2.37 While open government is central to this Inquiry, another key principle of relevance is freedom of expression. This section of the chapter considers the international and domestic laws that protect this freedom, including the ICCPR and rights enacted in domestic law. It goes on to discuss the relationship between secrecy provisions and freedom of expression, including protection for ‘public interest disclosures’.
International Covenant on Civil and Political Rights
2.38 The ICCPR, described as ‘one of the most important human rights conventions of the United Nations era’, was adopted by the United Nations General Assembly on 16 December 1966 and ratified by the Australian Government in 1980. In the context of this Inquiry, the key provision is art 19:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
2.39 The Human Rights Committee of the United Nations (Human Rights Committee) has commented that the right to freedom of expression includes:
Not only freedom to impart information and ideas of all kinds but also freedom to seek and receive them regardless of frontiers and in whatever medium, either orally, in writing or in print, in the form of art, or through any other media of his choice.
2.40 The right set out in art 19(2) is qualified by the provisions in art 19(3)—that freedom of expression may be subject to ‘certain restrictions’. In its general comment on art 19, the Human Rights Committee stated that:
Paragraph 3 expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole. However, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be ‘provided by law’; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being ‘necessary’ for that State party for one of those purposes.
2.41 How do secrecy provisions—that appear to restrict freedom of expression—sit within the framework of art 19? The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights state that any such limitations on the ICCPR must: be recognised by the relevant article of the ICCPR; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim. The principles also state that the expression ‘public order’, as used in the ICCPR, ‘may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’. This expression is not limited to criminal law enforcement in the context of the ICCPR and includes, for example, respect for human rights.
2.42 The Human Rights Committee is responsible for monitoring compliance with the ICCPR. To date, Australia has submitted five reports, each providing an account of the development of legislation, administration and practice relevant to each article of the ICCPR over the time covered by each report.
2.43 In relation to art 19, Australia’s third report included reference, for example, to the FOI Act as enabling members of the public to request access to information in the possession of the Australian Government. The third reportalso noted the secrecy obligations resting on Australian public servants:
All Australian jurisdictions require their civil servants to keep confidential information relating to their work, duties and responsibilities. The Federal Government and some state governments also impose restrictions on public comment by civil servants.
2.44 Australia is also a signatory to the First Optional Protocol to the ICCPR. The Protocol allows individuals within Australia, who claim that their rights under the ICCPR have been violated, to submit a written complaint to the Human Rights Committee. Before submitting a complaint, the individual must have exhausted all domestic remedies. The Human Rights Committee publishes its ‘views’ on the complaint after consulting the state party on the matter. It is possible, therefore, for Australians who claim that their rights under art 19 have been violated to seek the views of the Committee on their individual case.
The protection of human rights in domestic law
2.45 In the domestic context, human rights may be protected in a number of ways: in the Australian Constitution; through an instrument, such as a Charter of Rights; through individual statutory protection; and/or through a combination of common law and statute.
2.46 Australia does not have a federal human rights statute, such as a ‘Bill of Rights’ or ‘Charter of Rights’. In comparison, New Zealand introduced a Bill of Rights in 1990; the United Kingdom passed the Human Rights Act in1998; and ACT and Victoria introduced, respectively, the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). Each of these formal instruments includes an express protection of freedom of expression.
2.47 On 10 December 2008, the Australian Government established a Committee, chaired by Fr Frank Brennan SJ to conduct a nationwide consultation aimed at
finding out which human rights and responsibilities should be protected and promoted in Australia, whether human rights are sufficiently protected and promoted, and how Australia could better protect and promote human rights.
2.48 The Committee reported on 30 September 2009 and recommended the introduction of a Human Rights Act as a step, among other things, to ‘improve the quality and accountability of government’.
2.49 While Australia does not have a general statute at the federal level protecting human rights, some human rights are protected, for example, in the Australian Constitutionand specific statutes, such as the: Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Australian Human Rights Commission Act 1986 (Cth); Disability Discrimination Act 1992 (Cth); and Age Discrimination Act 2004 (Cth). In addition to such express provisions, courts may interpret legislation in a manner that seeks to uphold human rights.
2.50 In what have been called the ‘free speech cases’, the High Court has held that the system of representative and responsible government established by the Australian Constitution implies a commitment to the freedom of political communication. In one of the first decisions of the High Court in this context, Mason CJ commented on its relationship to open and accountable government:
Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.
2.51 In Lange v Australian Broadcasting Corporation (Lange), the High Court affirmed that there is an implied freedom in the Australian Constitution to publish material discussing governmental and political matters, and that the common law of defamation must conform to these requirements. The Court stated, however, that laws could be passed to limit that freedom ‘to satisfy some other legitimate end’, provided two questions were satisfactorily answered:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government … If the first question is answered ‘yes’ and the second is answered ‘no’ the law is invalid.
