tag:theconversation.com,2011:/au/topics/secrecy-7590/articlesSecrecy – The Conversation2024-03-12T12:30:35Ztag:theconversation.com,2011:article/2215532024-03-12T12:30:35Z2024-03-12T12:30:35ZGrowing secrecy limits government accountability<figure><img src="https://images.theconversation.com/files/580737/original/file-20240308-18-lpv6zj.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5599%2C3741&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When government officials block access to information, the public suffers.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/white-collar-crime-businessman-not-wanting-his-royalty-free-image/171587971">fstop123/E+ via Getty Images</a></span></figcaption></figure><p>When I started covering crime as a reporter for small newspapers in the 1980s, I was assigned to walk to the police department lobby each morning and look through all of the previous day’s police reports, clipped to a board on the counter, containing all the details laid out for anyone to see. We were able to report to the community each day on the major events in town – to explain why people heard sirens, or saw a smoke plume.</p>
<p>By the 1990s, the clipboards were moved out of the lobby, so we asked at the counter to see them. Then we were told we had to review them with the sergeant on duty. Then we were told we couldn’t see them – we had to ask the police what they felt was newsworthy. Then we were told to submit a public records request, and wait for days or weeks – if we got them at all.</p>
<p>For decades, journalists and civic activists have lamented the increasing secrecy of government – the times, they were <a href="https://scholarlycommons.law.northwestern.edu/nulr/vol114/iss6/2/">denied government information</a>, particularly from public records requests. Reports have shown secrecy getting worse at the federal, <a href="https://scholarship.law.upenn.edu/penn_law_review/vol169/iss6/1/">state and local government</a> levels.</p>
<p>But those were usually anecdotal reports of problems. Now, there is data that brings those refusals into focus and which provides a fuller picture of government agencies hiding their work from <a href="https://vtdigger.org/2024/02/19/letters-from-the-editors-public-records-are-just-that/">the public they ostensibly serve</a>.</p>
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<h2>Openness benefits people and society</h2>
<p>The stakes, and potential ramifications for everyday people, are significant. </p>
<p>Access to government records helps people research their <a href="https://www.archives.gov/research/genealogy">family history</a>, identify <a href="https://www.fldoe.org/accountability/accountability-reporting/school-grades/">quality schools</a> for their children, monitor the cleanliness of their <a href="https://www.latimes.com/projects/california-drinking-water-contamination/">drinking water</a>, background-check their <a href="https://www.propublica.org/article/the-dig-how-to-background-your-tinder-dates-experts-edition">online dates</a>, and hold their <a href="https://cardinalnews.org/2023/03/16/the-crazy-foia-lady-used-state-law-to-dislodge-public-records-and-improve-emergency-response-times-and-finances-in-her-town/">local town officials accountable</a>. </p>
<p>And there are clear benefits: Open records are proven to lead to less <a href="https://doi.org/10.1177/1043986204271676">sex-offender recidivism</a>, fewer <a href="https://doi.org/10.1300/J369v05n04_04">food service complaints</a>, increased <a href="https://doi.org/10.1017/S0022381610000034">trust in government institutions</a> and <a href="https://doi.org/10.1111/puar.12685">reduced corruption</a>.</p>
<p>Stanford University professor James Hamilton calculated that for every dollar spent by newspapers on public records-based journalism, <a href="https://www.hup.harvard.edu/books/9780674545502">society realizes benefits worth US$287</a> in lower taxes and saved lives.</p>
<h2>Less transparency year after year</h2>
<p>My analysis of government agencies’ compliance with public records laws through 37,000 federal Freedom of Information Act, or FOIA, requests submitted through the nonprofit <a href="https://www.muckrock.com/">MuckRock.com</a> shows that a decade ago, if you asked the federal government for a public record, you might get it about half the time – which isn’t great. Today, you might get it about 12% of the time, and the trend is steadily downward.</p>
