Public interest disclosure

Public interest exceptions in secrecy provisions

7.109   Section 70 of the Crimes Act does not create an exception or defence relating to the disclosure of information ‘in the public interest’. While s 79 of the Crimes Act permits a person to communicate prescribed information to a ‘person to whom it is, in the interests of the Commonwealth … his or her duty to communicate it’,[116] the meaning and scope of this exception is unclear.[117]

7.110   As noted in Chapter 3, some secrecy provisions in Commonwealth legislation include more confined exceptions that permit certain disclosures in the public interest. However, such disclosures are generally only permitted by senior officers and for limited purposes. For example, the Law Enforcement Integrity Commissioner Act 2006 (Cth) permits the Integrity Commissioner to disclose certain information if he or she is satisfied that it is in the public interest to do so.[118] Similarly, the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) allows the disclosure of information where the information concerns matters outside Australia and the Director-General of the Australian Security Intelligence Organisation (ASIO) ‘is satisfied that the national interest requires the communication’.[119]

7.111   Occasionally, legislation provides that a minister may determine that a disclosure is in the public interest. For example, the Food Standards Australia New Zealand Act 1991 (Cth) permits the disclosure of certain information if the responsible minister certifies, by instrument, that it is necessary ‘in the public interest’.[120]

7.112   In 1994, the Senate Select Committee on Public Interest Whistleblowing recommended that the existing provisions of the Crimes Act be amended to allow the disclosure of information in the public interest to be a defence against prosecution.[121]

Public interest disclosure legislation

7.113   As discussed in Chapter 2, public interest disclosure, or ‘whistleblowing’, is ‘the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to people or organisations that might be able to effect action’.[122] Public interest disclosures by Commonwealth officers may involve the unauthorised disclosure of information obtained because of a person’s position as a Commonwealth officer, and therefore may attract administrative penalties or criminal sanctions under various secrecy provisions.

7.114   While there is currently limited protection at the Commonwealth level for people who make public interest disclosures, the Australian Government has indicated that it intends to develop public interest disclosure legislation in 2009.[123] As noted above, 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.

7.115   A person who made a disclosure under the framework established by the proposed legislation would be protected from adverse action in the workplace and from criminal liability (including under the general secrecy offence), civil liability and administrative penalties.[124] In DP 74, the ALRC expressed the view that comprehensive public interest disclosure legislation was preferable to including a public interest disclosure exception in secrecy provisions. This was on the basis that public interest disclosure legislation has the potential to protect whistleblowers from criminal, civil and administrative sanctions and not just from prosecution under a particular provision. In DP 74, the ALRC proposed that the general secrecy offence should include a note cross-referencing to the immunity provided by proposed Commonwealth public interest disclosure legislation.[125]

Submissions and consultations

7.116   There was general support expressed in submissions for the introduction of public interest disclosure legislation[126] although CLA stated that the proposed model in the Whistleblower Protection report was too narrow.[127] CLA expressed support for the ALRC’s proposal to include a cross reference in the general secrecy offence to the immunity provided by the proposed public interest disclosure legislation.[128]

7.117   A number of stakeholders suggested, however, that in the absence of robust public interest disclosure legislation there should be an exception in the general secrecy offence for disclosures in the public interest.[129] The Australia’s Right to Know coalition considered that the general secrecy offence and the subsequent disclosure offence should include an exception where the Commonwealth officer—and any third party recipient of the Commonwealth information disclosed—was acting honestly and reasonably to protect the public interest.[130]

7.118   Whistleblowers Australia, however, strongly endorsed the ALRC’s view that robust public interest disclosure legislation was preferable to including public interest disclosure exceptions in secrecy provisions. This was on the basis that public interest disclosure legislation has the potential to protect whistleblowers from criminal, civil and administrative sanctions.[131]

7.119   Ron Fraser noted that individuals who were not covered by the proposed public interest disclosure legislation, but wished to make a public interest disclosure, might be caught by the subsequent disclosure offence. He suggested that such individuals should be protected from prosecution under the subsequent disclosure offence in the same circumstances that Commonwealth officers were protected from prosecution under the general offence. He noted that the Whistleblower Protection report had recommended that the government consider extending the protection provided by the proposed public interest disclosure legislation to cover members of the public who make disclosures about the public sector.[132]

ALRC’s views

Public interest exception

7.120   The ALRC recommends, above, that a disclosure in accordance with an authorisation given by an agency head or minister that the disclosure would, on balance, be in the public interest should form an exception to the general secrecy offence.[133] This exception does not, however, provide scope for individual Commonwealth officers to disclose information on the basis of their own assessment that disclosure is in the public interest. This is appropriate, in the ALRC’s view, because the general secrecy offence only criminalises the disclosure of information that does, or is reasonably likely to, or is intended to have very serious consequences such as damaging national security, defence or international relations or putting someone’s life in danger. In these circumstances, the decision to disclose, despite the potentially serious consequences, should be taken at a senior level.