2.52 While not as broad as a general right to freedom of expression, the implied guarantee of freedom of political communication amounts to a restriction on the legislative and executive power of the Commonwealth.
Freedom of expression and secrecy provisions
2.53 By restricting Commonwealth officers and others from communicating government information, secrecy provisions limit freedom of expression in certain respects. Their legitimacy, therefore, must be tested internationally against the backdrop of the ICCPR, and domestically against the implied freedom of political communication.
2.54 An instructive illustration outside Australia is the case of R v Shayler,in whichthe House of Lords considered whether a provision of the Official Secrets Act 1989 (UK) breached art 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression among member states. Section 1(1) of the Official Secrets Act makes it an offence for a current or former member of the security or intelligence services to disclose information relating to security or intelligence without lawful authority.
2.55 The House of Lords found that the secrecy provision was not incompatible with the right to freedom of expression, even though the offence was broadly framed, did not include a public interest defence, and, unlike other provisions of the Official Secrets Act, did not require that the disclosure be ‘damaging’. The House of Lords considered that the Official Secrets Act included ‘sufficient and effective safeguards’ to allow a person to communicate information—including a reviewable process of official authorisation for disclosures and avenues for complaint about maladministration. On this basis their Lordships concluded that the interference with freedom of expression was necessary to achieve the legitimate object of protecting national security.
2.56 In Australia, the breadth of s 70 of the Crimes Act 1914 (Cth) and the secrecy regulation under the now repealed Public Service Act 1922 (Cth)was identified as an issue in the context of the ICCPR when, in the third report on compliance with art 19 in 1999, Australia noted that such provisions ‘effectively prohibit the disclosure of all information by a federal public servant other than in the course of the officer’s official duty’. The report also referred to the conclusions of the review of federal criminal laws by the Committee chaired by Sir Harry Gibbs (the Gibbs Committee) in 1991 and particularly the comment by the Committee that ‘[t]he catchall provisions of the existing law are wrong in principle and additionally … they are seriously defective from the point of view of effective law enforcement’.
2.57 The context for assessing the validity of secrecy provisions in Australia is the implied guarantee of freedom of political communication in the Australian Constitution. In 2003, the matter arose in Bennett v President, Human Rights and Equal Opportunity Commission (Bennett). Peter Bennett, a public servant employed by the Australian Customs Service and President of a registered industrial organisation representing customs officers, publicly advocated the establishment of a Single Border Protection Agency and commented in the media on other customs matters. The Chief Executive Officer of Customs issued Bennett with a formal direction not to make comments in the media ‘about public business or anything of which you have official knowledge’. After Bennett made comments in a radio interview about proposed cuts to waterfront officers, he was disciplined for breach of the now repealed reg 7(13) of the Public Service Regulations 1999 (Cth):
An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.
2.58 Bennett’s formal complaint to the Human Rights and Equal Opportunity Commission, alleging discrimination and breach of his right to freedom of expression, was unsuccessful. He sought review in the Federal Court, arguing that reg 7(13) was invalid as it infringed the implied constitutional freedom of political communication.
2.59 Finn J held that reg 7(13) was inconsistent with the implied freedom of political communication and declared it to be invalid. In doing so, he applied the two-limbed test set out in Lange, quoted above. On the first limb, Finn J held that, as reg 7(13) controlled the disclosure by public servants of information about the ‘public business’ of the Australian Government, it effectively burdened freedom of political communication. Finn J then considered, under the second limb, whether the regulation was reasonably appropriate and adapted to serve a legitimate end compatible with maintaining the Australian system of representative and responsible government. He held that, while there may be public interests, or ‘legitimate ends’, that justify the burden that secrecy provisions impose on freedom of political communication—including national security, cabinet confidentiality, protection of privacy and the maintenance of an impartial and effective public service—a ‘catch-all’ provision that did not differentiate between the types of information protected or the consequences of disclosure went too far:
Official secrecy has a necessary and proper province in our system of government. A surfeit of secrecy does not. It is unnecessary to enlarge upon why I consider the regulation to be an inefficient provision other than to comment that its ambit is such that even the most scrupulous public servant would find it imposes ‘an almost impossible demand’ in domestic, social and work related settings …
The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community—information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operation, practices and policies of executive government.
2.60 Following the decision in Bennett, reg 7(13) of the Public Service Regulations was repealed and replaced by reg 2.1. The latter is expressly limited to situations in which it is reasonably foreseeable that the disclosure of official information could be prejudicial to the effective working of government. The constitutional validity of this new regulation was challenged in R v Goreng Goreng. In that case, Refshauge J of the Supreme Court of the Australian Capital Territory considered that, unlike former reg 7(13), reg 2.1 was not a ‘catch-all’ provision, but much more limited and targeted to the protection of a legitimate public interest in the effective working of government.
