04 February 2019

Access and Secrecy

'Access to legal records by children leaving State care: The experience of young people in NSW' by Brooke Greenwood, Julia Mansour and Celia Winnett in (2019) Alternative Law Journal comments 
For those who have been in the care of the State as children, access to records can be critical to securing justice and redress for past wrongs. This article outlines the arguments made in recent litigation undertaken by the Public Interest Advocacy Centre (PIAC) on behalf of young people who requested access to legal audits conducted on their files by the New South Wales (NSW) Department of Family and Community Services (FACS). It documents the policy change that was achieved as a result of the litigation and makes recommendations for further reform to better realise the rights of children in care to access their records. 
The authors state
 For those who have experienced institutional care as children, access to records can be critical to securing justice and redress for past wrongs. The importance of such records has been thrown into sharp relief by a series of inquiries including, most recently, the Royal Commission into Institutional Responses to Child Sexual Abuse. These inquiries have also exposed the difficulties faced by young people and adults leaving care in accessing their records, both historically and under current State and Commonwealth schemes for the release of information. In 2017, the Public Interest Advocacy Centre (PIAC) represented a number of young people who had been refused access to records of legal advice sought in respect of their files by the NSW Department of Family and Community Services (FACS) during their time in State care. Julia Mansour and Brooke Greenwood of PIAC were the instructing solicitors in the lead proceeding brought in the NSW Civil and Administrative Tribunal (NCAT), with Celia Winnett of the NSW Bar acting as pro bono counsel. The cases raised the novel legal question of whether the State can rely on legal professional privilege to deny a person access to legal advice sought about that person’s rights and entitlements while a child in State care. In this respect, they raised an important children’s rights issue. 
The cases were ultimately settled by the release of the relevant information and, as a result, FACS has reviewed and changed its policy regarding reliance on legal professional privilege in such circumstances. Drawing from the written submissions filed in the proceeding, this article provides an overview of the legal arguments advanced by the authors on behalf of the young people, including the meaning of the word ‘client’ in the context of the privilege, the application of ‘joint’ or ‘common interest’ privilege, and waiver of privilege. While those arguments were closely tied to the legislative scheme for release of government information in NSW, similar issues may arise for care leavers across Australia seeking access to their records. The article concludes that, in PIAC’s view, to meet the obligations of the State to young people in care, a legal audit should be conducted for – and the results made available to – all young people leaving State care.

Schedule 2 of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), now in effect, replaces sections 70 and 79 of the Crimes Act 1914 (Cth) in regarding disclosure of confidential information by Commonwealth officers. Section 70 criminalised unauthorised disclosure by current and former ‘Commonwealth officers’, including disclosure by contractors performing services for or on behalf of the Commonwealth, a Territory or a Commonwealth public authority. 

Part 5.6 (Secrecy of information) of the amended Criminal Code, effective 30 December last year, provides ‘general secrecy offences’ for the ‘communication of’ or ‘dealing with’ various types of information (including opinions) that results in harm or likely harm. 'Commonwealth officer' is defined as including APS employees, members of the Australian Defence Force, members of the Australian Federal Police; officers or employees of a Commonwealth authority; an individual who is a contracted service provider for a Commonwealth contract; and officers or employees of a contracted service provider that is providing services for the purposes of the Commonwealth contract. 

Offences in section 122.4A apply to people who are not Commonwealth officers in relation to information they communicate or deal with which was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. 

Section 122.4A offences arise if the non-Commonwealth officer communicates or otherwise deals with information and (among other things) the information is security classified, or communication of it interferes with or prejudices enforcement of Commonwealth criminal law, or harms the health or safety of the Australian public. 

The notion of 'inherently harmful information' is problematical, as is reference to 'causing harm to Australia’s interests' or 'likely to cause harm to Australia’s interests' Section 122.3 provides for an aggravated offence, imposing additional imprisonment terms, for example if the commission involves a record marked 'for Australian eyes only'. 

Section 90.1 of the Criminal Code defines information to mean 'information of any kind, whether true or false and whether in a material form or not', including an opinion and a report of a conversation'. There is some reassurance through defences set out in section 122.5, for example that the information was already public or was communicated or otherwise dealt with

  • by the person in the course of exercising a power or performing a function as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity 
  • in the course of communicating to an integrity agency (for example the Commonwealth Ombudsman,  the Inspector General of Intelligence and Security, Australian Commission for Law Enforcement Integrity) or the Australian Information Commissioner 
  • for the purposes of communicating the information in accordance with the Public Interest Disclosure Act 2013 (Cth) or the Freedom of Information Act 1982 (Cth) 
  •  in order to report a criminal offence 
  •  for the purpose of communicating to a court or tribunal 
  •  in order to obtain or give legal advice 
  •  by a person engaging in a business reporting news who reasonably believed that communicating the information was in the public interest. 

 The penalties range from imprisonment for 2 years to 10 years for aggravated offences.