Secrecy Provisions: Policy and Practice

National Information Law Conference 2011, National Museum of Australia

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Introduction

James Madison, sometimes called the Father of the United States Constitution, once said that:

… I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations … ^[1]
This is relevant to secrecy provisions. Secrecy provisions deprive citizens of the information created, collected or received by the Commonwealth on their behalf. They also curtail the freedom of expression of those who have that information. Secrecy provisions are those legislative provisions that impose confidentiality obligations on individuals or entities.^[2]

As it happens, no-one having Commonwealth information can use that information as she pleases. Commonwealth information – or 'official' or 'government information' as it is also called – is subject to a matrix of judge-made law and statute. This legal matrix is designed to foster two main objects: first, the protection of the confidentiality of information; and, second, the provision of access to information by the public and, in some instances, particular individuals. Plainly enough, these objects oppose one another; and the primacy of the one over the other has changed over time.

The history of this change is, at least in part, about changing relationships between citizens and government; re-evaluation of Westminster-style responsible government; a greater appreciation of participatory democracy; and the adoption of the language of human rights in the civil and political spheres. To make good these propositions, I propose to discuss the history of secrecy provisions up until the Freedom of Information Act 1982 (Cth); to mention three significant secrecy provisions; and to reflect on the developments that may lead to further change.

The history for secrecy provisions in Australia

In Australia, up until around the 1970s, Commonwealth information was largely protected against public disclosure.

Writing about secrecy in government in 1967, the late Professor Enid Campbell wrote that Australia was at that time:

… a country in which many of the day to day workings of government are shielded from public view. The right of public servants to perform their functions anonymously and in camera and the right of executive departments to treat their records as confidential are so firmly rooted in our political tradition that it may be hard to imagine how any form of government could function properly without them.^[3]

The idea that a secrecy blanket generally covers Commonwealth information belongs to a legal landscape that has since disappeared. Australian public lawyers are familiar with the profound changes in Australian administrative law in the 1970s and 1980s. These changes were the work of the courts and the legislature.

The role of the courts is notable. By 1913 it was accepted that a court might, in appropriate circumstances, restrain the publication of confidential Government information improperly obtained, or of information imparted in confidence which ought not to be divulged.^[4] In 1976, the House of Lords in England and, in 1980, the High Court in Australia made it clear that the Executive would not be granted relief of this kind unless it could show that some harm would flow from the disclosure over and above the dissemination of the information to the community at large. I refer, of course, to the Crossman Diaries Case^[5] in England, in which the Court refused to restrain the publication of the diaries of a former Cabinet Minister, Richard Crossman, and to Commonwealth v Fairfax & Sons Ltd^[6] in Australia. As the Spycatcher Case in the later 1980s showed, it was accepted by then that no relief would be available unless some distinct harm to the public interest were shown that weighed against freedom of communication and public debate.^[7]

In the mid 70s and early 80s, the Parliament introduced the Commonwealth's then new administrative law, which initially consisted of the Ombudsman Act 1975 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). In the context of information secrecy, however, the most significant of the new pieces of legislation was the Freedom of Information Act 1982 (Cth). In Australia, the FOI Act, as it is familiarly known, had its origins in a 1972 policy commitment by the Whitlam Labor government to enact legislation along the lines of the US Freedom of Information Act, enacted by the US Congress in 1966.^[8]

When enacted, the Australian FOI Act was the first freedom of information legislation to be introduced in a country with a Westminster style of responsible government.^[9]

Until the FOI Act, the Westminster system was generally thought to depend on a regime of secrecy governing public servants, especially as regards Cabinet deliberations, information conveyed by public servants to and from ministers and even the workings of the public service. This was typically seen as a necessary concomitant of the secrecy that underpinned the constitutional convention of Cabinet collective responsibility. Secrecy and democracy were reconciled by the notion of ministerial responsibility.^[10] Ministers were responsible, collectively and individually, to Parliament and to the electorate, for what a minister's department, or the government, did or failed to do. The confidential provision of advice by public servants to their ministers was said to be necessary to preserve the essential political neutrality of the public service.

In the pre-FOI era, Professor Campbell's view was that governmental secrecy was a habit of mind "originating in the hands of the monarch". Professor Campbell wrote:^[11]

The tradition of government privacy grew from the subordination of royal officials to the person of the monarch, the urge of monarchs to protect themselves against the incursions of rival power seekers, and the common medieval tendency of expressing public law principles in proprietary terms. Documents prepared by Crown servants became Crown property and, as such, matters which the Crown could disclose or withhold at will.

