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CoseNZa, Isabella --- "Reference update: Balancing Secrecy and openness: Plugging leaks and allowing flows" [2009] ALRCRefJl 21; (2009) 93 Australian Law Reform Commission Reform Journal 64


Balancing secrecy and openness: Plugging leaks and allowing flows

By Isabella Cosenza*

That there is an inherent tension between the principles of open and accountable government, and the operation of secrecy laws, is not a startling or new observation. How such a tension should be reconciled, however, presents immediate and novel challenges.

It is axiomatic that Commonwealth information needs to flow within and between governments and to the private sector, but it is undesirable and detrimental for certain information to be leaked. How to prevent simultaneously the under- and over-flow of Commonwealth information, requires a nuanced grip on the information tap. The challenge of regulating the flow is intensified by the flood of information collected, generated and held by government that is also subject to laws regulating privacy, freedom of information, archiving, and duties of fidelity and loyalty.

Sir Anthony Mason, when a Justice of the High Court of Australia, stated nearly three decades ago that ‘it is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action’.1 The information tap should not be closed so tightly as to deprive individuals of their implied constitutional freedom to communicate about political matters, or to allow the benefits of ‘whole-of-government’ approaches to policy making, integrated service delivery, and cross-agency investigations to go unquenched. Equally, the information pipeline needs to be plugged to preclude leaks which will, for example, compromise the defence of Australia, endanger the lives of intelligence operatives or protected witnesses, or result in the disclosure of information considered sacred by Indigenous people.

The Australian Law Reform Commission (ALRC) is currently considering the types of information that should be protected by secrecy laws, the circumstances in which it is appropriate for secrecy laws to apply, the defences that should be available, and the consequences of breaching such laws. This follows receipt by the ALRC of Terms of Reference from the Attorney-General of Australia to review options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government through providing appropriate access to information. The ALRC is directed to consider relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality.

There is a plethora of secrecy provisions in the Commonwealth statute book—the ALRC has so far identified over 500 provisions scattered throughout 173 pieces of primary and subordinate legislation, the majority of which create criminal offences. These provisions protect diverse types of information from unauthorised disclosure in varying circumstances. They often carry inconsistent maximum penalties. For example, the unauthorised disclosure of information relating to the affairs of a person in some cases attracts a low-level fine of $550,2 and in others a term of imprisonment for two years and a fine of $13,200.3 Disclosing information about the identity of a person in the national witness protection program carries a maximum penalty of 10 years imprisonment,4 while publishing information that discloses the identity of an agent or officer of the Australian Security Intelligence Organisation carries a maximum penalty of imprisonment for one year—even in circumstances where such publication could endanger the life of that agent or officer.5 Commonwealth officers may also face administrative action for breach of secrecy provision, ranging from reprimands to dismissal.

The earliest secrecy provisions, inserted shortly after federation, were principally about protecting information concerning Australia’s defence and security. However, the Commonwealth’s expanded role in other areas such as taxation, health, regulation and welfare after the mid-1940s led to a proliferation of secrecy provisions.6 In 1979, the Senate Standing Committee on Constitutional and Legal Affairs observed that it appeared to have become a ‘fashionable contemporary drafting practice to insert in every new statute a standard provision making it an offence for an official governed by a statute to disclose without authorisation any information of which he has gained knowledge officially’.7

The sheer breadth and consequent ambiguity of some secrecy provisions has been criticised. Paul Finn (before he became a Federal Court judge) remarked that it is ‘particularly obnoxious’ that ‘secrecy obligations imposed by public service legislation are so all encompassing and unreasonable in their information coverage that strict compliance with them is practically impossible’.8 Most secrecy provisions criminalise unauthorised disclosures regardless of whether such disclosures are likely to have any detrimental impact on an identifiable public interest. John McGinness has noted that many provisions expose officials to penal sanctions for disclosing information, no matter how innocuous, or for disclosing information that already may be public knowledge.9

Leaks may be described as the ‘black market of official communication’.10 Recent media complaints about allegedly heavy-handed investigations into the leaking of Commonwealth information have brought the operation of secrecy laws into sharp focus. In September 2008, the Australian Federal Police executed search warrants at the premises of Philip Dorling, a journalist with The Canberra Times. Dorling had written an article, quoting material from classified briefing papers prepared for the Defence Minister, the Hon Joel Fitzgibbon MP. The article suggested that China, North Korea, South Korea and Australia’s close ally Japan, are priority targets for Australian intelligence.11 The execution of the search warrants attracted strident criticisms from media groups who said it was an attack on the freedom of the press, and sent ‘a loud message to public servants and people in general to warn them off speaking to the press’.12