Public interest disclosure
2.61 A freedom to discuss governmental and political matters may include calling the government to account, for example in relation to allegations of mismanagement and even corruption. The legitimacy of such ‘public interest disclosures’—colloquially known as ‘whistleblowing’ is a key concern in the context of secrecy provisions. Are there circumstances in which a Commonwealth officer, or others, should be immune from punishment for breach of secrecy obligations, for disclosing information ‘in the public interest’.
2.62 The nature of the problem, and the key issues involved, are illustrated by the following case study:
Case study: R v Kessing
Allan Kessing was employed as a customs officer with the Australian Customs Service (ACS) until his resignation on 10 May 2005. Kessing signed an ‘Official Secrets’ form in which he acknowledged his understanding that all official information he had acquired in the course of employment was not to be published or communicated to any unauthorised person. While at the ACS, Kessing had worked on two reports regarding criminal activity and organised crime at Sydney airport. The reports were classified ‘Highly Protected’ and shared only within the ACS. On 31 May 2005, an article appeared in The Australian newspaper describing lax security at Sydney airport and citing information contained in the ACS reports. As a result, an expert review of airport security was commissioned, resulting in a government commitment to improving airport security.
Kessing was charged with disclosing the information in the reports in contravention of s 70(2) of the Crimes Act. Kessing denied communicating the information. Defence counsel argued that, even if Kessing were found to have committed the offence, he could claim that he had a lawful justification or excuse, that the public had an interest in being made aware of the information.
Kessing was found guilty. In sentencing, Bennett SC DJC commented that:
2.63 In commenting on this case, the House of Representatives Standing Committee on Legal and Constitutional Affairs noted that:
Much attention was focused on the apparent irony that Mr Kessing ended up with a criminal record but the leak resulted in a major review of airport safety and security by Sir John Wheeler after which the Government implemented a $200 million package to improve airport security. In some circles, Mr Kessing is considered a ‘hero’. …
Informal reporting is normal and acceptable, but there must be a reporting scheme that opens pathways to bypass line management and to formalise matters of concern. In this case, such a scheme could have provided an opportunity to press the issues of concern directly to senior management or to an oversight agency.
2.64 The following section considers the status of public interest disclosures at the federal level, and the relationship between such disclosures and this Inquiry.
Public interest disclosure legislation
2.65 Currently, there is some protection at the Commonwealth level for people who make public interest disclosures. As discussed in Chapter 12, s 16 of the Public Service Act 1999 (Cth), called ‘Protection for whistleblowers’, provides that a person performing functions for an Australian Government agency must not victimise or discriminate against an Australian Public Service (APS) employee who has reported breaches of the APS Code of Conduct to the APS Commissioner, Merit Protection Commissioner or the head of an agency. This provision is quite limited in scope. Importantly, it does not provide protection from criminal liability under secrecy laws. Professor AJ Brown has suggested that, at the Commonwealth level, there is no protection from
the legal or disciplinary consequences that might attach to an APS employee who reports a breach of the APS Code of Conduct. At best s 16 of the [Public Service Act] can be taken as relieving a whistleblower from liability to disciplinary action if the action could be shown to constitute victimisation or discrimination for the reporting of a breach.
2.66 Some Commonwealth legislation contains more comprehensive protection for whistleblowers working in particular areas. These provisions are considered in Chapter 10. In addition, all Australian states and territories have enacted legislation to facilitate the making of public interest disclosures and to protect people who make them. This legislation is intended, among other things, to provide immunity from prosecution for offences associated with breaches of state or territory secrecy provisions. For example, the Whistleblowers Protection Act 2001 (Vic) provides that a person who makes a ‘protected disclosure’ does not ‘commit an offence under … a provision of any other Act that imposes a duty to maintain confidentiality with respect to a matter or any other restriction on the disclosure of information’.
Whistleblower Protection report
2.67 In February 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs (Standing Committee) issued a report called Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (the Whistleblower Protection report). The Standing Committee recommended that the Australian Government introduce public interest disclosure legislation to provide whistleblower protections in the Australian Government public sector. The proposed legislation would establish a system whereby Commonwealth employees could make disclosures about ‘serious matters’ within their organisation, to other public service agencies or, in limited circumstances, publicly.
