that the regulation was valid on this basis.[139] Allowing for the fact that both Goreng-Goreng and Bennett were decided prior to McCloy, which altered the steps of analysis to be taken, the discussion will draw on the reasoning in these cases in analysing the secrecy provisions.
The question of whether the secrecy provisions in the ABF Act need to be amended so that they do not impermissibly breach the implied freedom must be answered through an application of the Lange test, as reformulated in McCloy. The burden test from McCloy may be confidently answered in the affirmative because the ABF Act restricts information relating to the Australian Government’s border protection activities, which falls directly within the concept of ‘government and political matters’ and is, thus, political communication.[140]
The compatibility test involves identifying the purpose of the secrecy provisions and determining whether the purpose and means used to achieve it are compatible with the system of representative government.[141] The purpose of the secrecy provisions is identified through the ordinary processes of statutory construction.[142] The starting point for this construction is the text of the provisions, with reference to the practical effect and context of the provisions.[143] The secrecy provisions themselves restrict the disclosure of all information obtained by IBP workers who provide services to the DIBP, except where exceptions apply. The ABF Act does not contain an objects section, but the Explanatory Memorandum indicates that the secrecy provisions are aimed at protecting information provided to the Government in confidence.[144] However, this is not a useful expression of purpose given that the operation of the secrecy provisions is not limited to confidential information. In the context of Australia’s border protection activities, there is a variety of information that could harm essential public interests and justify the operation of secrecy provisions. However, the ABF Act’s secrecy provisions operate broadly and are not limited to restricting information that would harm an essential public interest. This suggests that the provisions are for a wider purpose.
The decision in Bennett was that the provisions were for the purpose of maintaining the efficient operation or effective working of government. In light of the similarly broad legal operation of the secrecy provisions and the context of the ABF Act, a court might construe the purpose of the secrecy provisions as ‘maintaining the efficient operation of the Government’s immigration and customs activities’ or ‘maintaining the effective working of the Australian Border Force’. It is difficult to predict whether a court would construe the purpose more narrowly or broadly because of the variety of approaches in the implied freedom cases,[145] but the rest of the analysis will be conducted using this suggested formulation.
It is likely that this purpose would be found to satisfy the compatibility test. Prior to McCloy, compatibility was harder to establish because the purpose had to be directed to the maintenance of the system of representative government,[146] or to some other public interest or ‘legitimate public end’.[147] The McCloy enquiry is whether, having regard to the purpose of the provisions and the means adopted to achieve that purpose, the provisions are ‘directed to, or operate to, [adversely] impinge on the functionality of the system of representative government’.[148] The aim of maintaining the efficient operation of Australia’s border protection activities is not directed to, and does not operate to, adversely impinge on representative government because it does not directly relate to political communication or any other aspect of representative government. Therefore, the purpose is likely to be compatible under the less strict McCloy test.
The real problem for the validity of the secrecy provisions is that the means used to achieve this purpose are likely to be found to adversely impinge on the system of representative government. In the words of McHugh J, ‘an unqualified prohibition’ is not compatible with the freedom.[149] The narrow, unclear exceptions in the ABF Act do not adequately limit the ‘catch-all’ nature of the secrecy offence to prevent it from impinging on representative government.[150] This is because these exceptions do not adequately exempt disclosure of information that is relevant to the informed, direct choice of government representatives by the Australian public and is worthy of legitimate public debate. This means that the provisions operate to adversely impinge on the implied freedom of political communication. As the implied freedom underpins the system of representative government, the means adopted in the ABF Act are arguably not compatible with the system of representative government. A court would be highly likely to find the secrecy provisions invalid on this basis.
