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Wednesday, September 21, 2011

Draconian criminal penalties for unauthorised disclosures of all stripes

A decision last week by the Western Australian Court of Appeal in a case involving former premier Brian Burke is a reminder that the law in some states is just as draconian as s 70 of the Commonwealth Crimes Act in creating a criminal catch all offence for unauthorised disclosure of information by a government employee. Putting to one side what is also alleged to be corrupt conduct in the case in question, the decision contains a message that public servants and ministerial officers in WA should be ultra cautious about what they say about work related matters to anyone outside the loop. The decision suggests release of information about the business of a Western Australian government agency contained in an "official paper" or document to an unauthorised person by a person not lawfully authorised to disclose the information could see the discloser run the risk of up to three years in jail.

The WA law and similar laws in some other states tend to fly under the radar compared to s 70 which has seen the much publicised conviction of Allan Kessing and others. That  provision attracted attention in the Australian Law Reform Commission December 2009 Report on Australia's secrecy laws- along with 500 other secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences. And that was 18 years after a committee chaired by former High Court chief justice Sir Harry Gibbs concluded
"It is undesirable that the sanctions and machinery of the criminal law should be applied in relation to the unauthorised disclosure of all forms of official information and this should be avoided if possible." [ALRC Report 1.10]
One of the principles underpinning the ALRC recommendations is
criminal sanctions should only be imposed where they are warranted—when the disclosure of government information is likely to cause harm to essential public interests—and where this is not the case, the unauthorised disclosure of information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies.
In line with this, the commission recommended repeal of s 70 and replacement with a general provision that would apply a criminal penalty only where disclosure caused harm to an identifiable public interest. The government, 21 months later is yet to respond to this and other recommendations.

 Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory all have laws that contain broadly framed offences for the unauthorised disclosure of information by public officials and impose criminal sanctions similar to s 70. ( Cited in the ALRC report: Criminal Code (Qld) s 85; Criminal Code (WA) s 81; Criminal Code (Tas) s 110; Crimes Act 1900 (ACT) s 153; Criminal Code Act 1983 (NT) s 76).

These laws  have their origins in 19th century United Kingdom law. They should have no place in their current form in Australia in the 21st.

The relevant provision in Western Australia, s 81 of the Criminal Code, was originally enacted in 1902, and repealed and replaced in the current form in 2004. The only changes were to extend the law to 'government contractors' and to restate the provision in modern drafting style and language [see decision below at 146]. In effect the law as conceived in 1902 still stands. The provision states that unauthorised disclosure occurs where
(a) the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or (b) the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.
(2) A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years. Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.
(Erring Commonwealth public servants get it easy by comparison- the generally equivalent S 70 provides for only two years in the slammer.)

The unanimous WA Court of Appeal decision set aside acquittals and ordered retrial of a former ministerial adviser, the former premier Brian Burke and former minister Julian Grill on charges arising from disclosures without authorisation in 2006  to Burke and Grill, then lobbyists, by a ministerial officer. (There are corrupt conduct charges as well.)

The s 81 charges relate to two disclosures to Burke and Grills by the chief of staff of the then Minister for Fisheries. The first was a copy of a letter from Mr Ford, the then minister, to Senator  Abetz, the then Commonwealth Minister for Fisheries, Forestry and Conservation concerning the management of a southern and a northern fishery for which Western Australia and the Commonwealth shared responsibility. Mr Ford gave evidence at the trial that he regarded a letter written by him to another Minister as a confidential communication which only he might release publicly. However, he said that the letter did not contain anything of substance that was not already publicly released information [45].

The second was a draft version of the Pearl Oyster Hatchery Policy: Phase III that included some changes to a version previously publicly released. The departmental expert gave evidence at the trial that the changes were 'operational in nature,' did not concern the underlying principles of the policy, but dealt with the practicalities of their implementation [59]. The trial judge described the changes as minor amendments of an 'operational' nature and editorial changes.[231] but Justice Buss in the Court of Appeal found the trial judge in error in reaching this conclusion [240-264].

Burke told AAP after the Court of Appeal decision that "The charge itself is just not substantial." Substantial or no, harm or no, it doesn't matter in a prosecution under s 81. Justice Buss with whom Martin CJ and Mazza J agreed, distinguished a Tasmanian finding that the disclosure the subject of a charge had to be serious enough in nature to attract the criminal law, stating in respect of WA law:
193 In my opinion, if a duty of the kind described in the definition of 'unauthorised disclosure' in s 81(1) exists, and a person who is a public servant or government contractor breaches this duty, the seriousness of the breach has no bearing on whether an offence against s 81(2) is established (or, indeed, whether, at the close of the State's case, the evidence is capable of establishing the offence).
There won't and shouldn't be public sympathy fpr those involved in this case, given that the former chief of staff who made the disclosures was in touch with Mr Burke despite a specific direction from the then minister to have no contact with him, and in light of related charges against them under s 83  of the Code concerning corrupt conduct for advantage to a person. But the Court of Appeal decision has broad implications. It stands as authority for the proposition that release of information about the business of a Western Australian government agency contained in an "official paper" or document to an unauthorised person by a public servant or person employed on contract who was not lawfully authorised to disclose the information could get the person concerned up to three years in jail [214-215.]

The ALRC’s key recommendation for Commonwealth reform of secrecy laws is that the sanctions of the criminal law—in publicly punishing, deterring, and denouncing offending behaviour—should be reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests. In the proposed new general secrecy offence, criminal penalties would be 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."
Policy makers in Canberra have been mulling  this over for 21 months. Their counterparts in Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory should at least start to turn their minds to the subject. These broad general laws with criminal penalties have what Moira Paterson has described as a "chilling effect" on disclosure of information by government officials.

WA does have whistleblower/public interest disclosure protection legislation not relevant in this context.


  1. Anonymous9:19 am

    The case against blanket prohibitions such as s70 was well made by HREOC in the Bennett case when it was ruled that the mirror Regulation in the PSA was invalid. A reworked Reg. was eventually substituted which was also found to be invalid (which suggests that someone isn't a fast learner... or chooses not to be)and currently the PSA (Commonwealth) has no such sledgehammer.

  2. Thanks Anonymous.The Public Service Regulation sledgehammer the subject of the Bennett case was replaced by a scalpel that remains in force.
    ALRC DP 74 Review of Secrecy Laws (
    includes discussion of the Bennett case and subsequent developments( starting at 2.67). Former reg 7(13) of the Public Service regulations 1999 (now repealed) was found to be inconsistent with the implied freedom of political communication in the Australian Constitution.That reg stated:
    "An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge."

    It was repealed and replaced with what now is reg 2.1 in the Public Service Amendment Regulations (No 1) 2006. It is a more measured statement of public service duties and is still in force. See /conductguidelines5.htm

    A challenge to this formulation on constitutional grounds failed in the Goreng Goreng case (discussed also in the ALRC DP).

    From memory, constitutional issues weren't mentioned in the WA decision so presumably weren't argued.