Following the examples of colonial legislatures,^[12] the Australian Parliament enacted its first secrecy provisions as part of the Post and Telegraph Act 1901 (Cth).^[13] In his article in the Federal Law Review in 1990, John McGinness commented:^[14]

Early secrecy provisions were mainly concerned with the protection of defence and national security. However, with the expansion of the Commonwealth's role after the mid-1940s in areas such as taxation, health, education, welfare, scientific research, industry assistance and regulation, secrecy provisions increased in number as a reflection of the increase in personal and commercially sensitive information collected by the government.

Sections 70 and 79 of the Crimes Act 1914 (Cth) entered Australian law in that year. Section 70 of the Crimes Act originated with s 86 of the Queensland Criminal Code of 1889.^[15] Section 79(3) derived from s 2 of the UK's Official Secrets Act 1911.^[16] Both provisions prohibit the disclosure of Commonwealth information acquired by a person in the course of his or her duties. They remain two of the most significant secrecy provisions in Australian law.

Unsurprisingly, secrecy provisions were considered especially important in wartime and in the anti-communist period of the Cold War.^[17] Recently, in his article "WikiLeaks [SEC = UNCLASSIFIED]", one of Australia's most experienced diplomats, John McCarthy, explained that, after the Second World War, the maintenance of secrecy remained of paramount concern, especially for international affairs and defence. John McCarthy wrote:^[18]

The Second World War created national security systems which were very largely the preserve of the Executive Branches of Government. … Most systems espoused a strict ethic on the protection of information – reflected in the rule that information should be accessed on a need to know basis. In other words, only those cleared and actually working in on a sensitive issue should see the information pertinent to it.

For the first generation or so after WW2, the imperatives of the Cold War meant that the then prevailing mindset in governments about secrecy was not challenged in a serious way.

The introduction into the Australian legal system of the FOI Act contributed a great deal, first, to diminishing the entrenched tradition of government secrecy and, secondly, to establishing that 'open government' (as the post FOI era would have it) is fundamental to a participatory democracy. By giving the community greater access to Commonwealth information, the FOI Act states that Parliament intends to promote Australia's representative democracy.^[19] Of course, the FOI Act has always recognized the inevitable tension between ensuring access to information and the continuing need for confidentiality; and has sought to provide exemption from disclosure where there remains a need for continuing confidentiality.

The old and the new ways of thinking about disclosure are evident in the history of s 38, which originally provided that a document was exempt from disclosure if there was in force "an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind". The current version of s 38 is more straightforward.

Even so, there still remains at least one area of difficulty in the application of this provision. What happens when an officer discloses information under the FOI Act if such disclosure is potentially in breach of a secrecy provision? Secrecy provisions that permit disclosure in the course of duty have been understood as permitting disclosure under the FOI Act. Difficulties arise, however, where there is no express exception, or the exception to non-disclosure is narrowly defined, as was the case in Kwok v Minister for Immigration and Multicultural Affairs.^[20] In that case, the court held that there could be no permissible disclosure under the FOI Act because the secrecy provision stipulated that the only permissible disclosure was to a minister, or an authorised migration officer, for the purpose of allowing them to exercise certain statutory powers.

Undoubtedly, the legal matrix that governs the secrecy of Commonwealth information has altered over the past 30 years. As the history of s 38 of the FOI Act shows, however, many secrecy provisions remain.

Three significant provisions

I mention three significant provisions, with a view to discussing the nature of anticipated change.^[21]

The first of these three provisions is regulation 2.1(3) of the Public Service Regulations 1999 (Cth).^[22] This provides that an APS employee "must not disclose information which the APS employee obtains or generates in connection with his or her APS employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs". ^[23] The ALRC has proposed that the regulated conduct should be further narrowed to apply only to disclosures that are "reasonably likely" to result in such prejudice.

The other two provisions are ss 70 and 79 of the Crimes Act 1914 (Cth), to which I referred earlier. Section 79 creates a number of offences relating to the use or disclosure of official secrets. Section 79(2) deals with obtaining official secrets "with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queen's dominions". Sections 79(3)^[24], (4) and (6) create offences in relation to official secrets, without the need to prove intent to prejudice safety or defence.^[25] For present purposes, it probably suffices to say that s 79 is a complicated provision.^[26] Its complicated structure has been severely criticized.^[27] The language of the provision is outmoded.^[28]

The effect of s 70 is to criminalize breaches of secrecy obligations by Commonwealth officers. In Report 112, the ALRC states that, since 2000, most prosecutions for breach of secrecy provisions have been brought under this provision.^[29] Accordingly, it is worth giving the provision some further attention.