Even if the secrecy provisions were found to satisfy the compatibility test, they would be unlikely to satisfy the proportionality test. At the first stage of the proportionality test, it does not matter if Parliament could have used other, narrower means to achieve the legitimate purpose, as long as the secrecy provisions can ‘contribute to the realisation’ of the purpose.[151] It is likely a court would find a rational connection between the operation of the secrecy provisions and the purposes outlined above. At the second stage, there are two compelling, equally practicable alternatives that would achieve the legitimate purpose with a ‘less restrictive effect on the freedom’.[152] A court should only use this as a ‘tool of analysis’,[153] so as to avoid usurping the role of the legislature by making ‘definitive judgments’ about the best legislative option.[154] The first alternative is to introduce a public interest disclosure exception into the ABF Act itself. The second alternative is to limit the secrecy offence to disclosures that are reasonably likely to harm an essential public interest.[155] These amendments, discussed further below, achieve the legitimate purpose but are less likely to restrict information that could contribute to legitimate public discussion.
Finally, it is unlikely that the secrecy provisions would satisfy the third stage of the proportionality test. This involves balancing the importance of the purpose and the benefit of the provisions against ‘the extent of the restriction on the freedom’.[156] It is undeniable that maintaining the efficient operation of Australia’s border protection activities, such as upholding Australia’s security and defence, is of substantial importance.[157] As this balancing test involves a limited degree of ‘value judgement’, a court might find that the regulation of border protection information is of primary importance as it prevents prejudice to Australia’s border protection operations or, more generally, harm to Australia’s national security.[158] On the other hand, a court might find that the extent of the burden on the implied freedom is so large that it outweighs the importance of the ABF Act’s legitimate purpose. Although Bennett and Goreng-Goreng were decided before the introduction of this third stage, the reasoning regarding the problems with ‘catch-all’ secrecy provisions is applicable to the present situation. By failing to differentiate between categories of information or consequences of disclosure and by imposing a blanket restriction on information with only narrow exceptions,[159] the provisions have a chilling effect on disclosures that could contribute to legitimate public debate. The extent of the restriction is so wide that it covers the disclosure of almost all information regarding the Government’s border protection activities, thereby preventing public discussion on a topic of significant political controversy and interest. Although it is difficult to predict the weight that a court would give to each issue, it is likely that a court would find that the burden on the implied freedom outweighs the benefits of the provisions. On this basis, the provisions would fail the proportionality test and be declared invalid.
The two amendments proposed by the Law Council of Australia and the Australian Law Reform Commission would more effectively ensure that information not prejudicial to the public interest can be disclosed without risking imprisonment.[160] The first amendment is to include, within the ABF Act, an exception for disclosures in the public interest. This would overcome the issues arising from reliance on the PID Act. First, it would ensure that the exception applies to all categories of IBP workers and to the offence of recording information. Second, it would allow the Australian Government to specify that not all information obtained by IBP workers is ‘sensitive law enforcement information’ which cannot be disclosed in the public interest. Ideally, the exception would enable greater disclosure of information directly to the public than that provided for by the PID Act. By including the exception within the ABF Act, it would increase the likelihood that information relevant to the public interest would reach the public domain.
The second amendment involves altering the secrecy offence so that no offence is committed unless the disclosure caused, or was reasonably likely or intended to cause, harm to an essential public interest.[161] The list of the essential public interests, set out above in Part II, enhances the clarity of the provision.[162] The list is relatively narrow because the ALRC contends that, as breaching the secrecy offence results in criminal sanction, disclosure that is penalised must ‘harm more than the effective working of government or commercial or personal interests’.[163] This amendment would significantly narrow the scope of the present secrecy provisions. Further, by connecting the secrecy offence to the justifications for secrecy legislation generally, this amendment would mean that the implied freedom is only burdened when disclosure would harm an essential public interest. This would reduce the likelihood that a court would find there were compelling, less restrictive alternatives. It would increase the likelihood that a court would hold the purpose, as well as the means to achieve it, compatible with representative government. The ABF Act would still burden political communication to some extent by limiting some disclosure of government policy and operations. However, it would be more proportionate because it would only restrict information harmful to the public interest, an aim which is valuable to the system of representative government.