<p>The trend is similar though less uniform among state and local governments: You might receive what you ask for two-thirds of the time in Idaho or Washington state, but only <a href="https://www.documentcloud.org/documents/6182080-Sticks-and-Compliance-Cuillier">10% of the time in Alabama</a>.</p>
<p>Every year in mid-March, since 2005, national <a href="https://sunshineweek.org/">Sunshine Week</a> has promoted the right of people to acquire public records and attend public meetings. The <a href="https://brechner.org/foi/">Joseph L. Brechner Freedom of Information Project</a> at the University of Florida, where <a href="https://scholar.google.com/citations?user=Nx2xluMAAAAJ&hl=en&oi=ao">I am the director</a>, has conducted research and education about access to government information for nearly 50 years. </p>
<p>Our research indicates that U.S. government secrecy has never been so prevalent.</p>
<p>Increasing secrecy <a href="https://doi.org/10.1080/10811680.2021.1856603">isn’t tied to any particular president</a> or regime. The administration of President Barack Obama, who declared on his first day of office his intent to be the <a href="https://www.archives.gov/files/cui/documents/2009-WH-memo-on-transparency-and-open-government.pdf">most transparent president in history</a>, was <a href="https://doi.org/10.1016/j.giq.2016.05.001">slower to respond and less likely to release information</a> than George W. Bush’s administration.</p>
<p>President Donald Trump’s administration was <a href="https://doi.org/10.1016/j.giq.2019.101443">more secretive than Obama’s</a>, and transparency continues to slide under the Biden administration.</p>
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<h2>Data tells a piece of the story</h2>
<p>According to <a href="https://www.justice.gov/oip/reports-1">annual data collected</a> by the U.S. Department of Justice, federal agencies have become more secretive over the past decade:</p>
<ul>
<li><p>The prevalence of people getting what they asked for through FOIA requests declined from 38% of the time in 2010 to 17% in 2022.</p></li>
<li><p>In 2010, about 13% of the time, federal agencies would reply to FOIA requests by saying they couldn’t find records pertaining to the request. By 2022, the rate of that type of response had increased to 21%, which officials often attributed to <a href="https://www.gao.gov/products/gao-22-105040">outdated record management systems</a> incapable of keeping up with the massive amounts of electronic records, particularly emails.</p></li>
<li><p>Backlogs, where requests languish beyond the 20-day legal requirement for completion, have nearly doubled since 2010, <a href="https://www.justice.gov/oip/reports-1">from 12% of total requests to 22%</a>. The average number of days it takes to process simple requests, which require little staff time and a smaller volume of records, has doubled since 2014, from 21 days to 41 days, according to Justice Department reports.</p></li>
<li><p>While some secrecy is necessary to protect national security, the Government Accountability Office reported that the use of FOIA Exemption (b)(3), which allows federal agencies to deny records if another law makes the information secret, has <a href="https://www.gao.gov/products/gao-21-148">more than doubled</a> during the past decade, even though the number of requests only increased by a third. That includes denying people’s requests about properly withheld intelligence information. But it also includes refusing to release information on topics of great public interest, such as defective consumer products and employment discrimination cases.</p></li>
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<p>Even if agencies grant requests, they present other obstacles. A.Jay Wagner of Marquette University and I surveyed 330 people who requested records in the U.S., finding that <a href="https://doi.org/10.1016/j.giq.2023.101879">high fees to copy documents discourage people</a>, such as journalists, nonprofits and members of the public, from seeking information in the public interest. And some agencies’ <a href="https://www.spj.org/pios.asp">public information officers</a> obstruct public access to information. They limit access to the people and documents most important for government transparency and accountability.</p>
<h2>Research-based solutions</h2>
<p>Just as researchers have identified secrecy spreading through the government, recent studies offer ideas for possible cures.</p>
