Whistleblowing, National Security and the Constitutional Freedom of Political Communication
| Date | 01 September 2018 |
| DOI | 10.1177/0067205X1804600301 |
| Published date | 01 September 2018 |
| Subject Matter | Article |
CONSTITUTIONAL FREEDOM OF POLITICAL
COMMUNICATION
Danielle Ireland-Piper* and Jonathan Crowe**
ABSTRACT
Whistleblowers promote the values of responsible government and the rule of law by
drawing attention to criminal or other forms of wrongdoing in publicly accountable
organisations. This article explores the relationship between whistleblowing, national
security and the implied freedom of political communication under the Australian
Constitution. Legislation such as the Crimes Act 1914 (Cth) (‘Crimes Act’), the Australian
Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) and the Australian Border
Force Act 2015 (Cth) (‘Border Force Act’) makes it an offence to reveal certain types of
information obtained as a Commonwealth officer. The Public Interest Disclosure Act
2013 (Cth) (‘PIDA’) offers limited protection to whistleblowers in the Commonwealth
public sector, but this protection does not extend to information relating to intelligence
operations. We argue that blanket criminalisation of unauthorised disclosure by
Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar
prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the
implied freedom of political communication by failing to strike an adequate balance
between national security and organisational secrecy, on the one hand, and public
debate and discussion, on the other. The courts should read down these laws to protect
disclosures that hold significant public interest for discussion and debate over
government policy or the performance of government officials.
I INTRODUCTION
The modern administrative state encompasses a vast array of governmental and quasi-
governmental institutions. The way these institutions operate is a matter of legitimate
public interest. The doctrine of responsible government, which the High Court has
long viewed as embedded in the Australian Constitution,1 is meant to serve as a check
on the executive by making it accountable to the Parliament. The electoral process, in
*
Associate Professor, Faculty of Law, Bond University
** Professor of Law, Bond University. The authors would like to thank Jake Buckingham, Eoin
Coffey, and Amy Kosa for their excellent research assistance.
1
See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 147
(Knox CJ, Isaacs, Rich and Starke JJ); Victorian Stevedoring and General Contracting Co Pty Ltd
v Dignan (1931) 46 CLR 73, 114 (Evatt J).
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turn, is designed to keep both the executive government and the Parliament
accountable to the people. However, these processes only work if government
institutions are transparent and information about their workings is available to
legislators and the public at large. There is a constant danger that bodies operating
under the auspices of the state will be infiltrated by fraud, corruption, cronyism or
other abuses of power.
A whistleblower is someone (typically an employee or other insider) who brings
attention to criminal or other forms of wrongdoing in a publicly accountable
organisation, such as a government body or publicly listed corporation.2 The dangers
of abuse of public power described above explain why whistleblowers have an
important role to play in modern governance. Whistleblowers can act as a safeguard
against the tendency of powerful organisations to close ranks against outsiders to
prevent internal problems from coming to light. Whistleblowing is ‘a complex
phenomenon that is inextricably linked to power relations within organisations’:3 it is
often a last resort for those who feel disempowered by formal accountability processes.
Nonetheless, whistleblowing plays an important role in accountability, since those
who hold operational roles are often the first to become aware of problems or
wrongdoing.4 Insiders may sometimes be the only people who have access to
information revealing misconduct or abuse of power.
It follows that whistleblowing is ‘an important tool in fighting corruption, enforcing
laws, protecting public safety and helping ensure good governance’.5 Potential
whistleblowers, however, often have strong incentives not to come forward unless
they are afforded clear and robust legal protections. Furthermore, whistleblowing itself
is not an unqualified good:6 valid and well-handled complaints can result in positive
organisational change, but frivolous or poorly articulated claims can cause needless
disruption to important public institutions. The importance of legal protections for
whistleblowers, along with the challenges posed by vexatious or poorly-handled
complaints, reinforces the need for whistleblowing to be regulated by a clear and
reliable legislative regime.7 However, the protection of whistleblowers also needs to be
balanced against the need for confidentiality, organisational discipline, loyalty and
trust within governmental bodies. These issues are particularly acute in the context of
intelligence and national security operations.
This article explores the relationship among public sector whistleblowing, national
security and the implied freedom of political communication under the Australian
Constitution. It begins by examining Commonwealth legislation dealing with
whistleblowing in the public sector generally, before extending this analysis to statutes
dealing with whistleblowing in the context of intelligence and national security. We
2
Cf Janet Near and Marcia Miceli, ‘Effective Whistleblowing’ (1995) 20 Academy of
Management Review 679, 680.
3
Kim Loyens and Jeroen Maesschalck, ‘Whistleblowing and Power’ in A J Brown et al (eds),
International Handbook on Whistleblowing Research (Edward Elgar, 2014) 154, 154.
4
Jeremy Lewis et al, Whistleblowing Law and Practice (Oxford University Press, 2nd ed, 2012) 1.
5
A J Brown et al, International Handbook on Whistleblowing Research (Edward Elgar, 2014) xix.
6
Near and Miceli, above n 2, 679.
7
John McMillan, Bruce Barbour, and David Bevan, ‘Foreword’ in A J Brown, Public Interest
Disclosure Legislation in Australia: Towards the Next Generation, Issues Paper No 1 (2006)
2018 Whistleblowing, National Security and the Constitutional Freedom of Political Communication 343
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then discuss the relationship between whistleblowing and the implied freedom of
political communication endorsed by a unanimous High Court in Lange v Australian
Broadcasting Corporation.8 We argue that the blanket criminalisation of unauthorised
disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act 1914
(Cth) (‘Crimes Act’), along with similar prohibitions in s 35P of the Australian Security
Intelligence Organisation Act 1979 (Cth) (‘ASIO Act) and s 42 of the Australian Border
Force Act 2015 (Cth) (‘Border Force Act’), offend the implied freedom by failing to strike
an adequate balance between national security and organisational secrecy, on the one
hand, and public debate and discussion, on the other. This problem is not adequately
resolved by the limited whistleblowing protections found in the Public Interest
Disclosure Act 2013 (Cth) (‘PIDA’) and the specialised legislation mentioned above. The
courts should read down these laws to protect disclosures that hold significant public
interest for discussions of government policy or the performance of government
officials, where disclosure does not impede a compelling security interest or
compromise human life or safety. This would be consistent with the High Court’s
jurisprudence on the implied freedom.
II THE LEGISLATIVE FRAMEWORK
The legislative regime governing whistleblowing in the Commonwealth public service
comprises two main components: disclosure offences, which criminalise the disclosure of
certain kinds of information obtained in an official capacity, and whistleblowing
protections, which create exemptions to the disclosure offences to protect
whistleblowers in defined circumstances. The overarching disclosure offence is
contained in s 70 of the Crimes Act, which imposes a general duty on Commonwealth
officers not to disclose information obtained in the course of their employment. The
main whistleblowing protection regime, by contrast, is found in the PIDA. Additional
disclosure offences relating to intelligence and national security operations appear in s
35P of the ASIO Act and s 42 of the Border Force Act. This section begins by outlining
the general whistleblower provisions in the Crimes Act and the PIDA. We then consider
the applicability of the protections in the PIDA in national security contexts in light of
the ASIO Act and the Border Force Act.
A The Crimes Act and the PIDA
Section 70 of the Crimes Act imposes a duty on current and former Commonwealth
officers not to disclose ‘any fact or document which came to [their] knowledge, or into
[their] possession, by virtue of being a Commonwealth officer’, without official
authorisation. Breach of this duty is a serious criminal offence. The main exception to
this prohibition is found in the PIDA. The PIDA was described by the Commonwealth
Attorney-General at enactment as
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