This comment does not argue that the Australian Government must relinquish control of all information arising in the immigration and customs context. The Government has a legitimate interest in regulating information that is likely to cause harm to essential public interests. However, examination of the secrecy provisions demonstrates the sheer breadth of the secrecy offence in its application to almost all individuals who provide services to the DIBP and almost all information obtained while providing such services. The threat of imprisonment for up to two years, and the lack of clarity regarding the availability and effectiveness of protection afforded by the exceptions, can safely be assumed to have a chilling effect on the disclosure of publicly significant information.
The ABF Act heavily burdens the implied freedom of political communication because it quells the disclosure of information that is directly relevant to the informed, direct choice of Australian electors. The provisions go far beyond what is reasonably appropriate and adapted to the legitimate end of protecting confidential information or maintaining the effective working of government. The ABF Act is disproportionate because it prohibits the disclosure of information even when it is unlikely to cause harm to national security, diplomatic relations, the safety of individuals and other essential public interests. In addition, the current breadth of the secrecy provisions is not necessary. Less restrictive alternatives exist in the form of two compelling amendments to the ABF Act that would achieve the Government’s legitimate purposes without restricting such a large amount of information. Both the introduction of a harm requirement into the offence and a public interest disclosure exception would enable the Government to exercise control over sensitive information, while reducing the scope of information caught by the ABF Act. The amendments would ensure that only the disclosure of harmful information is prohibited and would clarify that information that is of legitimate public interest may be disclosed. If the suggested amendments were introduced by the Australian Government, this would achieve a fairer and more proportionate balance between protecting government information and upholding the implied freedom of political communication in Australia.
[∗] BA LLB (Syd). My sincere gratitude to Dr Rayner Thwaites for supervising the writing of this comment and providing feedback and assistance. Thanks also to Samuel Murray for his insights and suggestions.
[1] Jonathan Swan, ‘Harsh Rhetoric Used Again as Tony Abbott Reveals Latest Measures to “Stop the Boats”’, The Sydney Morning Herald (online), 23 August 2013 <http://www.smh.com.au/federal-politics/federal-election-2013/harsh-rhetoric-used-again-as-tony-abbott-reveals-latest-measures-to-stop-the-boats-20130823-2sfyp.html> Nicole Hasham, ‘New York Times Attacks Prime Minister Tony Abbott over “Stop the Boats” Policy’, The Sydney Morning Herald (online), 4 September 2015 <http://www.smh.com.au/federal-politics/political-news/new-york-times-attacks-prime-minister-tony-abbott-over-stop-the-boats-policy-20150903-gjer14.html> .
[2] Paul Farrell, Nick Evershed and Helen Davidson, ‘The Nauru Files: Cache of 2,000 Leaked Reports Reveal Scale of Abuse of Children in Australian Offshore Detention’, The Guardian (online), 10 August 2016 <https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention>.
[3] Australian Border Force Act 2015 (Cth) ss 2, 41–51 (‘ABF Act’).
[4] Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report No 112 (2009) 22 (‘ALRC Report 112’); Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433; (2003) 134 FCR 334, 358–9 (‘Bennett’); Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Harvard University Press, 2015) 4–5.
[5] See ALRC Report 112, above n 4.
[6] See, eg, Khanh Hoang, ‘Border Force Act Entrenches Secrecy around Australia’s Asylum Seeker Regime’, The Conversation (online), 2 July 2015 <https://theconversation.com/border-force-act-entrenches-secrecy-around-australias-asylum-seeker-regime-44136>; Ellen Moore, Musood Darwish and Dr Alison Pert, Submission No 109 to the Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws.
[7] Louise Newman, ‘Detention Gag Orders Make It Almost Impossible for Doctors To Do Their Job’, The Conversation (online), 9 June 2015 <https://theconversation.com/detention-gag-orders-make-it-impossible-for-doctors-to-do-their-job-42809>.
[8] Claudia Fatone, ‘Doctors for Refugees’, Fitzroy Legal Centre, 27 July 2016 <http://www.fitzroy-legal.org.au/doctors_for_refugees> Sarah Whyte and Uma Patel, ‘Doctors to Launch High Court Challenge against Detention Secrecy Laws’, ABC, 27 July 2016 <http://www.abc.net.au/news/2016-07-27/doctors-to-launch-high-court-challenge-against-detention-secrecy/7662836> .
