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Friday, August 19, 2011

Kessing whistleblower pardon demands attention

Allan Kessing's letter in response to an invitation from the Attorney General's Department to provide further information in connection with an application for pardon for his conviction for breaching section 70 of the Commonwealth Crimes Act gets good coverage in The Australian today. On this campaign at least, I'm with Legal Affairs Editor Chris Merritt.

Issues raised in the letter-the failure by the AFP to disclose a key document in the brief of evidence that would have alerted the defence to the existence of witnesses that were not called to testify, and the somewhat related failure by the prosecution to call witnesses- bring into question whether the Model Litigant Rules and the NSW Bar Rules were followed. Among other points, Kessing also questions the decision by the DPP to prosecute him, but on public interest grounds not to prosecute Godwin Gretch, despite the fact that in his case there was a clear public interest in airport security failings, while in the Gretch case partisan political motives led to apparent instances of forgery, fraud and collusion.

While Home Affairs Minister O'Connor mulls this over, and injustice continues to hang heavily on Kessing, perhaps the minister, someone in his office, or in AG's will inquire about the Australian Law Reform Commission Report Secrecy Laws and Open Government in Australia that the government has had, with no comment or response forthcoming, since December 2009?  Professor Croucher, President of the commission gave a run down on the inquiry in this paper delivered to the 7th Annual Public Sector In-House Counsel Conference in Canberra recently. 

The ALRC’s key recommendation was that the draconian s 70 should be replaced, as Professor Croucher explained, by a provision that limits the sanctions of the criminal law—in publicly punishing, deterring, and denouncing offending behaviour—to "behaviour that harms, is reasonably likely to harm or intended to harm essential public interests. Therefore the new general secrecy offence is limited to unauthorised disclosures that are likely to:
  • 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."
Kessing has maintained his innocence of the offence as charged -that he released information without authorisation to two journalists at The Australian ( who were not called to testify)- and a change in the law will not change his situation one whit. However as Professor Croucher commented
Secrecy laws that impose ‘extreme’ obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.
The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences. Professor Croucher summarised the commission's recommendations as presenting
"a new and principled framework for secrecy provisions, striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential."
An indication of interest from the government in addressing the 19th century aspects of s 70, and the incoherence and anomalies in existing laws concerning secrecy and openness is well overdue.

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