In October 2008, Tjanara Goreng Goreng was convicted for a breach of secrecy laws. She leaked confidential emails, which had come into her possession as a public servant, to a Mutijulu council member about the Government’s plans to combat sexual abuse and petrol sniffing in Northern Territory communities. Justice Refshauge accepted that the emails sent were intended for ‘likely dissemination’ more widely among Mutijulu community members to assist them in their dealings with the Commonwealth.13 Goreng Goreng reportedly said that she forwarded the emails to help the Mutijulu community because its members were being ‘seriously oppressed’.14 Justice Refshauge acknowledged that while there are ‘proper pressures to prevent undue secrecy in government’, there are a number of legitimate reasons to limit the disclosure of information. These include that it is the prerogative of the government to decide policy and not unauthorised members of the public service, and that dissemination of publicly uncorroborated allegations can destroy the reputation of innocent individuals.15 Goreng Goreng was released pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) without passing sentence upon entering in a recognisance in the sum of $2,000, to be of good behaviour for three years and to pay a fine in the sum of $2,000.16

In 2007, Allan Kessing, a former officer of the Australian Customs Service, was convicted and sentenced for breach of secrecy laws for providing to journalists ‘protected’ reports dealing with security at Sydney Kingsford Smith Airport. The disclosure of the reports was held to have had the potential to compromise operational security and methodology.17 In mitigation, Kessing submitted that his disclosures benefited the public interest. In particular, he submitted that they led to the appointment of Sir John Wheeler to conduct a review examining threats from organised crime at airports and the adequacy of existing security requirements, and to the government taking action following that review.18 Kessing’s actions and the subsequent events focused attention on issues concerning the proper role and methods of whistleblowers in exposing malpractice or corruption.19

Do secrecy laws remain a relevant and appropriate mechanism for regulating disclosures of Commonwealth information? Do information blockages hinder collaborative arrangements between the public and private sectors in addressing significant challenges of our times, such as terrorism? Do they prevent the ship of state from sinking due to leaking, or inhibit that ship and its passenger citizens from arriving at the destination port of open government? The ALRC will consult widely with stakeholders and encourages those with an interest in the Inquiry to contact it. The ALRC’s Issue Paper was released on 2 December 2008, and its final Report is due to be presented to the Attorney-General by 31 October 2009.

*Isabella Cosenza is a Senior Legal Officer at the Australian Law Reform Commission.

Endnotes

1 Commonwealth v Fairfax [1980] HCA 44; (1980) 147 CLR 39, [27].

2 Health Insurance Act 1973 (Cth) s 130(1).

3 For example, A New Tax System (Bonuses for Older Australians) Act 1999 (Cth) s 55 (with application of Crimes Act 1914 (Cth) s 4B).

4 See Witness Protection Act 1994 (Cth) s 22(1).

5 Australian Security Intelligence Organisation Act 1979 (Cth) s 92.

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

7 Parliament of Australia—Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978 (1979), 233.

8 P Finn, Official Information, Integrity in Government Project: Interim Report 1 (1991), 43–44.

9 J McGinness, ‘Secrecy Provisions in Commonwealth Legislation’ [1990] FedLawRw 3; (1990) 19 Federal Law Review 49, 72.

10 G Terrill, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond (2000), 211.

11 P Dorling ‘Revealed: Our Spy Targets’ The Canberra Times (Canberra) 14 June 2008, 1; J Waterford, ‘A Very Leaky Case’, The Canberra Times (Canberra), 27 September 2008, 1.

12 N Towell ‘Press Freedom Under Siege’, The Canberra Times (Canberra) 24 September 2008, 1.

13 R v Goreng Goreng [2008] ACTSC 74.

14 S Pryor, ‘Ex-Public Servant “Doing Fabulous Job” Escapes Jail Over Emails’, The Canberra Times (Canberra), 15 October 2008, 3.

15 R v Goreng Goreng [2008] ACTSC 74.

16 R v Goreng Goreng (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 October 2008).

17 R v Kessing [2007] NSWDC 138, [43].

18 Ibid, [49].

19 In July 2008, the Australian Government referred the issue of whistleblower protection in the Australian Government public sector to the House of Representatives Standing Committee on Legal and Constitutional Affairs.