Information law and society
Task instructions:
Section 1
Is it accurate to say that the Freedom of Information Act 1982 (Cth) grants an enforceable right to Australians to access information in the public sector? Discuss. (5 marks)
The US Department of Justice’s superseding indictment against Julian Assange is regarded as a global threat against publishing, press freedom and the discussion of national security information. Why would that be so?
Discuss. (5 marks)
Each question: 150 words (approx.) each, totalling 10 marks, and worth 10% of the grade.
Section 2
The online social media service Smooth Link Inc. prides itself on enabling people to share information in a networked setting. Over time, it has altered its privacy settings. From initially being a firm advocate of strict controls, the emphasis on protecting private information has been weakened, though it has failed to give users fully informed updates of this fact. The argument here is that people can “take care of themselves”. There is also a concern that material is being sold to third parties – after all, Smooth Link Inc. has made it clear that it hopes to “monetize” its large base of users. “Users get a service,” says spokesperson Rondo Stench. “We farm the users.”
Unfortunately for Smooth Link Inc., it has been having some trouble of late. It’s approach to security has been poor, leading to incidents of hacking, and a compromise of user data.
The pioneer of Smooth Link Inc., Crikes Sugarberg, likes publicity, and occasionally pops into his favourite Chinese restaurant on Swanston Street called The Dangerous Hot Pot. Melbourne may be in a pandemic lockdown, but the Dangerous Hot Pot offers takeaway. As luck would have it, Shallow Sandy, a journalist for the low circulating paper, the Badger’s Beacon, is also ordering a takeaway meal from the same restaurant. He discretely takes a picture of Sugarberg with his smart phone as he leaves the restaurant. The paper runs it the next day with the caption: “A Killing Look: Sugarberg, spice and all things nice.”
Droolean Massange is a self-confessed troublemaking publisher of national security material and a permanent resident in Australia but remains a Norwegian citizen. Massange runs a blog called Bad Whisperings, which often publishes classified material featuring US diplomacy and military matters. He is so active, one politician from the US Congress, Senator Crunt Strider, keeps telling the US Justice Department to “get a move on and deal with this sucker”.
Frankie Stumble works in the Australian Department of Home Affairs. He has made two trips to the Nauru refugee processing facility, located in the Pacific and funded by the Australian government. On both “fact finding” missions detailing activities in the facility, he noted a history of sexual abuse, physical violence and a few riots that had been brutally suppressed by the private security firm Elementary Inc. with the assistance of Nauru’s police authorities. Several refugees have committed suicide. As per long standing Australian policy, the processing facility remains a highly secretive matter.
Frankie Stumble feels a need to expose the material documented from his fact-finding trips but doesn’t know how to disclose the information. He knows there are “conventional” means of accessing information that journalists and concerned citizens might use, but he is not sure about how effective they are. He has heard about Droolean Massange’s exploits and is tempted to get in touch with him and contributors to his blog. He is not confident that any complaints he makes within his own department will be investigated. He is also worried about recent changes in the law regarding data retention, discussions around special intelligence operations and publishing national security information. He is particularly worried given recent raids by the Australian Federal Police on journalists.
Discuss the state of Smooth Link Inc.’s approach to information security and its legal significance.
What are the implications of Droolean Massange’s behaviour in terms of his publication agenda and his provocations against the United States?
Does Crikes Sugarberg have any recourse against the Badger’s Beacon?
Discuss Frankie Stumble’s predicament. To whom should he disclose the information detailing the abuses taking place in the Nauru processing facility? Are there other “conventional” channels such information might be legally accessed by publicly interested parties?
What would be the consequences, if any, of Frankie disclosing that material to Droolean Massange? Is he justified in being worried about the passage of recent national security legislation?
In your response, consider possible defences that might arise for either Frankie Stumble or Droolean Massange, if any.
The question is worth 30 marks, totalling 30% of the grade. Approximate word length: 1700 words. You may use sub-headings in answering the question. Reference to legal principles, cases and legislation should be made where relevant. Feel free, in addressing the questions, to discuss the broader ethical problems of disclosing or concealing information.
Focus more on legislations and cases and cite the sources in accordance with AGLC4 style
Sources: ON LY USE THESE PROVIDED – DO NOT use external sources
Assange, Julian. ‘State and Terrorist Conspiracies’, Nov 10, 2010, http://cryptome.org/0002/ja-conspiracies.pdf.
