Comparative leaking

The ACT’s Charter (the much-better-named Human Rights Act 2004) got a passing mention in R v Tjanara Goreng-Goreng [2008] ACTSC 74. I usually don’t cover ACT cases (as ACTHRA does all that) but this one is on basically the same criminal offence as a Charter-related case, DPP v Zierk (blogged on here.)  Zierk involved a Victoria Police officer who leaked non-secret police manuals on speeding to an ex-officer, whereas the ACT case involved a federal public servant accused of telling the subject of a complaint about the details of the complaint (in a chain of events that contributed to the NT intervention.) So, unlike the Victoria Police disclosure offence, the ACT case involved a federal offence:

70(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

Interestingly, though, both offences follow the same form, which is a common form across Australia that (apparently) originated in Victoria in the mid-nineteenth century. And both cases involved an assessment of documents thought to define the duty of non-disclosure. What is especially interesting (and something I was unaware of) is that there was an earlier federal court judgment in 2003 on the compatibility of the regs defining the duty of non-disclosure for federal public servants with the Constitution’s freedom of political communication.

So, there are now three cases, from three different Australian courts, on a common rights issue: the extent to which a public servant’s freedom of expression (in the form of leaking) can be limited by laws promoting the state’s interest in the confidentiality of its administrative workings. Here are three quotes from each of the three cases:

Irrespective of whether there was a duty not to disclose, the respondent was not authorised to release the information… [A]ll 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’.

[W]hatever may have been acceptable in the past… the State’s interests do not override as of course any other legitimate interest of the public servant with which they conflict… However, it equally has been well recognised that such other legitimate interests… similarly do not override the State’s interest in regulating its officers and employees.

If one accepts, as I do,… that government as an employer has a legitimate interest in preventing disclosures that would or might interfere with their effective operations, the question is not that one starts with a preference for disclosure, but rather how does one determine the limits.

The order here is (what I judge) as the most restrictive view on freedom of expression to the least restrictive. The last two are pretty close, while the first one – with its  view that freedom of expression ‘perhaps rarely’ overrides confidentiality – clearly strikes the relevant balance squarely in favour of confidentiality and against freedom of expression.

So, it’s sad, isn’t it, that the most restrictive quote is Warren CJ’s dictra in Zierk of the Charter’s role in such cases, while the less restrictive quotes concern non-HRA/Charter cases, including one that preceded both statutes?  Of course, I complained about Warren’s comment in my earlier post on Zierk, but I’m mentioning it again because, back then, I was unaware of the earlier Fed Court judgment, which actually struck down a regulation setting out the duty of non-disclosure for federal public servants as unconstitutional. To my mind, this goes to show how out-of-synch Warren CJ’s views in Zierk (and, I’d say, the Underbelly case) are with the law on free speech. The fact that my criticism of the Underbelly case is clearly a minority view had left me concerned that I’m out-of-synch (and of course I may still be.) But it’s surely surprising that a compatibility issue that is treated so seriously by judges applying the Constitution (with its notoriously narrow approach to human rights) while being casually dismissed by a judge applying the Charter (and a chief justice at that.)

By contrast, Refshauge J in Goreng-Goreng was at pains to note that the ACT Human Rights Act may well provide more protection for free speech in this context then the Constitution. He dismissed a constitutional challenge to this much-improved federal regulation defining the duty of non-disclosure of federal public servants:

2.1(3) An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs.

But he was much less sanguine about a concern that the regulation was too vague, especially given that it effectively defined a criminal offence:

I have found this the most difficult ground. It is correct that a person should be able to know clearly what is going to be criminal conduct before one engages in it. It may be, that such an approach is not required where what is at issue is only a matter of discipline, such as an employer is entitled to expect of and exact upon an employee. On the other hand, there are many examples of criminal laws which depend upon judgment: dangerous driving and manslaughter by negligent conduct come easily to mind. I have also to consider the context of the provision. We are considering conduct which almost inevitably will not lend itself to an exact description which cannot be a matter of judgment…

The description of the legitimate interests of government… namely the “effective operations of government” do not of themselves mean that this is the appropriate description in a regulation. Nevertheless, it is a fair description of what information should not be permitted and I am sure that public servants will, by and large, comprehend what is encompassed…  Accordingly, not without considerable hesitation, I have concluded that reg 2.1 is not invalid as uncertain and that this attack also fails.

Refshauge was applying High Court judgments that he noted were more forgiving of uncertainty than the English view that was based on jurisprudence of the European Court of Human Rights and the United States Supreme Court. This lead him to make the following passing comment:

While the situation in this Territory might, therefore, be different because of the Human Rights Act 2004 (ACT), a question on which I presently offer no view, that Act cannot, of course, affect Commonwealth legislation.

The scrutiny of laws, especially criminal offences, for uncertainty is an area of human rights law that I view as a potentially very important contribution to Australian law that might flow through the ACT HRA and the Charter, especially in the context of pre-enactment scrutiny and declarations of inconsistent interpetation. Justice Refshauge is clearly in tune with this concern. But are Victoria’s judges?

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