7.121   However, in the ALRC’s view, individual officers should have an avenue to express concerns about illegal, immoral or illegitimate practices under the control of their employers through public interest disclosure legislation.

Public interest disclosure legislation

7.122   At the time of writing, the Australian Government had not responded to the Whistleblower Protection report. While the Government has indicated that it intends to develop public interest disclosure legislation in 2009,[134] the ALRC has not had the opportunity to consider the final form of the legislation. 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.

7.123   In the ALRC’s view, a comprehensive and robust public interest disclosure regime is preferable to including an express exception in the general secrecy offence for disclosures made in the public interest. The whistleblower protections recommended by the Standing Committee include immunity from criminal liability and so will provide protection from prosecution under the general secrecy offence for disclosures made within the public interest disclosure framework. Again, because the general secrecy offence only criminalises the disclosure of information that is likely to have serious consequences, it is important that any such disclosure should take place within the framework and safeguards provided by the proposed public interest disclosure regime, rather than simply on the basis of an assessment made by an individual Commonwealth officer.

7.124   The ALRC is not recommending a legislative note in the general secrecy offence referring to the fact that public interest disclosure legislation may provide immunity from criminal liability for a breach of the secrecy offence. It is unnecessary from a legal perspective, and it would be inconsistent to include a note of this nature in the general offence and not to include a similar note in all other secrecy provisions. Instead, the interaction between secrecy laws and public interest disclosure legislation should be set out in information-handling policies and guidelines[135] and included in employee training and development initiatives.[136]

7.125   As explained further below, in developing the public interest disclosure legislation, it will be important to ensure consistency with the general secrecy offence. In particular, the public interest disclosure legislation should cover at least the same categories of persons as those covered by the general secrecy offence. There also needs to be adequate protection for individuals who make public interest disclosures to third parties, such as the media, and those who may be caught by the subsequent disclosure offences recommended by the ALRC.

Categories of persons covered

7.126   The ALRC recommends that the new general secrecy offence cover a range of ‘Commonwealth officers’.[137] Of these, it appears that only the Governor-General, ministers and parliamentary secretaries would not be covered by the proposed public interest disclosure legislation. While the Whistleblower Protection report did not expressly consider the issue, it may be that people so senior in the executive branch of government have alternative avenues to make public interest disclosures and do not require whistleblower protection. For example, members of parliament are protected from criminal and other liability for disclosures made under the protection of parliamentary privilege.[138] In general terms, however, the ALRC’s view is that to provide effective protection for whistleblowers, the public interest disclosure legislation should cover the same categories of people subject to the general secrecy offence. The statutory language used in the public interest disclosure legislation and the new general secrecy offence ultimately should be consistent in this regard.

Public interest disclosures to third parties

7.127   As discussed in Chapter 2, the public interest disclosure regime proposed by the Standing Committee would protect a person making a disclosure outside the formal internal and external channels—for example, to the media—in certain very limited circumstances. The Committee recommended that disclosure to a third party external to the public service would only be protected where the matter had already 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.[139]

7.128   In developing public interest disclosure legislation, it will be important to ensure that a journalist or other person who further discloses information received by way of a protected public interest disclosure will not commit an offence—for example, under offences which cover the disclosure of information by ‘any person’[140] or under the subsequent disclosure offences recommended in this Report.[141] While this issue does not appear to have been directly considered by the Standing Committee, it seems logical that a third party who subsequently discloses information received by way of a protected public interest disclosure should also be immune from liability.

Subsequent disclosure of information received in confidence

7.129   One of the subsequent disclosure offences recommended by the ALRC would impose criminal sanctions on a third party for the unauthorised disclosure of information received from a Commonwealth officer on terms requiring it to be held in confidence.[142] This offence is intended to cover, for example, state and territory officers or private sector individuals who share sensitive Commonwealth information. It is possible that such third parties may be in a position to make public interest disclosures and in the ALRC’s view this should be encouraged and the disclosures protected.

