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Australian Press Council submission to the Australian Law Reform Commission in response to Issues Paper 34, Review of Secrecy Laws. 18 February 2009 Executive summary
Submission Accountability of government to its citizens is the key to ensuring efficient administration and maintaining the welfare of the Australian people. Accountability, by definition, necessitates thorough scrutiny, not only of government policy, but also of administrative processes and outcomes. While government agencies, such as the Ombudsman, each have important roles to play in this task, the primary agency that the Australian public relies upon to achieve scrutiny of government is the media. In carrying out this crucial role of 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 to facilitate in the public an awareness of whether governments are effective in promoting public welfare or a critical understanding of why some policies succeed and others fail. 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 damage to the public interest. As many reports over the years have illustrated, including the Australian Law Reform Commission's Issues Paper 34, much government information that should have been publicly available has either been classed as secret, or access to information that is not actually secret has been denied inappropriately. The Press Council is of the view that it is long overdue that the problem of inappropriate denial of access to information should be addressed The Council recognises that it may be impractical to abolish all laws restricting access to government information. What the Council seeks is a thorough overhaul of existing legislation to minimise its potential to restrict accountability of government action and to remove, to the greatest extent possible, the legislation's vulnerability to be exploited by governments and officers seeking to evade public scrutiny. In this regard, there are two aspects of secrecy laws the Council seeks to reform. First, the Council calls for revision of those laws that facilitate, or impose, secrecy and confidentiality, and revision of related administrative practices, in order to increase the amount of information made available to the public and limit the type of information kept secret. Secondly, the Council asks for reform of criminal offences and administrative disciplinary procedures involved in penalising those who have made unauthorised disclosures, in order to remove disincentives to disclosure where such disclosure is in the public interest. Laws, regulations and procedures which permit or encourage excessive secrecy Questions 2-6 of Issues Paper 34 ask whether secrecy provisions should be formulated so as to establish a general prohibition on disclosure of information together with a codification of the circumstances in which disclosure should be allowed. The Press Council is of the view that such a general prohibition would provide excessive scope for the inappropriate withholding of material that should be made accessible. It would be preferable if secrecy provisions were framed so that open access is the default, i.e. legislation should state that information is to be made available to the public except in specific circumstances to be defined as narrowly as possible. There should not be any "catch-all" provisions. Further, secrecy legislation should include a clause stating that information is not to be classified as secret unless its disclosure would be highly likely to cause significant damage to the public interest. In Issues Paper 34 the commission refers to the 1999 report of the Australian National Audit Office, which noted that "over-classification" is a common occurrence in government agencies. Defining the circumstances in which information should be secret as narrowly as possible would assist in mitigating the extent to which legislation can lead to over-classification. Narrowly drawn definitions of the classes of secret information have greater potential to prevent abuse or misuse of the legislation. However, narrowly formulated definitions will not, in themselves, be adequate to address the problem of over-classification. There are several other mechanisms which would contribute to greater openness. First, any regulatory mechanisms that define the duty of officers to keep information confidential should be contained in legislation that is subject to parliamentary scrutiny, not in subordinate legislation. This includes any definitions establishing the scope of secrecy provisions. It is not appropriate that governments can extend or alter the level of secrecy, which officers are obligated to administer, without having to justify the change to the elected representatives of the Australian people. Secondly, legislation which deals with government secrecy or confidentiality should include a preamble or objects clause emphasising the importance of open government and stressing that material should not be treated as secret unless the public interest in keeping the material confidential outweighs the public interest in making the material accessible. Thirdly, any legislation 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). Further, officers of government organisations should be provided with clear and thorough guidelines to assist them in making appropriate decisions when assessing the level of confidentiality to be assigned to information. Where guidelines are issued in order to assist public officers to make appropriate assessments as to secrecy, those guidelines should be available to the public. This is important in order to facilitate any application for judicial review of secrecy decisions. It also enables citizens to develop an understanding of the extent and character of secrecy processes. With this in mind, the Press Council calls on the government to declassify the Protective Security Manual. As a concomitant to the provision of adequate guidelines, all government officers should receive adequate training in the correct implementation of any laws, regulations, guidelines or rulings relevant to the classification 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. When considering the level of government openness, secrecy laws cannot be assessed separately from Freedom of Information legislation. Many of the issues that arise in relation to secrecy legislation also arise in relation to Freedom of Information law. It is a curious paradox that legislation, which was introduced for the purpose of increasing public access to government information, is often relied upon by governments in blocking such access. Reform of secrecy laws will achieve very little if Freedom of Information is not reformed at the same time. As with secrecy law reform, Freedom of Information legislation should be formulated so that open access is the default, with access only being denied where disclosure would be likely to cause damage to the public interest. The Press Council calls for the narrowing of exemptions to the right of access, in particular with regard to Cabinet documents and material that might reveal deliberative processes. Freedom of Information legislation should also include a provision making it an offence to withhold access to information for an improper purpose. In any legislation where personal information can be withheld from disclosure on the grounds of secrecy, the Council proposes:
Offences, exemptions and defences The Press Council is chiefly concerned with two specific classes of persons who might be subject to prosecution for breaching secrecy laws:
