Australian Press Council submission to the Australian Law Reform Commission in response to Discussion Paper 74, Review of Secrecy Laws.

August 12, 2009

Executive Summary

The Australian Press Council believes government information should be available to the public unless its disclosure would be likely to result in substantial damage to the public interest. Changes to secrecy laws should be viewed in the light of forthcoming amendments to Freedom of Information laws and should adopt a position in favour of open government similar to that that underlies the proposed changes to FoI

Any legislation permitting information to be kept secret should include an objects clause stressing the importance of open government. The default position must be that information is available, except in specific and carefully defined circumstances.

In scrutinising government conduct, it is essential that the media have access to information generated, or collected, by government bodies. The media must not be circumscribed by overly restrictive secrecy provisions intended to save officials from embarrassment.

The Council submits that action to address the inappropriate denial of access to information is long overdue. Legislative change to address the ridiculously high number of secrecy provisions in Australian law is required and the Council congratulates the Commission on its intention to recommend the removal of a majority of these provisions.

Further, the Council seeks the inclusion, in any recommendation, of rules relating to the declaration of any matter as secret. Those rules would need to define strictly the parameters of what should be secret in order to stop over-declaration of matters, and should make it easy to change the status of information from secret to open. Rules permitting information to be secret must include a provision making it an offence to withhold information from the public for an improper purpose.

The Council is particularly concerned with the impact that the proposed subsequent disclosure offence on media professionals. The importance of a public interest defence in such matters is paramount. Whether or not comprehensive public interest disclosure legislation is eventually approved by the Parliament, the Council submits that a public interest defence needs to be an integral part of the proposed subsequent disclosure offence.

The Council is also of the view that it is not appropriate to have offences of strict liability in legislation dealing with unauthorised disclosure. In all instances, the minimum requirement for a conviction should be that the offender knew that the information was confidential, or knew that he or she had a duty not to disclose the information, coupled with a reasonable foreseeability that the disclosure would be likely to cause damage to the public interest.

Freedom of Information

The Australian Press Council accepts that certain information held by governments must, of necessity, remain confidential. But the Council is of the view that government information should be available to the public unless it is foreseeable that its disclosure would be likely to result in substantial damage to the public interest.

Consequently, the Council considers that any changes to laws impacting on secrecy should be viewed in the light of forthcoming amendments of Freedom of Information laws.

The commission's final report on secrecy laws needs to take these changes into account and to adopt a position in favour of open government similar to that that underlies the changes to Freedom of Information.

The Council is also of the view that any legislation permitting or requiring information to be kept secret should include an objects clause that emphasises the importance of open government.

The default position must be that information is available, except in specific and tightly defined circumstances.

Media's role

Accountability and transparency of government to its citizens is a key element of a liberal democracy. This necessitates thorough scrutiny both of policy and of administrative processes. The Press Council recognises that the primary agencies that the Australian public relies on for such scrutiny are the media.

In scrutinising government conduct, it is essential that the media have access to information generated, or collected, by government bodies. Without such information it is not possible for voters in a liberal democracy effectively to exercise their franchise.

The media must not be circumscribed by overly restrictive secrecy provisions that exist merely to save ministers or officials from embarrassment. For this reason, the Council congratulates the commission on framing its putative secrecy offence in terms of "substantial" adverse effect to a person in clause (f) of Proposal 7-1.

Provided that the proposed offence was underwritten by an objects clause that stresses the requirement for open government as an over-riding imperative, the Council believes that the wording of the proposal is reasonable.

Declarations of secrecy

Many reports have illustrated that government information that should have been publicly available has either been classed as secret, or access has been denied inappropriately.

The Press Council is of the view that action to address the problem of inappropriate denial of access to information is long overdue. Legislative change to address the ridiculously high number of secrecy provisions in Australian law, as noted in paragraph 1.46 of the Discussion Paper needs to include recognition of the need for an increased amount of information being made available to the public and a limit on the type of information kept secret.

The Council congratulates the commission on its intention to recommend the removal of a majority of these provisions.

But the Council would go further. It would seek from the commission, as a concomitant to any general secrecy offence, the inclusion of rules relating to the declaration of any matter as secret.

Those rules would need strictly to define the parameters of what should be secret in order to stop over-declaration of matters; and should make it easy to change the status of information from secret to open.

Any such rules permitting government information to be kept secret or confidential should include a provision making it an offence to withhold information from the public for an improper purpose. Such an improper purpose should be defined to include concealing maladministration - including corruption, dishonesty, incompetence, negligence, inefficiency, extravagance or waste, inaction, delay and unfairness.

