US and Australian law regarding publication of government secrets

Attorney General McClelland on 17 December announced the Australian Federal Police had not identified any criminal offences regarding WikiLeaks "where Australia has jurisdiction" and added:

“The Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.”

We are likely to see that concern flavour discussion and debate next year on a range of issues: open government in all its dimensions, the Government's response to the ALRC report on secrecy provisions in Commonwealth laws, shield laws for journalists, whistleblower protection, and perhaps even government copyright.

The leaks of course were of US government documents although the content of some reveal information passed on to US embassy officers in Canberra by public servants in government agencies including intelligence agencies. Whether WikiLeaks/Assange or anyone else has committed an offence under US law by publishing classified materials remains to be seen.  Secrecy News has facilitated access to this Congressional Research Service memo on the Wikileaks controversy, “Criminal Prohibitions on the Publication of Classified Defense Information” dated December 6. The summary states:

This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.

There is a good discussion about the US legal issues in this NPR On the Media interview with University of Chicago law professor Geoffrey Stone including Senator Lieberman's move to introduce the SHIELD Act- Securing Human Intelligence and Enforcing Lawful Dissemination.

If the leak had been here and of Australian documents covering ground similar to some of that published, s 79 of the Crimes Act and s 91.1 of the Criminal Code (Cth) (espionage) might apply to publication if it occurred within Australian jurisdiction. Philip Dorling who is doing the hard slog for Fairfax papers on the released cables relevant to Australia is familiar with the law. Two years ago he had the police knocking on the door  after he wrote an article in the Canberra Times about the Defence Intelligence Organisation.

Section 79 includes offences for communicating, retaining or receiving information with the intention of prejudicing the security or defence of the Commonwealth, information made or obtained in contravention of pt VII of the Crimes Act (unlawful sounding) or s 91.1 of the Criminal Code (espionage) or relating to a prohibited place or anything in a prohibited place that the person knows, or ought to know, should not be communicated.

Section 91.1 of the Criminal Code makes it an offence for a person to communicate information concerning the security or defence of the Commonwealth or another country to a foreign country or organisation with the intention of prejudicing the security or defence of the Commonwealth, or of giving an advantage to another country’s security or defence. It is also an offence to make, obtain or copy such information with the intention of delivering it to a foreign country or organisation in order to prejudice the security or defence of the Commonwealth or give an advantage to another country’s security or defence. An article, record or document which is made, obtained, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Part of the Criminal Code is forfeited to the Commonwealth.It is a defence if the information is lawfully publicly available.

Quite apart from these provisions, if ALRC proposals before the Government concerning review of secrecy laws were adopted welcome changes to s 70 of the Crimes Act would be accompanied by offence provisions relating to publication of information disclosed in contravention of a revised general offence provision. Here is what I said earlier in the year about the recommendation that section 70 of the Crimes Act be repealed and replaced by a general offence provision for unauthorised release of information that 

has caused, or is likely or intended to cause, harm to identified public interests: damage the security, defence or international relations of the Commonwealth; prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;endanger the life or physical safety of any person; or prejudice the protection of public safety. 

Importantly the ALRC recommends [6-4] the offence should require intention on the part of an officer to cause the harm, or reckless indifference whether this will result.The broad definition of Commonwealth officer [6-1] whose conduct would be regulated would extend to the Governor General, ministers and parliamentary secretaries- all reasonable enough, but interesting to see how this goes.

Potentially controversial recommendations [6-6, 6-7] are that any subsequent disclosure of information of this kind, for example by a journalist, should be an offence. It's easy to see the free speech arguments that are likely to emerge but it shouldn't get lost in transmission that there are three elements to this offence: (a) the information has been disclosed by A to B in breach of the general secrecy offence; B knows, or is reckless as to whether, the information has been disclosed in breach of the general secrecy offence; and B knows, intends or is reckless as to whether the subsequent disclosure will harm—or knows or is reckless as to whether the subsequent disclosure is reasonably likely to harm—one of the specified  public interests.

How all this works out we're yet to see. Lots of issues and questions for 2011.