Salomon, Michelle --- "Testing the bounds of secrecy: a better approach to protecting government information from unauthorised disclosures" [2009] ALRCRefJl 43; (2009) 94 Australian Law Reform Commission Reform Journal 51

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Reform Issue 94 Summer 2009

This article appears on pages 51–54 of the original journal.

Testing the bounds of secrecy

A better approach to protecting government information from unauthorised disclosures

By Michelle Salomon*

The government collects and produces vast amounts of information, much of it highly sensitive.

In some instances, we rely on public servants to keep information secret—in others, we want them to share, or publish, information to meet other public interests. When public servants have to make judgment calls, they should be able to turn to the law for certainty as to whether a disclosure will be applauded or criminalised.

In an increasingly interconnected world, it is critical that Commonwealth information that does not belong in the public domain remains secure and confidential. However, there also should be compelling efforts to ensure that government is transparent and accountable. Australia is striving to achieve the proper balance.

The Australian Law Reform Commission (ALRC) is currently conducting an inquiry into federal secrecy laws. This article will highlight one feature of the ALRC’s proposals by examining the prosecutions of three past cases under s 70 of the Crimes Act 1914 (Cth).^[1] The actual outcome of the prosecutions will be contrasted with what their outcome might be, hypothetically, had the offences been prosecuted under the ALRC’s proposed new offence: had the prosecution been required to prove harm to a specified public interest. Although it is not a present requirement for the prosecution to prove harm, the issue of harm is frequently discussed in sentencing offenders.^[2]

The ALRC’s Secrecy Review

The Australian Attorney-General, the Hon Robert McClelland MP, has asked the ALRC to review federal secrecy laws in Australia, thereby marking the fourth of a series of ALRC inquiries into the laws surrounding secrecy, privacy and freedom of information.^[3] In June 2009, the ALRC released a Discussion Paper containing proposals aimed at setting out directions for reform.^[4] The ALRC will submit a final report with its recommendations to the Attorney-General on 11 December 2009.

Secrecy laws regulate the disclosure of government information. There are roughly 500 secrecy provisions scattered throughout Commonwealth legislation—about 70% of these expressly attach criminal liability for breach, while the remainder establish a duty not to disclose certain information. However, where such provisions regulate Commonwealth officers, a breach of a duty not to disclose may attract a criminal penalty under s 70 of the Crimes Act. Under the Crimes Act, harm is neither an express nor an implied element of the offence that the prosecution must prove.

To address the lack of clarity, certainty and consistency surrounding secrecy provisions, the ALRC has made a preliminary proposal to repeal s 70 of the Crimes Act and create a general secrecy offence in the Criminal Code (Cth). Under that proposal, criminal penalties would only be imposed when the prosecution can prove that a nexus exists between the unauthorised disclosure and harm to identified public interests. Disclosures lacking any likely, intended or actual harm would normally be addressed by administrative remedies.^[5]

Criminalising disclosure

Under the ALRC proposals, criminal liability would only be imposed where the prosecution can prove that the disclosure did, was reasonably likely to, or intended to:

• harm the national security, defence or international relations of the Commonwealth;

• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction, the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue;

• endanger the life or physical safety of any person;

• pose a serious threat to public health or public safety;

• have a substantial adverse effect on personal privacy; or

• have a substantial adverse effect on a person in respect of his or her lawful business or professional affairs or on the business, commercial or financial affairs of an organisation.^[6]

The ALRC has formed the preliminary view that other kinds of harm such as harm to the effective working of government or harm to internal government processes are more appropriately protected by administrative processes.

Testing the bounds of secrecy: Three case snapshot

[1] R v Goreng Goreng^[7]

Ms Tjanara Goreng Goreng was a Commonwealth officer with the Office of Indigenous Policy Coordination. Ms Goreng Goreng was found to have intentionally disclosed information she obtained through her employment on several occasions:

A. Without authorisation, Ms Goreng Goreng emailed copies of work-related documents to her daughter, who was working on a school project related to Indigenous peoples. Two of the documents shared were already in the public domain, but the third was marked confidential.

B. Ms Goreng Goreng also disclosed four internal work emails that had been written by or sent to her supervisor. The emails discussed government plans to address alleged human rights violations taking place in the Mutitjulu Aboriginal community, including child prostitution, sexual abuse and pornography.^[8] Ms Goreng Goreng forwarded the emails to her friend, Ms Dorothea Randall, a finance officer and well-known member of the Mutitjulu community. In some of the emails, Ms Goreng Goreng made negative remarks about her supervisor’s professionalism, his motives and the Department’s policy.