[9] Determination of Immigration and Border Protection Workers 2015 (Cth) para D, as amended by Determination of Immigration and Border Protection Workers — Amendment No. 1 2016 (Cth).
[10] Bianca Hall, ‘“A Huge Win for Doctors”: Turnbull Government Backs Down on Gag Laws for Doctors on Nauru and Manus’, The Sydney Morning Herald (online), 20 October 2016 <http://www.smh.com.au/federal-politics/political-news/a-huge-win-for-doctors-turnbull-government-backs-down-on-gag-laws-for-doctors-on-nauru-and-manus-20161019-gs6ecs.html> .
[11] Department of Immigration and Border Protection (Cth), ‘Secrecy Provisions of the Australian Border Force Act’ (Media Release, 7 July 2015) <http://newsroom.border. gov.au/releases/secrecy-provisions-of-the-australian-border-force-act?> .
[12] This is discussed in Part IV below.
[13] [2015] HCA 34; (2015) 257 CLR 178 (‘McCloy’).
[14] Department of Immigration and Border Protection (Cth), Who We Are <https://www.border.gov.au/australian-border-force-abf/who-we-are>; Explanatory Memorandum, Australian Border Force Bill 2015 (Cth) 3 (‘Explanatory Memorandum’).
[15] Department of Immigration and Border Protection (Cth), above n 14; Stephen Tully (ed), ‘Immigration and International Aspects’ (2015) 22(4) Australian Journal of Administrative Law 213, 214.
[16] Explanatory Memorandum, above n 14, 2; Khanh Hoang, ‘Of Secrecy and Enforcement: Australian Border Force Act’ (2015) 14 Law Society of New South Wales Journal 78, 78.
[17] Explanatory Memorandum, above n 14, 2.
[18] ABF Act ss 9, 33–40.
[19] Ibid ss 25–27.
[20] Ibid ss 41–51; Law Council of Australia, Submission No 12 to the Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Australian Border Force Bill 2015 and the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015, 9 April 2015, 13 (‘LCA Submission 12’).
[21] ALRC Report 112, above n 4, 22.
[22] Ibid 310–12.
[23] Ibid 55, 279–80.
[24] Ibid 9, 12; ibid chs 4–5, 8.
[25] Ibid.
[26] ALRC Report 112, 9 (Recommendation 5-1). The ALRC has set out the reasons for these particular public interests: at 145–60, 279–306. This comment has not included ‘a substantial adverse impact on personal privacy’ as an essential public interest due to the reasons outlined by the ALRC: at 296–302. Note that, for the purposes of this list, the ALRC has recommended adopting the definition of security in the Australian Security Intelligence Organisation Act 1979 (Cth) s 4, which includes ‘the protection of Australia’s territorial and border integrity from serious threats’: ALRC Report 112, 150.
[27] See ibid 294–5. Following the same reasoning, ABF operations often relate to criminal offences, so they will fall within the essential public interest of the prevention, detection, investigation, prosecution or punishment of criminal offences.
[28] The Hon Justice SC Kenny, ‘Secrecy Provisions: Policy and Practice’ (Speech delivered at the National Information Law Conference 2011, National Museum of Australia, Canberra, 24 March 2011); Schudson, above n 4, 3; Commonwealth of Australia, Royal Commission on Australian Government Administration — Report (Australian Government Publishing Service Canberra, 1976) 349–50.
[29] Kenny, above n 29; Bennett [2003] FCA 1433; (2003) 134 FCR 334, 355.
[30] Australian Information Commissioner Act 2010 (Cth); Freedom of Information Amendment (Reform) Act 2010 (Cth); Office of the Australian Information Commissioner (Cth), Chapter 4: Develop and Implement Information Policy <https://www.oaic.gov.au/about-us/corporate-information/annual-reports/oaic-annual-report-201011/chapter-4-develop-and-implement-information-policy>; Simon Murray, ‘Freedom of Information Reform: Does the New Public Interest Test for Conditionally Exempt Documents Signal the Death of the “Howard Factors”?’ [2012] UTasLawRw 3; (2012) 31(1) University of Tasmania Law Review 58.