Section 70(1) provides that:

A person who, being a Commonwealth officer,^[30] publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it,^[31] any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

The maximum penalty for contravention of s 70 is two years imprisonment.^[32]

Prosecutions under s 70 are instructive because they highlight the difficulties with the provision. R. v Goreng Goreng^[34] in 2008 is illustrative.

The defendant in Goreng Goreng was a branch manager at the Office of Indigenous Policy Coordination. The defendant disclosed information relating to the first draft of the Declaration on the Rights of Indigenous Peoples to her daughter, by email, to assist with a university assignment. She also provided information relating to the Government's Indigenous policy to a member of an indigenous community in the Northern Territory, including plans to include sexual health checks for children. The defendant was ultimately given a fine of $2000, and a three-year good behaviour bond.^[35]

As Goreng Goreng illustrates, the first point to make about s 70 is that s 70 does not itself create a duty not to disclose. This duty must be found elsewhere in the law, typically in a specific secrecy provision.^[36] In Goreng Goreng, the duty of confidence was said to arise from reg. 2.1(3) of the Public Service Regulations.

The defendant argued, however, that reg. 2.1(3) could not be relied on in the prosecution because, first, the regulation breached the constitutional guarantee of freedom of political communication; second, the regulation was uncertain in its operation; and, third, it was ultra vires as an impermissible exercise of regulation-making power.
The defendant's constitutional argument relied in part on the decision of Justice Finn in Bennett v President, Human Rights and Equal Opportunity Commission^[37]. Justice Finn held that an earlier version of the regulation, reg. 7(13) of the Public Service Regulations 1999 (Cth), was invalid as infringing the implied constitutional freedom of political communication. In applying Lange v Australian Broadcasting Corporation,^[38] Justice Finn said that reg. 7(13) effectively burdened freedom of political communication because, although aimed at a legitimate end – the effective working of government – it was not reasonably appropriate and adapted to furthering that end without unnecessarily or unreasonably impairing the constitutional freedom. The control imposed by the regulation impeded unreasonably the possible flow of information to the community, being information, which, without prejudicing the interests of the Commonwealth, could only enlarge the public's knowledge of the operation and policies of the executive government.^[39]

In contrast, in Goreng Goreng, Justice Refshauge had no difficulty in rejecting the defendant's submissions that the new regulation 2.1(3) was unconstitutional or ultra vires, although he said that he had "considerable hesitation" in concluding that the regulation was not invalid as uncertain. Justice Refshauge noted that reg. 2.1(3) was a more limited prohibition than that considered by Justice Finn in Bennett and focussed on "on a legitimate interest that government has to protect, which failure to comply with the prohibition may prejudice".^[40]

Other doubts about s 70 remain unanswered. I refer here to four. In particular, what kind of non-disclosure duty is relevant to s 70? Is a non-disclosure duty in common law or equity as relevant as non-disclosure under a secrecy provision?^[41] Does the obligation under s 13(10) of the Public Service Act 1999 (Cth) not to publish certain information give rise to a duty the breach of which can attract s 70? Justice Refshauge in Goreng Goreng found it unnecessary to decide whether these additional sources of obligation might be relied on by the Crown in a prosecution under s 70 of the Crimes Act. Whether or not they can remains an open question.

Second, the requirement that disclosure under s 70 be of a "fact or document", instead of information, introduces the possibility of anomalies. As Paul Finn noted:

"Where a document is not disclosed all that is protected is a 'fact'; where a document is disclosed its contents need not be ones of fact. Unless 'fact' is given a meaning which covers disclosure of advice, opinion, intention etc, the scope of the offence is manipulated simply by the particular means (oral or documentary) used in the disclosure."^[42]

Third, the activity to which s 70 applies is broadly described—the publication or communication of any fact or document. In Kessing^[43] Bell JA, with whom the other members of the Court agreed,^[44] said that:

"Communication of the contents of a document requires no more than that the contents be conveyed or transmitted to another. This may be done directly by handing the document to another or by reading the document to another. It may be done indirectly by leaving the document on a park bench for another to collect or in any of a variety of ways."

Is, then, the only real limitation on the breadth of the regulated activities the fact that they must be intentional?