<p>Independent <a href="https://www.archives.gov/files/ogis/about-ogis/chief-foia-officers-council/reimagining-ogis-recommendations-03-30-2022.pdf">oversight offices with enforcement power</a>, such as in <a href="https://portal.ct.gov/FOI">Connecticut</a>, <a href="https://ohiocourtofclaims.gov/public-records/">Ohio</a>, <a href="https://www.openrecords.pa.gov/">Pennsylvania</a> and more than 80 nations, provide private citizens an alternative to litigation. Instead of having to hire a lawyer to sue the government for what you are entitled to, the independent agencies will review your case, make a determination and force the government to provide you the information.</p>
<p>The <a href="https://www.archives.gov/ogis/foia-advisory-committee">federal FOIA Advisory Committee</a>, working since 2014, has provided <a href="https://www.archives.gov/ogis/foia-advisory-committee/dashboard">52 recommendations</a> for Congress and federal agencies to improve transparency in the United States, crafted from experts and researchers. A subcommittee I co-chair for the current term is close to finishing its assessment of how well the recommendations have been implemented, with results to be released in May 2024. Our preliminary assessment indicates that there is a lot of work left to do, and that Congress and government agencies have ignored many of the recommendations.</p><img src="https://counter.theconversation.com/content/221553/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Cuillier has received funding from the John S. and James L. Knight Foundation for research in access to information, and is former president of the nonprofit National Freedom of Information Coalition. He is currently director of the Joseph L. Brechner Freedom of Information Project, a nonpartisan organization at the University of Florida dedicated to research and education in freedom of information since 1977. The Brechner FOI Project coordinates Sunshine Week to educate the public about their right to know.</span></em></p>After years of anecdotes, data provides a fuller picture of government agencies hiding their work from the public they ostensibly serve.David Cuillier, Director of the Brechner Freedom of Information Project, College of Journalism and Communications, University of FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2182342023-11-21T03:26:45Z2023-11-21T03:26:45ZAustralia’s secrecy laws include 875 offences. Reforms are welcome, but don’t go far enough for press freedom<p>In 2019, the <a href="https://www.nytimes.com/2019/06/05/world/australia/journalist-raids.html">New York Times</a> declared that “Australia may well be the world’s most secretive democracy”. </p>
<p>The Times published the piece shortly after the Australian Federal Police raided journalists from <a href="https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162">two news organisations</a>, searching for evidence of sources for stories that were embarrassing to the government. </p>
<p>Four years on, Attorney-General Mark Dreyfus today released a comprehensive <a href="https://www.ag.gov.au/crime/publications/review-secrecy-provisions">review of secrecy laws</a> that acknowledges a woefully complicated mess. </p>
<p>The government’s plan to clean it up is a good first step, but it’s just the tip of a very big iceberg.</p>
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Read more:
<a href="https://theconversation.com/journalists-must-be-protected-in-police-investigations-heres-our-five-point-plan-for-reform-193102">Journalists must be protected in police investigations. Here's our five point plan for reform</a>
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<h2>Progress on much-needed change</h2>
<p>To make its case in 2019, The Times pointed to a bewildering array of legal and political obstacles embedded in Australian law that stand in the way of the transparency considered essential to a fully functioning democracy. </p>
<p>In principle, the government seems to agree. </p>
<p>The review points to 875 secrecy offences covering everything from national security to tax laws, and a dysfunctioning system for protecting whistleblowers. </p>
<p>It also recognises the chilling effect on the ability of journalists to work with sources from inside government, and hold it to account. </p>
<p>To fix the problem, the report comes up with 11 recommendations, including reducing the number of offences to a more manageable (but still excessive) 707. </p>
<p>It establishes a set of guiding principles that will help consolidate the law and make it more consistent. </p>
<p>And it says there should be a narrower range of information defined as “secret”, with clear harm to the public interest in any breach of secrecy before a prosecution can take place. </p>
<p>It also calls for specific defences for public-interest journalism to be inserted into key secrecy laws.</p>