C. Ms Goreng Goreng was also charged with disclosing the details of a confidential meeting she attended, where a Mutitjulu youth worker had made allegations of financial mismanagement against Ms Randall. This charge was not proved because the jury could not agree on a verdict.

Outcome under current secrecy framework

The jury found Ms Goreng Goreng guilty of five counts of breaching s 70 of the Crimes Act. The Supreme Court of the Australian Capital Territory ordered that Ms Goreng Goreng pay $2,000, subject to a three-year good behaviour bond. In sentencing, the court recognised that while the unauthorised disclosures did not result in actual harm, they generated considerable potential harm: there was the risk of further disclosure and misrepresentation of the position of the Office of Indigenous Policy Coordination, the Department and/or the Australian Government.

Hypothetical outcome under ALRC proposal

The harm discussed in the sentencing judgment is not a criminal offence under the ALRC model. In sentencing, the court stated that Ms Goreng Goreng’s conduct in leaking the information prejudiced the public interest in ‘fulsome and frank’ communications within government.^[9] In the ALRC’s view, this kind of damage to internal government processes is more appropriately handled through administrative remedies.

Under the ALRC’s proposed general secrecy offence, the court would have to consider whether the unauthorised disclosures actually caused harm, were reasonably likely to cause harm or intended to cause harm to one of the public interests specified by the ALRC.

The disclosures Ms Goreng Goreng made to her daughter are unlikely to meet any harm requirement. Most relevantly, the disclosures concerning the youth worker and her supervisor may have had a substantial adverse effect on the supervisor and youth worker’s personal privacy and/or professional affairs.^[10]

[2] R v Kessing^[11]

While Mr Allen Robert Kessing was employed as a customs officer with the Australian Customs Service (ACS) he worked on reports of an investigation into criminal activity and organised crime believed to be taking place at Sydney’s Kingsford Smith Airport. The reports were given a security classification and provided to Mr Kessing’s managers.

On 31 May 2005, an article appeared in The Australian, which described lax security at Sydney Airport citing information from the ACS reports.^[12] That article—which noted that airport workers ‘have been involved in drug-smuggling and stealing from passengers’—inspired a comprehensive expert review of airport safety which resulted in a $200 million Government plan to improve airport security.^[13]

Mr Kessing was charged with disclosing the information in the reports in contravention of s 70(2) of the Crimes Act (as Mr Kessing resigned from the ACS on 10 May 2005, he was charged under s 70(2), which covers former Commonwealth officers).

Outcome under current secrecy framework

A jury convicted Mr Kessing and the court sentenced him to nine months imprisonment, released upon entering into a $1,000 and nine-month good behaviour bond. In sentencing, the court recognised that there may have been public interest in the exposure of information on airport security, but stated that this was no justification for his communication of the content of the reports.^[14] The court acknowledged that the disclosure did not result in any actual harm, but said that it had the potential to damage the reputation of persons engaged in work at the airport and prejudice public confidence in the ACS.

Hypothetical outcome under ALRC proposal

The general secrecy offence proposed by the ALRC covers disclosures likely to harm public safety and/or prejudice the investigation of breaches of the law.^[15] It is likely that the disclosures made by Mr Kessing could have compromised airport security and the safety of people using the airport, and also may have prejudiced investigations into criminal activity at the airport.

Separate to the ALRC’s Inquiry, a Committee of the House of Representatives has recommended that the Australian Government enact legislation to protect people who make public interest disclosures (or ‘whistleblowers’). The Australian Government has not yet formally responded to this inquiry.^[16]

[3] R v Kelly^[17]

When Mr Desmond Patrick Kelly was a senior public servant with the Commonwealth Department of Veterans’ Affairs (DVA), the DVA sent him and 300 other employees a draft proposed statement for the Minister of Veteran’s Affairs in response to a review of veterans’ entitlements. Later that day, an email was sent notifying all recipients that the ministerial statement would not be made public and advised that previous communication concerning the proposal should remain confidential.

A few days later, an article was published in the Herald Sun on the Government’s proposal to cut the veterans’ package by $500 million, which would have the effect of denying benefits to, ‘war widows asking for rent assistance, soldiers bombed in Darwin and veterans exposed to radiation in Hiroshima’.^[18] The article claimed to have had access to confidential government documents and included a direct quotation from the withdrawn ministerial statement.