2.68 The Standing Committee recommended that the proposed legislation cover a broad range of participants in the Australian Government, including:
Australian Government and general government sector employees, including Australian Public Service employees and employees of agencies under the Commonwealth Authorities and Companies Act 1997;
contractors and consultants engaged by the public sector;
employees of contractors and consultants engaged by the public sector;
Australian and locally engaged staff working overseas;
members of the Australian Defence Force and Australian Federal Police;
former employees in one of the above categories; and
anonymous persons likely to be in one of the above categories.
2.69 The types of disclosure protected by the proposed public interest disclosure legislation would include, but not be limited to, ‘serious matters’ related to illegal activity, corruption, maladministration, breach of public trust, scientific misconduct, wastage of public funds, dangers to public health or safety, dangers to the environment, official misconduct (including breaches of codes of conduct) and adverse action against a person who makes a public interest disclosure. A person making a disclosure would need to have an honest and reasonable belief, on the basis of information available to them, that the matter concerns ‘disclosable’ conduct under the legislation.
2.70 The Standing Committee also made recommendations regarding procedures to facilitate the making of a public interest disclosure, and proposed that a person could make a public interest disclosure internally (that is, to the agency concerned) or externally (to the Commonwealth Ombudsman, the APS Commissioner or other integrity agency) or both.
2.71 A person who made a disclosure under the framework established by the proposed legislation would be protected from detrimental action in the workplace and receive immunity from criminal liability (including under secrecy offences), civil liability and administrative penalties.
2.72 The Standing Committee also considered that it was necessary to protect a person making a public interest disclosure to third parties—such as the media, a Member of Parliament, a trade union or a legal adviser—in certain circumstances. The Standing Committee stated that:
experience has shown that internal processes can sometimes fail and people will seek alternative avenues to make their disclosure.
There are cases with implications of the utmost seriousness, when disclosure through third parties has been initially necessary and consequently beneficial. … A public interest disclosure scheme that does not provide a means for such matters to be brought to light will lack credibility.
2.73 Further, the Standing Committee considered that:
It may be possible that in some cases, for example, where an agency has not fulfilled its obligations to a whistleblower, the disclosure framework within the public sector may not adequately handle an issue and that a subsequent disclosure to the media could serve the public interest.
2.74 The Standing Committee’s final recommendation, however, confined protected public interest disclosures to third parties to very narrow circumstances. A disclosure to a third party external to the public service would only be protected where the matter already had been disclosed internally or to an external authority, but had not been acted on in a reasonable time, and the matter threatened immediate serious harm to public health or safety.
2.75 The recommendation relating to disclosures to third parties has been criticised as being too limited. Brown, for example, has commented that while it is reasonable to require people to proceed through internal channels or external integrity agencies before disclosing a matter publicly, the requirement that the matter must ‘threaten immediate serious harm to public health and safety’ is too restrictive in that it excludes from protection public interest disclosures to the media regarding major fraud, corruption and major abuses of power. Brown also argues that the recommended provision fails to cover the situation in which the external agency does not adequately address a public interest disclosure, so that ‘even if the Ombudsman had looked at the problem and failed to act, or got it wrong, a public servant who justifiably went public could still be sacked, sued or prosecuted’.
2.76 In a submission to this Inquiry, Brown stated that the proposed approach
fails to contemplate what would occur in circumstances where an official had reason to believe not only that their own agency would not respond appropriately to the disclosure, but that the ability of the relevant external integrity agency to respond appropriately had also been corrupted or compromised.
2.77 Brown suggested that a better approach would be one that protects public interest disclosures to persons outside government:
where the matter has been disclosed internally to the agency concerned and to an external integrity agency of government, or to an external integrity agency alone, and has not been acted on in a reasonable time having regard to the nature of the matter; or
where a matter is exceptionally serious, and special circumstances exist such as to make the prior disclosure of the matter, internally or to an external integrity agency, either impossible or unreasonable (for example, in some circumstances involving a serious and immediate threat to public health or safety).
2.78 At the time of writing, the Australian Government had not responded to the Whistleblower Protection report, although the Government has indicated that it intends to develop public interest disclosure legislation in 2009. Given the recent Standing Committee inquiry and report, and the Government commitment to introduce public interest disclosure legislation, the ALRC has confined its consideration in this Report to the interaction between the proposed public interest disclosure legislation and secrecy laws. This issue is discussed in Chapters 7 and 10.
2.79 The ALRC does, however, reaffirm its recommendations made in previous reports that the Australian Government should legislate to introduce a comprehensive public interest disclosure scheme covering all Australian Government agencies. In the ALRC’s view, a robust public interest disclosure regime is an essential element in an effective system of open government. For the purposes of this Report, the ALRC is proceeding on the basis that such legislation will be put in place and that it will largely reflect the recommendations made in the Whistleblower Protection report. The ALRC recognises, however, that the final form of the legislation may differ from those recommendations.