The right to leak

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 [2008] 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). First:

Victoria Police publications must not be released before seeking advice from the Freedom of Information Unit

Now, there’s a great FOI culture! It reminds me of when I once asked someone at the front desk of the Queensland DPP for permission to see some exhibits and was told that they don’t release exhibits at all ‘due to Freedom of Information reasons’.

And here’s the second relevant bit:

Employees must not release any information, including documents, that come to their knowledge or possession by virtue of their employment, except where the release or communication of that information is authorised by: legislation and/or Victoria Police policy

That’s pretty  broad! As Warren CJ pointed out, it would seem to bar half the answers to inquiries at the front desk of local police stations. She accepted that Zierk had breached the manual, but rejected the view that the manual defined her duty not to disclose, which was instead set by the common law.

But what about the Charter? Well, as mentioned, it didn’t apply as Zierk’s leaking and charging were in 2006, but Zierk raised Bell J’s non-Charter rights jurisprudence from Ragg to attack the DPP’s ‘by the book’ argument:

The respondent also raised an argument based on the Charter of Human Rights and Responsibilities Act 2006. Whilst it was acknowledged that these events took place prior to the introduction of the Charter, the respondent cited two decisions of this court which commented that the International Covenant on Civil and Political Rights (‘the ICCPR’) may have significance by informing the interpretation of statutes, among other things. The respondent submitted that the ICCPR articulates what is generally referred to as ‘the right to freedom of expression’. Any restriction to this right, it was argued, must be imposed by law and as the Victoria Police Manual, its policies and instructions, do not have the force of law, they cannot limit the respondent’s right to freedom of expression.

This argument is consistent with my recent post on how public authorities can limit rights: only laws will do and not just the say-so or fiat of a public authority. Indeed, the ICCPR’s right to freedom of sppech fits  my ‘only laws can limit rights’ argument much better than the Charter’s equivalent:

19. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Nice work Zierk! (And her lawyers.) Alas, she drew the short straw in getting Warren CJ, who thinks that everything trumps free speech:

Irrespective of whether there was a duty not to disclose, the respondent was not authorised to release the information. The Victoria Police, as with all organisations, must keep some material confidential. That confidentiality will not always, and perhaps rarely, be overridden by the unauthorised person’s ‘right to freedom of expression’.

No Chief. The question isn’t whether free speech overrides confidentiality. It’s whether confidentiality overrides free speech. Whether the version of free speech in question is the ICCPR or the Charter, that requires a law – or at least a ‘lawful restriction – that is (reasonably) ‘necessary’ to achieve a wide but not unlimited set of purposes: protecting rights, reputations or various prime public purposes. That is, if you are taking either document seriously. Earl Warren, she aint.

In the end, Warren CJ dismissed the appeal, arguing that the police’s duty not to disclose relates to their functions of stopping crime and all that, but that the line between function and duty is only crossed when the context calls for it. The duty to disclose extends to situations when an operation or lives would be imperriled, but not when the information is harmless. In short, it’s not a crime to do a benign leak. At least, not on current law.

A future Charter issue – at least for a judge who treats human rights as anything other than a gnat to be swatted away in the name of any traditional legal interest that comes to mind – may be whether the concept of a ‘duty not to disclose’ is so vague and unpredictable that it can’t properly be an element of a crime (or at least one that impinges on a human right.) See the quotes from the ECtHR in my summary essay on the Charter.

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