Birchall, Clare. ‘Radical Transparency?’ Cultural Studies – Critical Methodologies 14, 1 (Feb, 2014): 77-88.
Kampmark, B. ‘Radical Transparency in Geopolitical Economy: WikiLeaks, Secret Diplomacy and the Trans-Pacific Partnership’, Journal of Global Faultlines 3, 1 (Mar., 2016): 1-15.
Khatchadourian, Raffi. ‘No Secrets: Julian Assange’s mission for total transparency’, The New Yorker, Jun 7, 2010, http://www.newyorker.com/magazine/2010/06/07/no-secrets
United States v Julian Paul Assange, Second Superseding Indictment, US Department of Justice, June 2020, https://www.justice.gov/opa/press-release/file/1289641/download.
The Government of the United States of America v Julian Paul Assange, Westminster Magistrates’ Court (January 4, 2021), https://www.judiciary.uk/wp-content/uploads/2021/01/USA-v-Assange-judgment-040121.pdf
Holmes, J. ‘Julian Assange and the slow stupefaction of the State’, The Drum, ABC, Dec 9, 2010.
Spannos, C. ‘Why academics (and the US govt) are so terrified of WikiLeaks’, Crikey, Dec 21, 2015, http://www.crikey.com.au/2015/12/21/why-academics-and-the-us-govt-are-so-terrified-of-wikileaks/
Žižek, Slavoj. ‘Good Manners in the Age of WikiLeaks’, London Review of Books 33, 2 (20 Jan, 2010), 9-10.
Fenster, Mark. “Disclosure’s Effects: WikiLeaks and Transparency,” Iowa Law Review 97 (2012): 754-807, http://works.bepress.com/cgi/viewcontent.cgi?article=1009&context=mark_fenster
___ “The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State,” Law Review (2011): 1-57, http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=mark_fenster
Papandrea, Mary-Rose. “Balancing and the Unauthorized Disclosure of National Information: A Response to Mark Fenster’s Disclosure Effects: WikiLeaks and Transparency,” Iowa Law Review Bulletin 97 (2012): 94-114, http://lawdigitalcommons.bc.edu/lsfp/484/
Kampmark, Binoy. “A Parliament of Leakers: WikiLeaks and the New Vision,” CounterPunch, Aug 8, 2012, http://www.counterpunch.org/2013/08/08/a-parliament-of-leakers/
Emerton, Patrick Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Intelligence Services Legislation Amendment Bill 2011, Castan Centre for Human Rights Law, Monash University, “https://www.monash.edu/__data/assets/pdf_file/0015/140604/intel-services-legislation-amend-bill.pdf
Pompeo, Mike. ‘Remarks at the Centre for Strategic and International Studies’, Central Intelligence Agency, News & Information, Apr 13, 2017, https://www.cia.gov/news-information/speeches-testimony/2017-speeches-testimony/pompeo-delivers-remarks-at-csis.html.
Freedom of Information Act 1982 (Cth)
McMillan, John and James Popple, Review of Freedom of Information Legislation, Submission to the Hawke Review, Dec 2012, http://www.oaic.gov.au/news-and-events/submissions/foi-submissions/review-of-freedom-of-information-legislation
American Civil Liberties Union et al v Department of Justice, et al, Filed 10 October 2010, http://www.aclu.org/files/assets/15__cia_s_motion_for_summary_judgment_10_01_10.pdf (regarding information on drone strikes)
Timmins, P. ‘Notable FOI cases over 30 years’, Open and Shut, Jan 18, 2013, http://foi-privacy.blogspot.com.au/2013/01/notable-foi-cases-over-30-years.html#.WWwXm4SGOUk
The common law duty to support and protect whistleblowers: Wheadon v State of NSW (unreported, DC [NSW], Cooper J, No. 7322/88, 2 Feb 2001)
Kampmark, B. ‘Warring Against Sources: The Australian National Security State, Journalism and the Public Interest’, CounterPunch, Jun 10, 2019.
___ ‘Witness K: Gangster Capitalism meets Kafka’, Arena Online, June 24, 2021, https://arena.org.au/witness-k-gangster-capitalism-meets-kafka/.
Public Interest Disclosure Act 2013 (Cth)
Martin, B. The Whistleblower’s Handbook: How to be an Effective Resister (Charlbury, UK: Envirobook, 1999), http://www.bmartin.cc/pubs/99wh.html.