[31] FOI Act s 33.
[32] Ibid s 37.
[33] Ibid s 38.
[34] Department of the Prime Minister and Cabinet (Cth), Freedom of Information Guidelines (2009) 53–5 (‘FOI Guidelines’). There is some controversy over whether secrecy legislation introduced after the FOI Act ousts the operation of the FOI Act in certain circumstances: see Kwok v Minister for Immigration and Multicultural Affairs [2001] FCA 1444; (2001) 112 FCR 94; FOI Guidelines 53–4; LCA Submission 12, above n 20, 14.
[35] PID Act ss 26(1) item 1, 34; George Williams and Keiran Hardy, ‘Terrorist, Traitor or Whistleblower? Offences and Protections in Australia for Disclosing National Security Information’ [2014] UNSWLawJl 29; (2014) 37(2) University of New South Wales Law Journal 784, 811–12.
[36] Kenny, above n 29.
[37] ABF Act s 42(1).
[38] Ibid s 42(3). This section specifies that the Criminal Code Act 1995 (Cth) s 15.2, which relates to a category of extended geographical jurisdiction, applies to the ABF Act: Explanatory Memorandum, above n 14, 44–5.
[39] ABF Act s 4 (definition of ‘protected information’).
[40] Ibid s 4(4).
[41] Ibid s 4 (definition of ‘entrusted person’).
[42] Ibid s 4(a)–(d) (definition of ‘entrusted person’).
[43] Ibid s 4(e)–(f) (definition of ‘entrusted person’).
[44] Ibid s 5.
[45] Determination of Immigration and Border Protection Workers — Amendment No. 1 2016 (Cth).
[46] Acts Interpretation Act 1901 (Cth) s 46. The Determination is not a legislative instrument: ABF Act s 5(3). For this reason, it is governed by the Acts Interpretation Act 1901 (Cth): Office of Parliamentary Counsel (Cth), Drafting Direction No 3.8 — Subordinate Legislation (June 2016) 20 <https://www.opc.gov.au/about/docs/drafting_series/DD3.8.pdf>.
[47] Determination of Immigration and Border Protection Workers 2015 (Cth).
[48] Ibid.
[50] Ibid 124 [10].
[51] Explanatory Memorandum, above n 14, 3.
[52] Ibid 14.
[53] Peter Dutton, Minister for Immigration and Border Protection, ‘Inaccurate Media Statements on ABF Act’ (Media Release, 1 July 2015) <www.minister.border.gov.au/peterdutton/2015/Pages/
Inaccurate-media-statements-on-abf-act.aspx>; Department of Immigration and Border Protection (Cth), above n 11.
[54] Public Service Regulations 1999 (Cth) reg 2.1(3); Public Service Act 1999 (Cth) s 13(13).
[55] Department of Immigration and Border Protection (Cth), above n 11.
[56] ABF Act s 42(2)(c).
[57] PID Act ss 10, 26, 29; Williams and Hardy, above n 35, 809–16.
[58] PID Act ss 26, 30(2), 69(1) items 13, 15, 16; Williams and Hardy, above n 35, 809–10.
[59] Ibid s 26(1).
[60] Ibid ss 26(1) item 1, 34; Williams and Hardy, above n 35, 811–16; Commonwealth Ombudsman, Agency Guide to the Public Interest Disclosure Act 2013 (April 2016) 9–10 <http://www.ombudsman.gov.au/__data/assets/pdf_file/0020/37415/Agency_Guide_to_the_PID_Act_Version_2.pdf> .
[61] PID Act ss 26(1) item 1, 26(3); Williams and Hardy, above n 35, 812.
[62] PID Act s 29(1) item 3; Hoang, above n 16, 79.
