Australian Press Council Submission to the Senate Committee of Privileges on its review of unauthorised disclosures from parliamentary committees.

27 April 2005

Introduction

In March and May 2003, the Chairman of the Council, Professor Ken McKinnon, in letters to the then Chair of the Senate Committee of Privileges, Senator Robert Ray, made the points that the Senate has little ability to stop unauthorised leaks from committees, and that the leakers are, in almost all cases, members of the relevant committee. (These letters and Senator Ray's responses formed the basis of Committee of Privileges Report No.113 to which the Council directs the committee.)

Two years later, the Committee of Privileges appears to recognise the futility of classing all unauthorised disclosures as contempts and now is attempting to distinguish those disclosures that may interfere with the work of committees from those that do not.

Fair reports of leaked information

In the Press Council's view, the committee needs to make one important distinction. In determining what, if any, disclosure interferes with the working of committees or of the Senate, it needs to distinguish the leak itself from the publication of the leak.

In cases cited by the Senate in the history of such disclosures, the publisher, the editor and, occasionally, the journalist who wrote or published a story arising from the leak have been cited as responsible parties. They are not, however, the people primarily responsible for the leak.

In his response to Professor McKinnon, Senator Ray described the publishers of such leaks as 'fences': "[A]s thieves require a 'fence' for their stolen goods, so too do leakers require an outlet for their improperly-obtained information. The media are no more exempt from punishment than are receivers of stolen goods, even if the thieves are never caught."

This analogy does not hold because, in most cases, there is a public interest involved in the disclosure of information on matters of public concern, in a timely fashion. But, even more iniquitous and hypocritical is the implication that it would be proper to punish as a matter of course the journalist (and possibly the editor and publisher), while not even pursuing the perpetrator of the 'leak'.

Any such proposal is an unacceptable and completely unnecessary restriction on press freedom. There is a public interest in the full disclosure of information on matters affecting the political process, and the High Court has unanimously recognised an implied freedom of communications on political matters in the Constitution. In the Lenah Game Meats case, the Court recognised that the public interest in disclosure of information would outweigh concerns that the material was obtained by illegal methods - provided the media organisation which published (or broadcast) the material had not itself been involved in the illegality.

Any proposal to punish the fair publication of public interest material while ignoring the source of the leak would have a chilling effect on discussion of political matters, particularly in cases where a government may be deliberately 'sitting on' a committee report, and the media organisation feels that there are good public interest reasons for its immediate publication.

In the Hansard of 16 March the impression is given that some aspects of unauthorised disclosure would be retained, at least in regard to the disclosure of in camera evidence. While that discussion recognises the source of such leaks as politicians, there is no indication that the Committee of Privileges has any intention other than to cite as a matter of course those whom it can when such a leak is disclosed: in most cases the journalists who publish the leak, and their editors and publishers.

Any such proposal is unjust as it removes any burden of proof on the Senate and exposes journalist, editors and proprietors to punishment in cases where the offence is inadvertent or where there may be a strong public interest justification for the release of the material. That justification may include exposure of corruption or illegality that the Parliamentary committee may be reluctant to see in print.

The press in pursuit of its role to inform cannot ignore such information. Newspapers have a duty to the public to publish information that becomes available to it. As The Australian is reported as saying in Report No 99 (p7):

A free press in a democracy cannot resolve such conflicts simply by closing its eyes to material which is available to it on topics which are of clear public importance and active public debate.

Members of the Committee surely do not envisage a world in which it is the duty of media organisations to ignore received information until it is published elsewhere or until there has been an official release. That happens only in countries where there is authoritarian control of the press, and other aspects of life.

Plugging the leaks

It is clear from Committee of Privileges and the recent Senate discussion that Senators recognise the source of unauthorised leaks: members of the committee that sprung the leak. The Senate recognises this but, as in the past, there is no indication that the Senate will take the appropriate action to find the culprit. In lieu the Senate and its committees have taken the easy course of shooting the messenger, the press, rather than finding ways of disciplining Senators or finding ways of discovering and closing the source of the leaks. As The Australian said (Report 99 of August 2001, p7):

In relation to leaks that do occur, the media and the public will know that the Parliament is committed to the integrity of its processes when it begins regularly to deploy the sophisticated documentation examination techniques now available for determining whether a copy has been made of an original to identify and deal with members who act in disregard of the terms of confidentiality of documents supplied to them as committee members.

Has the Committee of Privileges considered adopting powers to check the hard drives and telephone records (including mobiles) of committee members and staff when there has been a leak? Has it considered the same kind of courses for Senators that it urges on Heads of Commonwealth departments and authorities and on editors and journalists?

All parliamentarians, without exception use the press to their own ends. Skill in the exploration or even manipulation of the media is a fundamental tool of the modern parliamentarian. Can any member of the Senate, particularly anyone who is or has been a Minister, put hand on heart and truthfully declare that s/he has never (appropriately or inappropriately) leaked information?

Parliament leaks profusely and the press most often does little more than report what has been common knowledge for some time around Parliament House, especially in regard to evidence before, and the conclusions of, Senate Committees.

Does anybody still believe that the government of the day does not selectively leak ahead of official announcements at press conferences, nor put 'spin' on the news, nor tell part truths? Does that constant flow of unauthorised information interfere with the integrity of Parliament? On the contrary it might well be argued that, in the modern world, it is the press that gives Parliament and its committees their standing.

Could a modern Government govern successfully if unable to condition the public through selective leaks? Leaking is endemic and it is the members of Parliament that do it. Given modern devices it is something that the Committee of Privileges will never be able to control. It might be more productive to work more openly.

Conclusion

In an act analogous to King Cnut demonstrating to his courtiers his inability to affect the English tides, the Senate appears to be recognising that it has little ability to stop unauthorised leaks from committees, and to be recognising that the leakers are, in almost all cases, members of the relevant committee. If the Committee of Privileges seriously wants to deal with the question of unauthorised disclosures, either of in camera material or of matters more widely, the Press Council urges it to deal with these concerns by addressing the actions of those who leak the material, not those who publish information of public interest and concern that their readers are entitled to have.

See also
exchange of correspondence between Professor Ken McKinnon and Senator Robert Ray.

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