Moreover, officials should be provided with clear guidelines to assist them in making appropriate decisions when assessing the level of confidentiality to be assigned to information. Where guidelines are issued to public officers to help them make appropriate assessments as to secrecy, those same guidelines should be available to the public. In this context, the Press Council again calls on the government to declassify the Protective Security Manual.

All officials should receive adequate training in the correct implementation of any laws, regulations, guidelines or rulings relevant to the classification or declassification of confidential material. In addition, it is important that the process of assessing material for its secrecy level be subject to regular monitoring and review by an independent body.

Public interest defence

The Press Council is concerned with the impact that the proposed subsequent disclosure offence may have on media professionals where they have received or are in possession of information classified as secret. This extends to their employers, particularly where the information has been published.

In the Council's view, the importance of a public interest defence in such matters is paramount. Whether or not comprehensive public interest disclosure legislation is eventually approved by the Parliament, the Council submits that a public interest defence needs to be an integral part of the proposed subsequent disclosure offence.

The Council does that for two reasons.

First, the form of any public interest disclosure legislation is not known at this time and the legislation as finally passed may not provide a sufficient protection for public interest disclosures. Secondly, the Council is of the view that the protection for the media proposed in the Whistleblowing Protection report is inadequate in its protection of those who write fair third party reports of disclosed material.

In the formulation of offences and defences, provision should be made for the unique role of the media to ensure that their role as the chief scrutiniser of government conduct is not curtailed unnecessarily. A number of mechanisms might be utilised to achieve this purpose.

Media professionals are in a different position from government officials in relation to confidential information. Whereas the conduct of government employees is regulated by legislation and internal administrative procedures, which specify the official's duties and obligations with regard to handling information, a journalist or editor is subject only to criminal legislation. A journalist has a different set of professional obligations from an official and does not have the same training in information assessment.

Because media professionals are not subject, as officials are, to the formal disciplinary processes, a situation may arise where a minor disclosure by a journalist that is ostensibly in the public interest is treated as a breach of secrecy potentially warranting criminal conviction. By contrast, a public servant making a disclosure of the same information for the same purpose might instead be disciplined through various internal mechanisms, even though the duty breached is arguably greater than that breached by the journalist.

The commission will be aware that the conduct of media organisations done "in the course of journalism" are exempt from privacy legislation, on the condition that the organisation is publicly committed to observing certain standards with respect to privacy. In a similar vein, media professionals could be granted a limited exemption from prosecution under any proposed subsequent disclosure offence, provided that their organisations are publicly committed to a set of standards of appropriate conduct with regard to confidential government information. Such standards would specify that journalists must not publish government information that they know to be confidential unless there is a bona fide belief that publication would be in the public interest. The Press Council would be willing to cooperate with government agencies in the drafting of appropriate standards.

Confidential Sources

One aspect of the proposed subsequent disclosure offence that was not addressed in the Discussion Paper is the professional obligation of journalists to protect the identity of confidential sources. This obligation arises most frequently where a whistleblower within an organisation - often a government organisation - makes a public interest disclosure to the media. Officials who make public interest disclosures are often subject to reprisal, discipline or both. Thus the anonymity of the individual making the disclosure may be a condition for providing the information. The obligation to protect that anonymity is a duty that professional journalists take very seriously. However, the law rarely recognises that duty and journalists often find themselves subject to prosecution for contempt of court as a consequence. To address this conundrum, the Press Council seeks the introduction of legislation that gives journalists adequate immunity from prosecution for contempt, or for failing to cooperate with investigators, when refusing to divulge the identity of an individual who has made a public interest disclosure to the media.

Strict liability

The commission seeks to create offences of strict liability in relation to the proposed general secrecy offence. The Press Council is of the view that it is not appropriate to have offences of strict liability in legislation dealing with unauthorised disclosure. 'Strict liability' may have a place in internal disciplinary procedures for minor matters or in mechanisms dealing with compensation but it is not appropriate where the offence would result in a criminal conviction.

In all instances the minimum requirement for a conviction should be that the offender knew that the information was confidential, or knew that he or she had a duty not to disclose the information, couple with a reasonable foreseeability that the disclosure would be likely to cause damage to the public interest and that such damage would be more than merely trivial or an embarrassment to the government or to a public official. Before a criminal conviction is imposed there should be a finding, either that there was an intention to cause harm to a specified public interest, or recklessness as to the probability of such harm occurring.

Conclusion

The Australian Press Council congratulates the commission on the Discussion Paper, particularly in the way that it has sought to raise the bar on what standards should be applied in any general secrecy offence. It asks the commission to go further, to strengthen openness in Australian government and limit the necessity for the application of secrecy provisions.

See also
Submission to ALRC on its Secrecy Issues Paper

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