[63] Moore, Darwish and Pert, above n 6, 5; Stephanie Szkilnik, ‘Secrecy and Disclosure: The Australian Border Force Act 2015 (Cth) Protecting Our Borders from Free Speech’ (2016) 21(1) Media and Arts Law Review 64, 71.
[64] PID Act s 41; Hoang, above n 16, 79; Szkilnik, above n 63, 72.
[65] Hoang, above n 16, 79–80; Hoang, above n 6; Szkilnik, above n 63, 72.
[66] ABF Act s 48.
[67] Moore, Darwish and Pert, above n 6, 5; Hoang, above n 6; Szkilnik, above n 63, 67–8.
[68] Hoang, above n 6; Szkilnik, above n 63, 67–8.
[69] ABF Act s 47.
[70] The ABF Commissioner has stated that he does not believe information about conditions in detention centres is ‘classified information’: Latika Bourke, ‘Medical Staff Unlikely to be Prosecuted under New Border Force Protection Laws, Says Border Force Commissioner’, The Sydney Morning Herald (online), 1 July 2015 <http://www.smh.com.au/federal-politics/political-news/medical-staff-unlikely-to-be-prosecuted-under-new-border-protection-laws-says-border-force-commissioner-20150701-gi269g.html> .
[71] ABF Act s 44; Australian Border Force (Secrecy and Disclosure) Rule 2015 (Cth) (‘ABF Rule’).
[72] ABF Act s 44; ABF Rule.
[73] ABF Rule.
[74] Ibid.
[75] ABF Act s 45(2).
[76] ALRC Report 112, above n 4.
[77] ABF Act s 42(2)(b).
[78] Ibid s 43; Law Enforcement Integrity Commissioner Act 2006 (Cth) s 3.
[79] ABF Act s 42(2)(d); AS v Minister for Immigration and Border Protection (Ruling No 3) (2015) 307 FLR 122.
[80] ABF Act s 49.
[81] Australian Constitution ss 7, 24, 128; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 (‘Nationwide News’); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’); Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 566–7 (‘Lange’); James Stellios, Zines’ The High Court and the Constitution (Federation Press, 6th ed, 2015) 553, 552–63.
[82] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 72 (Deane and Toohey JJ).
[83] Lange [1997] HCA 25; (1997) 189 CLR 520, 530, 560–61.
[84] [1997] HCA 25; (1997) 189 CLR 520.
[85] Ibid 567–8.
[86] Ibid 561.
[87] [2004] HCA 39; (2004) 220 CLR 1.
[88] Ibid 51; Stellios, above n 81, 565–6.
[89] Lange [1997] HCA 25; (1997) 189 CLR 520, 521.
[90] Ibid 521.
[91] Ibid 550; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’); Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 (‘Stephens’).
[92] Lange [1997] HCA 25; (1997) 189 CLR 520, 575.
[93] Ibid 569.
[94] Ibid 571; Stellios, above n 81, 564.
[95] Theophanous [1994] HCA 46; (1994) 182 CLR 104; Stephens [1994] HCA 45; (1994) 182 CLR 211.
[96] Lange [1997] HCA 25; (1997) 189 CLR 520, 560; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 234 (McHugh J); Stellios, above n 81; Tony Blackshield and George Williams, Australian Constitutional Law and Theory — Commentary and Materials (Federation Press, 5th ed, 2010) 1284.
[97] [2015] HCA 34; (2015) 257 CLR 178 (‘McCloy’); Sir Anthony Mason, ‘The Use of Proportionality in Australian Constitutional Law’ (2016) 27(2) Public Law Review 109. Murphy v Electoral Commissioner [2016] HCA 36; (2016) 90 ALJR 1027, 1039, 1079 (‘Murphy’) referred to the proportionality test outlined in McCloy as a mode of analysis that is not necessarily applicable to the ‘reasonably appropriate and adapted’ test when the test is applied outside of the implied freedom context.
[98] McCloy [2015] HCA 34; (2015) 257 CLR 178, 193–6 (French CJ, Kiefel, Bell and Keane JJ).
[99] Ibid 194.
