Topically enough, today brings the first Charter case on the right to leak (an aspect of the right to freedom of expression.) But don’t get too excited: Charter s. 49 – as per usual, this year – ensured that the Charter didn’t apply. Indeed, the real news is that Warren CJ’s summary dismissal (as part of a unanimous Court of Appeal judgment) of free speech in the Underbelly case is no one off.
The leaker is Acting Senior Sergeant Kathleen Zierk who, in 2006, was in charge of support services in a division of Victoria Police, including responsibility for speeding cameras. She had a friend who, despite being a former cop himself, wanted to get out of a speeding ticket. A former cop. I’m shocked. And he asked Zierk to help him research the operation of speeding cameras. She obliged, by sending him five police manuals on how speed cameras work, including the message “but remember, you didn’t get this from me.’
These sly acts of espionage were craftily perpetrated on Victoria police’s own e-mail network. Zierk got pinged to Ethical Standards when someone noticed the suspiciously large document. But she wasn’t charged with perverting the course of justice. The slight snag was that the manuals were mostly publicly available, the parts that weren’t were already known to Zierk’s little mate, and, anyway, they provided nothing that could be misused to get out of a speeding ticket. To the contrary, they probably would have had to be disclosed as part of prosecutorial duty to disclose. In other words, it was a most benign leak. (For the record, Zierk claimed that her ‘you didn’t get this from me’ was just common Academy banter, a point confirmed by another witness. Right.)
Zierk was therefore prosecuted under a special provision of the Police Regulation Act that, it was claimed, covered benign leaks:
127A(1) A person who is a member of police personnel must not… disclose any information that has come into his or her knowledge or possession, by virtue of his or her office or by virtue of performing his or her functions as a member of police personnel, if it is the member’s duty not to… disclose the information. Penalty: 240 penalty units or imprisonment for 2 years or both.
Zierk’s conduct clearly satisfied most of this. But a magistrate ‘no cased’ her prosecution on the basis that it wasn’t proven that she had a ‘duty not to disclose’ the not-so-top-secret camera manuals. DPP v Zierk  VSC 184 is the DPP’s appeal against that decision.
The interesting Charter point was the DPP’s desperate argument that Zierk’s duty not to disclose was defined by… a manual: the Victoria Police Manual. Here’re the relevant bits (but remember, you didn’t get this from me). Continue reading