Fourth, the application of s 70 depends on the scope of the duty not to disclose;^[45] it does not depend on any harm to the public interest, whether anticipated or actual.^[46] A number of experts have criticized the failure of s 70 to distinguish between a disclosure that likely harms the public interest and that which cannot. Are they right to do so?

Over a decade ago now, the Gibbs Committee, under the Chairmanship of Sir Harry Gibbs, recommended the repeal of s 70 and s 79(3) and their replacement by more streamlined provisions.^[47] In Report 112, the ALRC has also recommended the repeal of s 70 and the introduction of a new, targeted secrecy offence.^[48] Is this recommendation in keeping with likely shifts in community attitudes? I now turn to the developments that may lead to change.

Developments that may lead to change

In order to appreciate the role that these secrecy provisions will play in the foreseeable future, it is, so it seems to me, instructive to refer once again to history, this time to recent history. There have, so it seems to me, been three major recent developments.

First, as John McCarthy notes in his discussion of the effect of WikiLeaks on diplomatic communications, there would appear to have been a major change in community attitudes to secrecy in government.^[49] In any event, there is a body of opinion to the effect that Australians should have information about the conduct of government and the merits of governmental policies in order to exercise proper judgment about who should govern and the rules that should apply.^[50] This body of opinion finds expression most recently in the movement for more effective whistleblower legislation, which is to be introduced into Parliament in its Autumn sittings this year.^[51] Furthermore, the decision of the High Court in Lange affirms constitutionally-entrenched protection for freedom of political communication. "Open government", of some kind or another, is, it seems, here to stay for the foreseeable future. If openness in government is desirable, however, it cannot be entirely unlimited. Secrecy too is essential to governing in some circumstances. The difficult question – addressed by the ALRC in its recent report on secrecy provisions – is just how to strike the balance.

The second development is the widespread use of the Internet. The Internet has brought an information revolution so far as the storage and dissemination of information is concerned.^[52] Much Commonwealth information is readily available through search engines that locate it in minutes. This makes public access to government information practicable, cheap, and efficient. In an online world, once Commonwealth information has been disseminated via the web, it becomes virtually irretrievable.

Finally, there is globalisation. This has had a number of effects. First, the internationalisation of attitudes to knowledge exchange may have an effect, both direct and indirect, on attitudes to the disclosure of government information. John McCarthy referred to this development in the context of information sharing between nations. ^[53] Second, over time, major international agreements tend to affect domestic opinions, whether legislative, judicial or otherwise, about the proper relationship of citizens and government in a democracy, and the role that access to government information has in defining this relationship. In this connection, I note that article 19 of the International Covenant on Civil and Political Rights apparently requires that secrecy provisions be of a specific kind, made in pursuit of a legitimate end and proportionate to that end, in order to be a justifiable restriction on the right to freedom of expression that the article recognizes.^[54] Whilst the effect of the ICCPR as a standard setting instrument within Australia is a topic for another day, it seems clear enough that it has the potential to affect domestic attitudes to what is and is not permissible with respect to government secrecy. This kind of analysis may be expected to find greater purchase in Australia in future.

Third, global WikiLeaks may in the longer term threaten the existing secrecy regimes governing Commonwealth information. This threat is evident in the publicized disclosures of Australian international cables. It is also evident in what WikiLeaks proclaims itself to be. On its webpage WikiLeaks declares that it "has provided a new model of journalism". WikiLeaks continues:

"In the years leading up to the founding of WikiLeaks, we observed the world's publishing media becoming less independent and far less willing to ask the hard questions of government, corporations and other institutions. We believed this needed to change."

WikiLeaks and the ready availability of information via the Internet create challenges for secrecy in democratic societies. The effect of WikiLeaks on attitudes to government information and, in particular, secrecy provisions is presently a matter for conjecture. With regard to Australia's international affairs, McCarthy considered that the "initial tendency … will … be towards less rather than more openness" but that WikiLeaks might "prompt a surge of thinking and activity within those circles in Australia pushing for more freedom of information". Perhaps the trends will be the same in other areas of government.

One thing is clear: WikiLeaks has brought the issue of government secrecy into the limelight; and has galvanized opinions across the generations and sectors of society. With this is mind, the ALRC's recommended reforms would, if implemented, assist the Australian government to keep up with the likely drift of informed thinking, without endangering the effective working of government. This is because the

ALRC's recommendations recognize that secrecy provisions can have an important role to play in effective governance, but that their retention depends upon some principled justification compatible with the contemporary conception of participatory democracy.