[100] Ibid; Lange [1997] HCA 25; (1997) 189 CLR 520; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; Anne Carter, ‘Case Note: McCloy v New South Wales’ (2015) 26(4) Public Law Review 245, 248.
[101] Ibid 862–3; Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[102] Carter, above n 100, 248–9, 252. The origins of this three-stage proportionality test can be seen in Monis v The Queen (2013) 249 CLR 92, 213–16 (‘Monis’) and Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508, 570–72 [108]–[116] (‘Tajjour’).
[103] McCloy [2015] HCA 34; (2015) 257 CLR 178, 195–6, 217–18 (French CJ, Kiefel, Bell and Keane JJ).
[104] Ibid.
[105] Ibid 195–6, 212–20 (French CJ, Kiefel, Bell and Keane JJ); Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press, 2012) 3.
[106] McCloy [2015] HCA 34; (2015) 257 CLR 178, 234–239 [140]–[155] (Gageler J).
[107] Ibid 269–70 [254]–[255] (Nettle J), 287–8 [336]–[339] (Gordon J).
[108] [2016] HCA 36; (2016) 90 ALJR 1027.
[109] It is outside the scope of the discussion to examine the issues raised by the minority judgments regarding the standardised proportionality test. On this topic, see Anne Twomey, ‘Proportionality and the Constitution’ (Speech delivered at the ALRC Freedom Symposium, Federal Court, Queens Square, Sydney, 8 October 2015); Murray Wesson, ‘Comments: Crafting a Concept of Deference for the Implied Freedom of Political Communication’ (2016) 27(2) Public Law Review 101, 102–3; Sir Anthony Mason, above n 97, 120–23.
[110] Election Funding, Expenditure and Disclosures Act 1981 (NSW) Pt 6 Divs 2A, 4A, s 96E; Carter, above n 100, 245.
[111] McCloy [2015] HCA 34; (2015) 257 CLR 178, 201 [24] (French CJ, Kiefel, Bell and Keane JJ).
[112] Ibid 867 [28] (French CJ, Kiefel, Bell and Keane JJ).
[113] Ibid 867–71 [93]; Anne Twomey, ‘McCloy v New South Wales: Developer Donations and Banning the Buying of Influence’ [2015] SydLawRw 13; (2015) 37(2) Sydney Law Review 275, 277–8.
[114] McCloy [2015] HCA 34; (2015) 257 CLR 178, 207–8 [44]–[47] (French CJ, Kiefel, Bell and Keane JJ).
[115] Ibid 208–9 [50]–[53].
[116] Ibid 208 [47], 209 [53].
[117] Ibid 210 [56].
[118] Ibid 211 [61]–[62].
[119] Ibid 196 [5], 220–21 [93]–[94]; Sir Anthony Mason, above n 97, 120.
[120] McCloy [2015] HCA 34; (2015) 257 CLR 178, 221 [94]; Sir Anthony Mason, above n 97, 120.
[121] [2003] FCA 1433; (2003) 134 FCR 334.
[122] Public Service Regulations 1999 (Cth) reg 7(13).
[123] Bennett [2003] FCA 1433; (2003) 134 FCR 334, 337–8.
[124] Ibid 339–40.
[125] Ibid 339.
[126] Ibid 340; ALRC Report 112, above n 4, 55.
[127] Bennett [2003] FCA 1433; (2003) 134 FCR 334, 345–7.
[128] Ibid 353–4.
[129] Ibid 358.
[130] Ibid 354 [78], 359 [101].
[131] Ibid 359 [103].
[132] Ibid 362.
[133] Public Sector Management Regulations 1995 (SA) reg 15; ibid 360.
[134] Bennett [2003] FCA 1433; (2003) 134 FCR 334, 362. Justice Finn noted that this would not deprive the Government of the ability to protect confidential information due to public servants’ duties of loyalty and fidelity: at 352, 362–7.
[135] [2008] ACTSC 74; (2008) 220 FLR 21 (‘Goreng-Goreng’).
[136] Public Service Regulations 1999 (Cth) reg 2.1(3).