<p>All this is laudable, and it starts to untie the Gordian Knot of legislation that created the culture of secrecy the Times was concerned about, but it is simply not enough. </p>
<h2>A patchwork quilt of laws</h2>
<p>The enormous number of secrecy offences currently on the books points to the central problem. Whenever lawmakers have spotted a hole in the law, they’ve stuck a patch over it. </p>
<p>That is understandable, particularly in a post-September 11 world when national security has become the overriding concern of governments everywhere. </p>
<p>But it has created a confusing, inconsistent and incoherent mess that the attorney-general appears to be trying to fix with yet more patches. </p>
<p>To be fair, some of them are larger and more coherent than the current ones, but it is still insufficient to deal with the fundamental problem. The Australian government remains dangerously secretive.</p>
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Read more:
<a href="https://theconversation.com/its-time-for-the-government-to-walk-the-talk-on-media-freedom-in-australia-161342">It’s time for the government to walk the talk on media freedom in Australia</a>
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<p>Another of the recommendations is a general secrecy offence that says Commonwealth officers can’t can’t disclose anything that would be “prejudicial to the effective working of government”. </p>
<p>A general secrecy offence helps simplify things, but the threshold is worryingly sweeping and runs counter to a recommendation the Australian Law Reform Commission made back in a <a href="https://www.alrc.gov.au/publication/secrecy-laws-and-open-government-in-australia-alrc-report-112/">2010 report</a> that triggered the review in the first place. </p>
<h2>Dangerous plan for journalism</h2>
<p>The report also makes much of the need to protect public-interest journalism. </p>
<p>Again, it is laudable that the attorney-general recognises the threats to media freedom embedded in the law, and said he’s prepared to tackle them. </p>
<p>But the answers in the report are more of the same: a set of band aids, rather than a comprehensive cure.</p>
<p>Controversially, that includes a commitment to maintain a ministerial directive from the former Attorney-General Christian Porter. </p>
<p>Porter issued his directive in the wake of the 2019 raids, in an attempt to underline the government’s commitment to press freedom. The directive declared that the director of public prosecutions had to seek the attorney-general’s approval before prosecuting a journalist. </p>
<p>One of the fundamental principles of our democracy is a <a href="https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/separation-of-powers-parliament-executive-and-judiciary/#:%7E:text=In%20Australia%2C%20the%20power%20to,group%20having%20all%20the%20power.">clear separation</a> between the political and legal systems. </p>
<p>Yet the directive clearly crosses that line. </p>
<p>As we saw with the <a href="https://www.abc.net.au/news/2021-03-08/christian-porter-accuser-four-corners/13226794">allegations of sexual assault</a> levelled at Porter, and subsequent <a href="https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him">legal action</a> against the ABC, the attorney-general is as vulnerable to journalistic investigation as anyone else. Giving him the last word about whether or not to prosecute a journalist is a dangerous, if well-intentioned, step. </p>
<h2>Time for a whole new approach</h2>
<p>The report also declines to reverse the burden of proof when it comes to publishing government secrets in the public interest. </p>
<p>A number of media organisations (including the Alliance for Journalists’ Freedom that I work for) have argued there should be a <a href="https://www.aph.gov.au/DocumentStore.ashx?id=ab18c655-f6f8-4e0f-a6cb-b0b40d5a68fc&subId=668253">presumption in favour of publishing</a>, unless the investigators can show a clear harm to the public interest. </p>
<p>In other words, they should have to prove the harm in publishing rather than forcing journalists to show the value in their story. The report released today rejected that idea.</p>
<p>At least when it comes to media freedom, the Alliance for Journalists’ Freedom has a far simpler and more comprehensive solution. </p>
<p>Rather than patches, we are proposing a <a href="https://www.journalistsfreedom.com/major-projects/media-freedom-act/">Media Freedom Act</a> that would establish a set of overarching principles in law. </p>
<p>First, it would compel parliament to always consider media freedom when passing new legislation. </p>
