But there is plenty of scope for further argument and public debate over the detail-not just the media concern over limited coverage for external disclosures -and turning the report's principles into legislation could be a slow grinding process for the inevitable inter-departmental committee. A working scheme reflecting the necessary culture change to "if in doubt report" and respect and protection for those that do could be years away from fruition.
The Report proposes no changes to secrecy laws (the Australian Law Reform Commission is to report later this year) although it would clear things up through a recommendation that a whistleblower who makes a public interest disclosure as defined, through the proposed internal and external processes, would be immune from criminal or civil action, thus removing the shadow of Section 70 of the Crimes Act.
Nothing in the report goes to Freedom of Information reforms either (Minister Faulkner's second stage paper is expected in March) but there are a couple of references that deserve comment.
Chapter 4 discusses what types of information should come within the scope of a public interest disclosure. I agree that it shouldn't extend to a public servant who simply disagrees with government policy or one who unilaterally decides to leak for personal reasons, to make mischief or the fun of it. But there are some interesting definitional issues about what might constitute "a serious matter relating to a breach of public trust."
A discussion about the values of accountability, integrity and the public interest that should underpin the proposed Act [2.48] includes a statement that"governments have a right to consider policy and administration in private."
This overstates things to some degree, as, apart from cabinet deliberations, there has been no absolute protection for 27 years for Federal government deliberative process documents. In theory at least these processes have been open to scrutiny under the Freedom of Information Act, unless disclosure would be contrary to the public interest.The fact that policy is under development or a decision has not been taken can be a factor that counts against disclosure, but would not automatically or categorically ensure the matter is considered "in private." Other public interests-for example in informed debate and discussion of matters being considered by government- need to be weighed.
In apparent support for at least part of this principle the Report states [4.30]:
"The Freedom of Information Act 1982 provides for a general right of access to information with limitations. One area where the release of information is generally held to be against the public interest is the discussion, within government, of options that were not settled and that recommend or outline courses of action that were not ultimately taken. The reason for this is the potential for confusion or to mislead the public. Disclosures of that type would be unlikely to make a valuable contribution to the public debate and have the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached."A footnote cites the High Court in 2006 in the McKinnon case as authority.
In the High Court decision the joint judgment of two of the three judges in the majority (two of the five who sat on the case) acknowledged [at 122] this was a "cogent ground" for the purposes of the issue of a ministerial certificate. No-one suggested- neither does the guidance issued by the Department of Prime Minister and Cabinet- that this will always be a sufficient consideration to automatically sway the balance in favour of non-disclosure. In two sentences they gave a tick to then Treasurer Peter Costello's claim (one of seven) to justify the issue of a certificate about why disclosure of information was contrary to the public interest, expressed by Costello as follows:
"The release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached. Decision-making processes are multi-layered and the documents reflect partially considered matters and tentative conclusions."It's a fair way short of High Court authority for the proposition that release of information is generally held to be against the public interest where it reveals "discussion, within government, of options that were not settled and that recommend or outline courses of action that were not ultimately taken. The reason for this is the potential for confusion or to mislead the public."
In Chapter 8 the Report recommends protection for disclosure to the media only where it relates to serious and immediate danger to health or public safety, and only after a reasonable period has elapsed since an internal report and to the Ombudsman or one of the alternative authorised recipients (extends to members of parliament) and no satisfactory action has been taken.
We will hear plenty of argument about this along these lines, particularly as Dr AJ Brown clearly has reservations about this aspect of the Report.
Some of the reasoning for ruling out protection for other disclosures to the media seems a bit thin. For example [8.76] that "disclosures to the media concerning unsettled policy issues, national security, intelligence and defence could interfere with the proper processes of government." Disclosure of unsettled policy issues seem to be placed in august company.They could also in some instances clearly be in the public interest.
As Richard Ackland comments in today's Sydney Morning Herald there is a lot for the media and others to ponder including what the Report tells us about leaks:
"From mid-2005 to mid-2008 some 45 cases of leaking were referred to the federal coppers. Of those, four were sent to the Director of Public Prosecutions. Under the existing and inadequate procedures to protect "public interest disclosures", 21 bureaucrats were investigated in 2006-07 following a whistleblow. We don't know what happened to those complaints, if anything, because the outcomes are secret. No politicians were referred anywhere for leaking, not even for leaking classified, sensitive security information."According to Chris Merritt in The Australian, Allan Kessing intends to keep going with his High Court challenge to Section 70 and his conviction, and if unsuccessful may seek a pardon.