7.130   Public interest disclosure legislation could protect these individuals by way of a deeming provision. The Whistleblower Protection report recommended that public interest disclosure legislation provide that a decision maker within the scheme be able to deem a person to be a public official for the purposes of the legislation, where that person has an ‘insider’s knowledge’ of matters that might form the basis of a public interest disclosure.[143] The Standing Committee used the example of a former volunteer at a not-for-profit body contracted to a local government authority to implement a federally funded program. The Standing Committee expressed the view that ‘there should be no automatic protection afforded to people in such instances but a decision maker should be able to grant protection in appropriate circumstances’.[144] One consideration in making a decision to deem a person to be a ‘public official’ for the purposes of public interest disclosure legislation might be whether he or she is subject to a secrecy offence.

Recommendation 6–3               In developing public interest disclosure legislation the Australian Government should ensure that the legislation protects:

(a)     individuals subject to the general secrecy offence;

(b)     individuals who subsequently disclose Commonwealth information received by way of a protected public interest disclosure; and

(c)     individuals subject to the subsequent disclosure offence for the unauthorised disclosure of information received from a Commonwealth officer on terms requiring it to be held in confidence.

[1]           Recommendations 5–1, 6–6, 6–7.

[11]         Part 2.3 of the Criminal Code (Cth) is headed ‘Circumstances in which there is no criminal responsibility’.

[12]          Attorney-General’s Department, Submission SR 36, 6 March 2009.

[13]          Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 27.

[14]          Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008).

[116]       Crimes Act 1914 (Cth) s 79(2)(a)(ii), (3)(b).

[117]       This exception is discussed further in Ch 3.

[118]       Law Enforcement Integrity Commissioner Act 2006 (Cth) s 209.

[119]       Australian Security Intelligence Organisation Act 1979 (Cth) s 18(3)(b).

[120]       Food Standards Australia New Zealand Act 1991 (Cth) s 114(4). See also Medical Indemnity Act 2002 (Cth) s 77(3); Health Insurance Act 1973 (Cth) s 130(3); National Health Act 1953 (Cth) s 135A(3).

[121]       Australian Parliament—Senate Select Committee on Public Interest Whistleblowing, In the Public Interest (1994), [9.53].

[122]       A Brown, Public Interest Disclosure Legislation in Australia (2006), xxi.

[123]       J Faulkner (Cabinet Secretary and Special Minister of State), Launch of the Public Service Ethics Advisory Service: 6 May 2009 (2009) <www.smos.gov.au/speeches> at 6 December 2009.

[124]       Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 14.

[125]         Recommendation 9–2.

[126]         Whistleblowers Australia, Submission SR 74, 17 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009; Commonwealth Ombudsman, Submission SR 20, 19 February 2009; Australian Press Council, Submission SR 16, 18 February 2009; Liberty Victoria, Submission SR 19, 18 February 2009.

[127]         Civil Liberties Australia, Submission SR 47, 27 July 2009.

[128]         Ibid.

[129]         R Fraser, Submission SR 78, 21 August 2009; Community and Public Sector Union, Submission SR 57, 7 August 2009; L McNamara, Submission SR 51, 6 August 2009; AJ Brown, Submission SR 44, 18 May 2009; Australian Press Council, Submission SR 16, 18 February 2009.

[130]         Australia’s Right to Know, Submission SR 72, 17 August 2009.

[131]         Whistleblowers Australia, Submission SR 74, 17 August 2009.

[132]       R Fraser, Submission SR 78, 21 August 2009.

[133]       Recommendation 7–1(b).

[134]       J Faulkner (Cabinet Secretary and Special Minister of State), Launch of the Public Service Ethics Advisory Service: 6 May 2009 (2009) <www.smos.gov.au/speeches> at 6 December 2009.

[135]         See discussion in Ch 14.

[136]         See discussion in Ch 15.

[137]         Recommendation 6–1.

[138]         Parliamentary privilege is discussed in Ch 16.

[139]       Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 21.

[140]         For example, Crimes Act 1914 (Cth) s 79.

[141]         Recommendations 6–6, 6–7.

[142]         Recommendation 6–7.

[143]       Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 5.

[144]       Ibid, [3.85].