Rough public service justice.

Almost no media reporting of this decision just prior to Christmas by the NSW Court of Criminal Appeal dismissing an appeal by Allan Kessing against his conviction for breaching Section 70 of the Crimes Act in disclosing government information without authorisation.

The details of the case are well known- Kessing, who pleaded not guilty, was charged, convicted and given a nine month suspended sentence in 2007 after The Australian reported on serious security failings at Sydney Airport, drawing on internal reports prepared in Customs that had not been acted upon for years. After the publicity the Government moved promptly to action stations and spent a couple of hundred million dollars to fix problems some insiders knew about, but of which millions of travellers had previously been blissfully unaware.

The unanimous decision handed down by Justice Bell (to be installed on the High Court of Australia next week) saw the Court of Criminal Appeal reject arguments that the verdict in all the circumstances was unreasonable or could not be supported by the evidence. Nine errors by the trial judge were cited [at 11]. The Court agreed that only one error had occurred when the trial judge wrongly answered two questions from the jury [58-64], but decided no substantial miscarriage of justice actually occurred.

I understand Kessing and his advisers were dismayed at what they see as clear failures to prove the case against him, and errors in the Court of Appeal decision, and Kessing has lodged an application for special leave to appeal to the High Court.

Courts examine evidence, reach conclusions and apply the law. A major problem highlighted by the Kessing case however, is the law itself: the general prohibition in Section 70 against unauthorised disclosure of official information by current or former Commonwealth officers. There are no available defences regardless of the triviality of the information disclosed or, at the other end of the scale, the public interest in disclosure. A version of this law has been on the statute book since the enlightened days of 1914, based on a Queensland act of... 1899! The substance of the current formulation is basically unchanged from that enacted in 1960.

Australia's secrecy laws in general are a problem, so much so that the Australian Law Reform Commission has been asked to undertake a review. Nine days before the Court of Criminal Appeal handed down its decision in Kessing, the Commission released an Issues Paper on the subject. ALRC President, Professor David Weisbrot stated

“The federal statute book has become riddled with secrecy provisions, which make unauthorised disclosure of government information a criminal offence. So far the ALRC has identified over 370 distinct secrecy provisions scattered across 166 pieces of legislation—many more than we expected to find.... A threshold question is whether we should ever charge someone with a crime for disclosing information that a citizen has the right to obtain under Freedom of Information laws? And how do we reconcile the increasing need of public officials to share information with each other and with the private sector to tackle the big issues facing us, such as terrorism, climate change and dealing with the global financial crisis? We seem to be caught in a time warp, between an old culture of secrecy in government and more modern ideas about the fundamental importance to democracy of ensuring openness and accountability.”

Chapter 2 of the Issues Paper includes a discussion of Section 70. The Paper identifies problems in the ambiguity and broad nature of the provision, and lists the numerous bodies and government inquiries, going back years, that have recommended it be reformed, all to no avail so far: a Senate Committee in 1979 when Freedom of Information legislation was under consideration; the Human Rights Commission in 1983 which thought the section could be inconsistent with the International Covenant on Civil and Political Rights; an inquiry in 1991 headed by former Chief Justice of the High Court Sir Harry Gibbs; and in 1994 another Senate Committee that recommended the Act be amended to allow disclosure in the public interest as a defence.

So maybe movement at the station sometime down the track to ensure a proper balance in the current era between the need for secrecy and the public interest in disclosure. None of this will be of assistance to Allan Kessing.

However there are still some highly influential players who are not convinced we- and that means all of us- have a problem. In appearing before the House Committee inquiry into Whistleblowers in November , the relatively new Secretary of the Attorney General's Department Roger Wilkins, fresh from years of experience in the upper echelons of the NSW Premier's Department, said he was mightily impressed by the sensitivity of the information that crossed his new desk, compared to ( my words) the dross back at the state government level. So much so that he expressed this personal opinion (page three of the transcript Thursday 27 November 2008 (PDF 192KB)

"Mr. Wilkins - This is my personal view. I am not sure of the government's view on this. My personal view would be that you should not interfere with section 70 of the Crimes Act. That should remain intact".

If that view remains unchanged Kessing won't be the last to suffer as a result of a law that pays no regard to the public right to know even where government's failure to disclose could seriously endanger the life and safety of the rest of us. Maybe the Russians are onto something in putting the boot on the other foot- criminal penalties for those who fail to disclose in these circumstances.