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Tuesday, 22 November 1960

Mr WHITLAM (Werriwa) .- by leave - I move -

In proposed section 70, sub-section (2.) -

Omit " (proof whereof shall lie upon him) "; and

After " disclose " insert " and which at the time of publication or communication had not been published or made known to the public ".

Proposed new section 70 replaces the section of the same number in the principal act; the general marginal notation of both is "Disclosure of information by Commonwealth officers ". The Opposition believes that it should not be possible for Commonwealth officers to harm the country or to enrich themselves by disclosing secrets which come to them in the course of their employment. Nevertheless, we do not believe, first, that we should impose upon them the onus of disproving one of the elements of the offence. We do not think that this is an appropriate case for reversing the normal onus of proof which rests on the Crown in criminal cases. Section 70 of the principal act does not provide for the reversal of the onus of proof. We do not think that in this respect the new section is an improvement on the old.

We believe, secondly, that there should be an exception in cases where the secret matters are in fact no longer secret. There are far too many instances in this amending bill which make it possible to deal with what are called official secrets, but which are neither official nor secret, which make sabotage the damage of articles which have no defence significance at all, and which make espionage the revelation or communication of materials which are not secret and which have no defence significance.

This provision is open to criticism on several grounds. It is not confined to the disclosure of matters which are plainly and genuinely secret matters - for instance, defence matters. It is wide enough to cover thousands of matters which are not really secret at all. There are few words more absolute in sound but more relative in fact than the word " secret ". What is confidential or secret to-day may be common knowledge to-morrow. Secondly, as applied to the Public Service, there are many matters which may be secret or confidential at a given time, not because they are intrinsically secret matters involving the safety or security of Australia, but because they arise at certain stages of the formulation of governmental or departmental policy. The reason for the matter being restricted or confidential or secret may disappear once a new phase of policymaking is reached or once the policy itself becomes a matter of public or at least general inter-departmental knowledge.

Thirdly, the duty not to disclose may not always be clearly defined. It may be that there rs an instruction in writing about certain matters which must not be disclosed. This is unlikely if the fact or document is genuinely a secret matter. It may be that in certain Commonwealth undertakings everything is secret and remains so, so that no fact or document coming to the knowledge of or into the possession of the officer may be disclosed. But this surely rs only in rare instances. In the general run, there is unlikely to be any very precise instruction or direction in relation to any particular fact or document. This set of circumstances alone would place great hardship on a former public servant who contemplated publishing material which included facts that had come to his knowledge whilst he was an officer of the Commonwealth.

Mr Duthie - Publishing his memoirs!

Mr WHITLAM - There would be many thoroughly worthy and admirable instances of such memoirs. Sir Robert Garran, for instance, used a very great deal of material in his posthumously published " Prosper the Commonwealth ". Since it was published posthumously he would not be subject to this provision, but if it had been published during his lifetime, he would have been subject to prosecution under this provision; not that he did any harm to his country, or to any government that he served or to the service of which he was the leader for several decades, but technically because he did publish very much material which he was never authorized to publish. Much of the material touched upon matters which were already matters of public knowledge, and indeed of history. We have all been enriched by his full story of many matters with which he was associated; but he was never authorized to publish that material and it would have been impossible for him to secure authority to publish it.

Mr Duthie - Mr. Frank Green would be in the same boat; he published memoirs, too.

Mr Cope - He could have given details of the Browne-Fitzpatrick case.

Mr WHITLAM - I do not concede that Mr. Green, if he published any material on the contempt case that has been mentioned, would be committing an offence, because section 22 of the principal act exempts matters of parliamentary privilege. That is a matter of which my learned friend, the honorable member for Wide Bay (Mr. Bandidt), was not aware or which he did not recollect when he interjected on my colleague, the honorable member for EdenMonaro (Mr. Allan Fraser). A person who was publishing memoirs would have to seek specific authority for the publication, perhaps many years later, of each fact which he proposes to publish. He would have the onus of proving that he had been given such authority. Such authority might well prove difficult to obtain, especially if much time had elapsed since the person ceased to be a Commonwealth officer. At such later time, what person has the authority to unfreeze the fact and permit its publication?

Fourthly, with the passing of the years, the human memory becomes more fallible. Fact and opinion are not always easy to separate in retrospect. There is no limitation of time in the provision, so that the duty not to disclose remains with the officer until his death, unless he either obtains specific authority to publish the fact or document - and that is the only safe way for him - or takes the risk with a fact or document which appears to have become public knowledge with the passing of time, In the latter event he could not prove lawful authority, and it may well be doubted whether the circumstance that the fact had become public knowledge would constitute lawful excuse under the subsection.

Lastly, the matter of criticism in the four cases I have just mentioned is sufficient to show that the offence created by this subsection is dangerously wide and is likely to muzzle former public servants or to inhibit them from publishing information and comment on problems in which they may have had wide experience, and to the public understanding of which they may have much to contribute. The provision could be used not only to punish former Commonwealth officers, but, just as importantly, to prevent the publication of information embarrassing to the particular government at the time of the proposed publication, but nevertheless no longer having any real secret or security aspect about it. Like a number of other clauses in this bill, this provision would operate as a deterrent. It is no answer to say that responsible former officers will not be imperilled if they are careful what they publish. The true position is that responsible former officers will not publish at all, and the whole community may be the poorer for it. This provision strikingly illustrates the proposition that civil liberties are generally in danger when persons fear to exercise the freedoms which they have, in fact, possessed, hitherto, and which the law has left to them hitherto. This provision will in fact make it a continuing offence for public servants to publish information which is no longer secret, and where there is no real moral duty on them to remain silent.

Mr Cope - How would that apply to Sir Frederick Shedden?

Mr WHITLAM - Sir Frederick Shedden would have been wise to keep his opinions to a parliamentary committee and not to publish a book. Indeed, the Minister for Territories (Mr. Hasluck) probably would be guilty of an offence under this act in publishing some of the matters in the official war history. Any public servant or Minister has placed upon him the onus of showing that he had authority to publish these matters - matters which are no longer secret, but which he can no longer find any person to give him permission to publish.

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