Mr Kelly was charged under s 70(1) of the Crimes Act for breach of a duty not to disclose information which came into his possession as a Commonwealth officer.

Outcome under current secrecy framework

A jury convicted Mr Kelly of one count of breaching s 70(1) of the Crimes Act and he was ordered to pay a $1,000 bond, for 12 months of good behaviour. The conviction was overturned on appeal on the basis that the evidence used to convict Mr Kelly was considered too weak to support a conviction—mere records of phone calls between Mr Kelly and the journalists did not suggest that he communicated the information to them.^[19]

Hypothetical outcome under ALRC proposal

Under the ALRC’s proposed offence, it would be unlikely that the prosecution could prove that relevant harm resulted from the alleged disclosure. The sentencing remarks considered the disclosure to have caused an embarrassment to government and the exposure of a bad policy decision, but under the ALRC’s proposal, a threat to the effective working of government would not be enough to warrant a criminal conviction.

Conclusion

As the following three cases highlight, the requirement that the prosecution prove that a disclosure caused, or was likely to cause harm to a specified public interest may lead to prosecutions being proved in a limited range of situations. While criminal sanctions play an important role in deterring unauthorised disclosures, the ALRC has suggested a greater focus on administrative sanctions and effective information handling policies and practices within government.^[20] The ALRC’s proposals seem to be more faithful to the factors that influence conduct in the workplace and would, if adopted, provide an improved framework for keeping secrets both safe and sound.

* Michelle Salomon is a student at the University of Maryland School of Law. She worked at the Australian Law Reform Commission as an intern, assigned to the Secrecy Inquiry, in July and August 2009.

The author wishes to thank Anna Dziedzic for her thoughtful comments on earlier drafts and mentorship.

As the recommendations of the ALRC’s final report are subject to parliamentary embargo, this article is based on the proposals in the ALRC’s Discussion Paper.

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[1] The final report of the Secrecy Inquiry was being finalised at the time of publication and is under a parliamentary embargo. This article is based on proposals made in the Australian Law Reform Commission’s Discussion Paper (DP 74), Review of Secrecy Laws (2009).

[2] Section 16A(2)(e) of the Crimes Act 1914 (Cth) provides that the court must have regard to any injury, loss or damage resulting from the offence.

[3] ALRC, For Your Information: Australian Privacy Law and Practice, ALRC 108 (2008); Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004); Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995).

[4] See ALRC, Review of Secrecy Laws, Discussion Paper 74 (2009).

[5] Ibid, Proposals 7–2 and 7–3.

[6] Ibid, Proposal 7–1. Proposal 7–2 organises the general secrecy offence into three tiers, designed to match a criminal penalty with the gravity of the conduct.

[7] [2008] ACTSC 74; Transcript of Proceedings, R v Goreng Goreng (Supreme Court of the Australian Capital Territory, Refshauge J, 14 October 2008), 5.

[8] V Violante, ‘Goreng Goreng guilty of email leak’, Canberra Times (online), 26 August 2008, <www.canberratimes.com.au/news/local/news/general/goreng-goreng-guilty-of-email-leak/1253796.aspx> at 16 September 2009.

[9] Transcript of Proceedings, R v Goreng Goreng (Supreme Court of the Australian Capital Territory, Refshauge J, 14 October 2008).

[10] See ALRC DP 74, Proposal 7–1(e) and (f).

[11] [2007] NSWDC 138.

[12] M Chulov, J Porter, ‘Airport staff “smuggling drugs”—Secret Customs report exposes criminal links’ The Australian, 31 May 2005, 1.

[13] J Wheeler, An Independent Review of Airport Security and Policing for the Government of Australia (2005); see also R Ackland, ‘Kessing’s Case Highlights the Media’s Ethics’, The Sydney Morning Herald (online), 27 February 2009, <www.smh.com.au/opinion/kessings-case-highlights-the-medias-ethics-20090226-8iz9.html> at 16 September 2009.

[14] [2007] NSWDC 138, [49] and [59].

[15] See ALRC DP 74, Proposal 7–1(b) and (d).

[16] See House of Representatives Standing Committee on Legal and Constitutional Affairs—Parliament of Australia, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector, 2009.

[17] [2006] VCC; R v Kelly [2006] VSCA 221.

[18] M Harvey and G McManus, ‘Cabinet’s $500m rebuff revealed’, The Herald Sun, 20 February 2004.

[19] R v Kelly [2006] VSCA 221, [34] (Callaway and Redlich JJA and Coldrey AJA).

[20] See ALRC DP 74, Ch 13–15.