In many, if not most instances, when the media publish information that has been leaked from government, there is some element of public interest involved. The Press Council is of the view that, to the extent that the public interest is being served by the disclosure of confidential government information to or by the media, the disclosure should not give rise to sanction, whether criminal, civil or administrative. In the formulation of offences and defences, provision should be made for the unique role of the media in order to ensure that its role as the chief scrutineer of government conduct is not curtailed unnecessarily or excessively. A number of mechanisms might be utilised to achieve this purpose. First, it is essential that any legislative provision establishing an offence for unauthorised disclosure exempts from its scope those disclosures made for public interest reasons. Such reasons should include, but not be restricted to, the exposing of maladministration. If public interest disclosures are not exempt from the scope of the offence, the legislation should include a defence for the making of disclosures which are in the public interest or which are made for public interest purposes. Secrecy legislation should also be complemented by "whistleblower protection" legislation, which should include provision for disclosures to the media. Such legislation should provide immunity from both criminal and administrative penalty for disclosures made for public interest purposes. Media professionals are in a different position from government officers in relation to confidential information. Whereas the conduct of government employees is regulated by legislation and internal administrative procedures, which specify the officer's duties and obligations with regard to information handling, a journalist or editor is subject only to criminal legislation. A journalist will have a different set of professional obligations and does not have the same training in information assessment. This raises difficulties, which need to be considered when framing secrecy legislation. Because media professionals are not subject to the disciplinary processes, which are available in relation to public servants, a situation may arise where a minor disclosure that is ostensibly in the public interest is treated as a breach of secrecy warranting criminal conviction. By contrast, a public servant making a disclosure of the same information for the same purpose might instead by disciplined by way of a range of internal mechanisms, even though the duty breached is arguable a higher one than that breached by the journalist. To address this problem the Press Council proposes that specific provision be made for the conduct of media professionals in receiving and publishing confidential information. Members of the commission will be aware that the conduct of media organisations done "in the course of journalism" are exempt from privacy legislation, on condition that the organisation is publicly committed to observe certain standards with respect to privacy. In a similar vein, media professionals could be granted a limited exemption from prosecution under secrecy legislation, provided that their organisations 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 sincerely held 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. In Issues Paper 34, the commission asks whether it is appropriate to have offences of strict liability or absolute liability in relation to unauthorised disclosure of confidential information. The Press Council is of the view that it is not appropriate to have either offences of strict liability or absolute 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, knew that he or she had a duty not to disclose the information, a reasonable expectation 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 should be 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. A question posed by the commission in Issues Paper 34 was whether the receiving of confidential information should be subject to penalty. The Press Council is of the view that the receipt and holding of information should only be treated as an offence if the recipient has an intention to use the information maliciously, recklessly or with intent to obtain benefit. Penalties When considering appropriate penalties for unauthorised disclosure, the Australian Press Council is of the view that the penalty should be determined in such a way that it promotes the fundamentally important idea of balancing competing public interests, i.e. the public interest in open and accountable government against the public interest in ensuring that information is protected where its disclosure would result in significant damage to the welfare of an individual or to the people of Australia. If penalties are harsh or imposed unnecessarily they have the potential to act as a disincentive to disclosure - even where such disclosure has the potential to act to improve the administration of Australian government. Since each case must be considered on its merits, it is important that sentencing guidelines be issued to assist the court to achieve proper balance. The key point is that the penalty should be appropriate to the offence, taking into account both the seriousness of the breach, the purpose for which the information was disclosed and its consequences. It is not appropriate to impose a significant penalty where the information disclosed is merely trivial, where there has been no significant damage to the public interest (or no risk of such damage), where the offender has been negligent rather than reckless, or where there was an absence of intent. These are considerations for the court rather than the parliament. Courts should be given discretion to impose a lighter penalty and guidelines as to what penalty is apt in the circumstances. The Press Council is of the view that legislation should not impose any minimum penalty. With specific regard to public interest disclosures, it is not appropriate to impose a custodial sentence where the disclosure was made for the purpose of exposing maladministration. Nor should a custodial sentence be imposed unless the offender had a clear intention of obtaining benefit or had a malicious intent. The onus for establishing such intent should be on the prosecution. The making of public interest disclosures to the media frequently results in the imposition of severe administrative penalty (such as termination of employment) upon the government officer who leaked the information to the press. Before a severe administrative penalty is imposed, offenders should be given an opportunity to have their case heard by a court or tribunal that can adjudicate on questions of public interest and intent as well as make findings of fact. Once criminal proceedings have been commenced any administrative penalty should be stayed pending the outcome of the criminal action. Confidential Sources One aspect of unauthorised disclosure of confidential government information that was not addressed in Issues Paper 34 was the professional obligation of journalists to protect the identity of confidential sources. This obligation arises most frequently where a whistleblower within an organisations - often a government organisation - makes a public interest disclosure to the media. There may be sound reasons for trusting a journalist rather than making a disclosure to the Ombudsman or to an internal government agency. However, most whistleblower protection legislation either does not provide for disclosures to the media, or such provision is not adequate. Public officers 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 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. Conclusion The Australian Press Council appreciates that the inappropriate handling of important information can have serious consequences that may, in certain instances, warrant a high level of secrecy. However, there is much information generated and collected by government that is treated as confidential when it would contribute greatly to public debate of government conduct without threatening safety or security or compromising the public interest in any way. The Press Council seeks the reform of all laws dealing with access to government information to increase transparency and facilitate public debate and accountability. Return to Documents with the |
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