Leaking and publishing are two different things

Australia's leading academic on whistleblower protection Professor A J Brown of Griffith University Law School,gave the keynote address to the Annual General Meeting of Transparency International Australia, in Sydney tonight.

 Professor Brown said:

"Trying to target and control Julian Assange is not likely to be an effective response to these leaks, in either the short or long term... “The conflict over Wikileaks is at risk of turning into a war between a naive but powerful vision of global cyber-liberty, and the “1984” nightmare of an internet subject to massive government regulation and control.” “This is not a war that either side can ever win.”

Professor Brown said there was a need for a more considered response from governments about how they will improve their whistleblowing systems so that genuine wrongdoing can be disclosed when needed by government insiders – including through the media and internet. 

“Creating a martyr out of Julian Assange – as advocated by a range of politicians – is unfortunately typical of the ‘shoot the messenger’ attitude that has often prevented decisionmakers from appreciating how best to respond to whistleblowing.” “It also distracts from the very important issue of developing effective regimes for regulating the responsibilities of publishers and journalists in respect of both ‘leaks’ and public interest disclosures.”

As I see it Assange is not a whistleblower as far as we know the story so far. He publishes,with relish, material leaked to him. Few suggest he's done anything more, although Prime Minister Gillard initially described the WikiLeaks website as "illegal" and subsequently toned this down to "grossly irresponsible." And Attorney General McClelland is still going on about possible breaches of someone's law.

WikiLeaks' willingness to publish purloined materials no doubt encourages leaks but Assange is not alone in this.The Australian in an editorial yesterday said

"The free flow of information is the lifeblood of democracy, and we share WikiLeaks founder Julian Assange's abhorrence of unnecessary secrecy. In fact, we support leaks of all sorts." 

From a media perspective this is understandable. But the issues concerning actions by WikiLeaks and Assange are free speech/freedom to publish matters. The relevant question is whether publication and republication of leaked materials has crossed any free speech or freedom to publish boundaries. WikiLeaks is not alone here-it has media outlets around the world standing alongside. US voices that cry "kill him", "terrorist" etc will be faced with a long list if consistency is their go. And as Professor Brpwn said tonght those that advocate stopping this sort of thing being posted on the internet are sounding more Chinese by the minute.

Different issues arise regarding the leaker or leakers . No organisation government or private can operate effectively if any employee is free to disclose anything they wish. However because of the nature of government and the information it holds, special rules apply to the right to access government information. Generally we're entitled to know what government knows unless there are good reasons why not. A contentious and ongoing issue is where to draw the line between the two. We have laws (that could be improved), processes (ditto), cultural attitudes within government that too often favour secrecy (ditto), and independent umpires to sort through these issues.

In addition, whistleblowing, bringing to attention instances of wrongdoing, particularly in the public sector is to be encouraged.Those who act to do so in accordance with reasonable rules regarding how this should be done, including going public as a last resort, should be protected. What constitutes wrongdoing-in emerging Australian practice but not apparently in US Federal law- is defined by statute to encompass corruption, waste and maladministration. Not everything that an employee might be privy to constitutes wrongdoing. So not all leakers are whistleblowers.  There has been no attempt to date to defend the leaked cables on this score. Someone who leaks a random 250,000 diplomatic cables covering a wide spectrum of international dealings is not necessarily entitled to protection of the law, although some may qualify as material the disclosure of which is in the public interest.The leaker has to be prepared to accept the consequences if caught.