Australian Securities & Investments Commission (ASIC), ‘Guidance for whistleblowers’, INFO 52, http://asic.gov.au/about-asic/asic-investigations-and-enforcement/whistleblowing/guidance-for-whistleblowers/.
Australian House of Representatives Committees, “Inquiry into whistleblowing protections within the Australian Government public sector,” available at: http://www.aph.gov.au/parliamentary_Business/Committees/House_of_Representatives_Committees?url=laca/whistleblowing/report.htm#chapters
Orifici, A. and T. Webster. ‘A New Whistle at Work’, (2013) 87 Law Institute Journal 30, http://www.liv.asn.au/Mobile/Home/Law-Institute-Journal/Article?NodeID=509756&NodeParentID=509746
National Security Legislation Amendment Act (No. 1) 2014 (Cth).
Telecommunications (Interception and Access) Act 1979 (Cth)
Attorney-General’s Department, ‘Data Retention’, https://www.ag.gov.au/dataretention
Griffiths, E. ‘Federal Government introduces legislation for controversial data retention plan’, ABC News, Oct 31, 2014, http://www.abc.net.au/news/2014-10-30/turnbull-introduces-data-retention-bill-to-parliament/5853156
Kampmark, B. ‘ABC raid legitimised by Federal Court’, Eureka Street, February 20, 2020, https://www.eurekastreet.com.au/article/abc-raid-legitimised-by-federal-court
Kampmark, B. ‘Right to Know still has a long way to go’, Eureka Street, April 16, 2020, https://www.eurekastreet.com.au/article/right-to-know-still-has-a-long-way-to-go.
Criminal Code Act 1995 (Cth)
13 Australian Privacy Principles
Cases – IMPORTANT TO USE THESE
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
“To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections.” (566)
The High Court held that the implied freedom of political communication does not confer any personal rights to freedom of speech, but operates as a constraint of legislative and executive power.
“Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution” (Lange’s case)
Levy v Victoria (1997) 189 CLR 579
“
signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it”.
Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133
ABC failed to invalidate the search warrant. Justice Abraham accepted that the offences connected with the warrant – namely the passing of national security information from David McBride to the ABC – was clear and not too broad.
While the search/warrant power might ‘indirectly burden the implied freedom… the purpose of the law [to grant a warrant to investigate criminal offences] is legitimate, and it is reasonably appropriate and adapted to advance that purpose’.
The journalistic code provided ‘no absolute privilege’ for the supplier of information. The ABC had attempted to elevate ‘source protection [i.e. the disclose of confidential material to journalists] to a position which, on the current state of the law, it does not have.’
There would be no ‘chilling effect’ for military and intelligence operatives coming forward to expose abuse.
Smethurst v Commissioner of Police [2020] HCA 14
The warrant was quashed. It was not clear. It misstated the offence, and failed to identify an offence connected with the Crimes Act.
Court needed to balance the need for an effective criminal justice system with that of protecting an individual’s liberty from arbitrary invasion of their privacy.
Smethurst failed in her attempt to get material taken from her and what was put on a USB. The AFP could keep it.
Chief Justice Susan Kiefel, along with Justices Virginia Bell and Patrick Keane noted, ‘neither the common law nor statute law presumes that information unlawfully obtained may not be used in the investigation or prosecution of an offence.’
R v Kessing (2008) 73 NSWLR 22; Kessing v The Queen [2008] NSWCCA 310
Commonwealth v Fairfax (1980) 147 CLR 39.
Victoria Park Racing and Recreation Grounds Co. Ltd v Taylor (1937) 58 CLR 479, at 494.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Grosse v Purvis [2003] QDC
Queensland District Court accepted that a breach of privacy did occur as a result of persistent stalking by the defendant over a prolonged period;
It was logical and desirable to recognise “a civil action for damages based on the actionable right of an individual person to privacy” (Skoien SDCJ)
Aggravated compensatory damages and exemplary damages awarded.
Elements recognised:
A willed act by the defendant;
Which intrudes upon the privacy or seclusion of the plaintiff;
In a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities;
And which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to [at 442]
A public interest defence might be available though not applicable here
Jane Doe v Australian Broadcasting Corporation [2007] VCC 281)
Kalaba v Commonwealth of Australia [2004] FCAFC 326
