Loyalty versus the public interest: JACK WATERFORD looks at where the balance lies
ALLAN Kessing’s only chance, before the courts on charges of breaching the Commonwealth Crimes Act for leaking a Customs report, lay in his denial that he had leaked it at all. A jury didn’t believe him. The proof that he had leaked it was circumstantial at best, if perhaps buttressed by Kessing’s line that if he had, he would not have been ashamed of having done so.
The Customs document - a two-year-old report, mouldering and ignored in department files - said security at Australian airports, even in the wake of September 11, was a complete disgrace, leaving Australia wide open to an attack by terrorists and to drug importers. No one, in Customs at least, seemed interested in doing anything about it. Kessing retired, bitter and disappointed.
Then a copy was leaked, to a journalist at the Australian. Its contents were a sensation, and an embarrassed government announced an external inquiry, to be led by a British expert on airport security. When he confirmed the findings of the Customs report, the government announced major reforms costing several hundred million dollars. The country is probably safer, whether from terrorists or drug importers, as a consequence.
Kessing was convicted under Section 70 of the Crimes Act, which makes it an offence for a public servant (or former public servant) to publish or communicate “except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge by virtue of being a Commonwealth officer, and which it is his duty not to disclose.” Penalty: two years’ jail. Kessing got nine months, suspended on the basis that, being retired, he could hardly do it again.
The trial judge was at great pains to tell the jury that it was a strict liability offence, in which no question of public interest arose. So far as intention went, all that was relevant was Kessing’s knowingly passing on the report, and knowing that it was his duty not to disclose it. The duty part is, by this theory, a matter of fact only: prima facie a report such as this should be kept from the innocent public or the press.
The judge’s insistence that the public interest did not arise has a respectable history, though it is not an inevitable conclusion. A British public servant, Clive Ponting, was charged under similar provisions in the British Official Secrets Act for leaking the fact that his prime minister, Margaret Thatcher, had misled Parliament over the sinking of the Belgrano during the Falklands War. Despite warnings by the judge about the absence of a public interest defence, a jury acquitted him. After several other embarrassing leaks, the government reviewed its official secrets legislation and considered a public interest defence before saying that it was impossible to put one in.
It is clear the British Parliament does not want one, though there are other protections, going to the sort of damage caused, which have an aspect of this. But our Crimes Act provision was law before the British history, and it would not be impossible for it to be interpreted differently here.
Some, however, including many senior public servants, would say that it should not be. A leak, by definition, is disloyal to one’s employer and in breach of a duty of fidelity. It is perhaps the more serious when the employer is the government and where the public servant’s obligations are also a matter of statute and code of conduct as well as of the master-servant relationship. And it is, surely, arrogant for an individual to decide what the public interest is and at the expense of the elected government of the day, which, in fact and in theory, encapsulates the public interest. It is not, in short, for public servants to determine for themselves what public interest requires. In any event, against an arguable public benefit from a public-spirited leak is the damage caused by the lack of trust between ministers and public servants.
That is a view reiterated in recent public service subsidiary legislation - some of it promulgated in the wake of a failed prosecution of another Customs officer - and in Public Service Commission memorandums, as well as in speeches made by various senior public servants, from PM&C head Dr Peter Shergold down. The Australian view does not even reflect the modern British position which requires “damage” as a result of leaks. The damage can be institutional (as in imperilling confidential exchanges between governments) but must also be real, as opposed to theoretical. In Britain there is a world of difference between leaking, say, battle plans and the invoice for the office coffee supplies; in Australia, in theory, there is not. One is as improper as the other.
Is there a way out, not least for those who want sanctions against sheer disloyalty? It may well be that the thinking of Justice Paul Finn, whose reasoning in Bennett v HREOC inspired the latest Australian changes, goes in the right direction. For Finn, being a public servant is first and foremost being the holder of an office of trust - a stewardship of the public interest. A public servant is also in an employment relationship, and in a hierarchy leading up to a minister, and ministers have particular duties and prerogatives. Those relationships help define the public servant’s role, just as codes of conduct provide authoritative guidance about how the stewardship should be approached.
But the primary source of duty is not an employment relationship. And the public interest, or welfare, is much more than a distillation of what the minister or government of the day wants, or what the duty statement says. It is also what the law, custom, equity, and the various institutions of checks and balances require. In just the same way as we speak of the duty to give full, frank and forthright advice to a minister and suggest a public servant would be derelict in her duty if she failed to it can be the duty of a public servant to let the public know about things which could put their interests at peril. Just where duty lay in a particular case between loyalty and discretion, and adherence to the forms, on the one hand, and disclosure on the other might be a matter of contention where one should, perhaps, lean towards discretion. But it would be impossible to say there was no circumstance where a duty to the public could not triumph.
By such a standard it would be very significant to be, say, disloyal to a minister by drawing inconvenient facts to public attention, but it might well be one’s duty. It might, indeed, be just what the public interest required. •
Jack Waterford is editor-at-large of the Canberra Times. This article first appeared in the newspaper’s Public Sector Informant section.