[137] Goreng-Goreng [2008] ACTSC 74; (2008) 220 FLR 21, 29.
[138] Ibid 29–30.
[139] Ibid 30.
[140] Lange [1997] HCA 25; (1997) 189 CLR 520, 567; Bennett [2003] FCA 1433; (2003) 134 FCR 334, 354.
[141] McCloy [2015] HCA 34; (2015) 257 CLR 178, 203 [31]; Lange [1997] HCA 25; (1997) 189 CLR 520, 561–2; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 50–51 [92]–[96] (McHugh J).
[142] Unions NSW v New South Wales (2013) 252 CLR 530, 557 [50] (‘Unions v NSW’); Monis (2013) 249 CLR 92, 147 [125], 205 [317]. For a discussion of the uncertainty regarding the steps to be taken in construing the statutory object in implied freedom cases, see James Stellios, ‘The Second Limb of Lange: The Continuing Uncertainties with the Implied Freedom of Political Communication’ (Research Paper No 14-49, ANU College of Law, Australian National University, 2015) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2558942>.
[143] This general approach is distilled from Unions v NSW (2013) 252 CLR 530; Tajjour [2014] HCA 35; (2014) 254 CLR 508; Wotton v Queensland (2012) 246 CLR 1; Stellios, above n 81, 591–3.
[144] Explanatory Memorandum, above n 14, 14.
[145] Contrast the approaches taken in: Monis (2013) 249 CLR 92; Attorney-General (SA) v City of Adelaide Corporation [2013] HCA 3; (2013) 249 CLR 1 (‘Adelaide City Corporation’); Tajjour [2014] HCA 35; (2014) 254 CLR 508; Stellios, above n 141.
[146] ACTV (1992) 177 CLR 106, 234; Monis (2013) 249 CLR 92, 148; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 201.
[147] ACTV (1992) 177 CLR 106, 142–5, 235; Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 33, 50, 78, 102; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 78 (Gummow and Hayne JJ).
[148] McCloy [2015] HCA 34; (2015) 257 CLR 178, 212–13 [67] (French CJ, Kiefel, Bell and Keane JJ).
[149] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 54 [105] (McHugh J).
[150] The availability of exceptions was relevant in Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1.
[151] McCloy [2015] HCA 34; (2015) 257 CLR 178, 217 [80] (French CJ, Kiefel, Bell and Keane JJ).
[152] Ibid 210–12 [57]–[63] (French CJ, Kiefel, Bell and Keane JJ). The existence of a reasonably practicable alternative was particularly significant to the outcome in Bennett [2003] FCA 1433; (2003) 134 FCR 334.
[153] Ibid 211 [58] (French CJ, Kiefel, Bell and Keane JJ); Tajjour [2014] HCA 35; (2014) 254 CLR 508, 550 [36].
[154] Murphy [2016] HCA 36; (2016) 90 ALJR 1027, 1080 [303].
[155] See above, Part II.
[156] McCloy [2015] HCA 34; (2015) 257 CLR 178, 219–20 [89] (French CJ, Kiefel, Bell and Keane JJ).
[157] Ibid 219 [87] (French CJ, Kiefel, Bell and Keane JJ).
[158] Ibid 216–17 [75]–[80] (French CJ, Kiefel, Bell and Keane JJ).
[159] Bennett [2003] FCA 1433; (2003) 134 FCR 334, 359; Goreng-Goreng [2008] ACTSC 74; (2008) 220 FLR 21, 29–30.
[160] LCA Submission 12, above n 20, 13–17; Law Council of Australia, Submission No 140 to the Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, 9 October 2015, 22 (‘LCA Submission 140’); Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, Report No 129 (2016) 102 (‘ALRC Report 129’).
[161] LCA Submission 12, above n 20, 13; LCA Submission 140, above n 159, 22; ALRC Report 129, above n 169, 100.
[162] LCA Submission 140, above n 159, 22; ALRC Report 112, above n 4, 9, 131.
[163] ALRC Report 112, above n 4, 274. See also at 157–60.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/SydLawRw/2017/12.html