<p>And second, the courts would be obliged to interpret existing laws, like secrecy and espionage laws, in ways that are consistent with media freedom. </p>
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Read more:
<a href="https://theconversation.com/australia-needs-a-media-freedom-act-heres-how-it-could-work-125315">Australia needs a Media Freedom Act. Here's how it could work</a>
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<p>That would include a presumption in favour of protecting a journalist’s sources and in publishing. The police would have to show why the public interest in an investigation is more important than the public interest in the story itself.</p>
<p>That law alone wouldn’t be enough to solve all the problems - there would need to be a lot of amendments to make it work effectively - but it elegantly creates a set of principles and frameworks that protect the underlying objective: to create the kind of transparency necessary for a healthy democracy, without putting national security at risk.</p><img src="https://counter.theconversation.com/content/218234/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Greste is a professor of journalism at Macquarie University, and the Executive Director of the not-for-profit advocacy group, the Alliance for Journalists' Freedom. </span></em></p>Today, the government released a review into Australia’s patchwork of a secrecy law system. The proposed changes are a step in the right direction, but there’s so much more work to do.Peter Greste, Professor of Journalism and Communications, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2102622023-08-01T12:26:50Z2023-08-01T12:26:50ZThe nuclear arms race’s legacy at home: Toxic contamination, staggering cleanup costs and a culture of government secrecy<figure><img src="https://images.theconversation.com/files/540032/original/file-20230729-63311-ud8ybo.jpg?ixlib=rb-1.1.0&rect=28%2C7%2C4716%2C3151&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Packaging excavated radioactive materials at the Hanford site in Washington state.</span> <span class="attribution"><a class="source" href="https://flic.kr/p/cpEWtw">USDOE</a></span></figcaption></figure><p>Christopher Nolan’s film “<a href="https://www.oppenheimermovie.com/">Oppenheimer</a>” has focused new attention on the legacies of the <a href="https://www.britannica.com/event/Manhattan-Project">Manhattan Project</a> – the World War II program to develop nuclear weapons. As the anniversaries of the <a href="https://www.britannica.com/event/atomic-bombings-of-Hiroshima-and-Nagasaki">bombings of Hiroshima and Nagasaki</a> on Aug. 6 and Aug. 9, 1945, approach, it’s a timely moment to look further at dilemmas wrought by the creation of the atomic bomb.</p>
<p>The Manhattan Project spawned a trinity of interconnected legacies. It initiated a <a href="https://theconversation.com/hiroshima-attack-marks-its-78th-anniversary-its-lessons-of-unnecessary-mass-destruction-could-help-guide-future-nuclear-arms-talks-210115">global arms race</a> that threatens the survival of humanity and the planet as we know it. It also led to widespread public health and environmental damage from nuclear weapons production and testing. And it generated a culture of governmental secrecy with troubling political consequences.</p>
<p><a href="https://chass.ncsu.edu/people/wjkinsel/">As a researcher</a> examining communication in science, technology, energy and environmental contexts, I’ve studied these <a href="https://rowman.com/ISBN/9780739119044/Nuclear-Legacies-Communication-Controversy-and-the-U.S.-Nuclear-Weapons-Complex">legacies of nuclear weapons production</a>. From 2000 to 2005, I also served on a <a href="http://www.hanford.gov/page.cfm/hab">citizen advisory board</a> that provides input to federal and state officials on a massive environmental cleanup program at the <a href="https://www.hanford.gov/">Hanford nuclear site</a> in Washington state that continues today.</p>
<p>Hanford is less well known than Los Alamos, New Mexico, where scientists designed the first atomic weapons, but it was also crucial to the Manhattan Project. There, an enormous, secret industrial facility produced the plutonium fuel for the <a href="https://ahf.nuclearmuseum.org/ahf/history/trinity-test-1945/">Trinity test</a> on July 16, 1945, and the bomb that incinerated Nagasaki a few weeks later. (The Hiroshima bomb was fueled by uranium produced in <a href="https://www.energy.gov/em/oak-ridge">Oak Ridge, Tennessee,</a> at another of the principal Manhattan Project sites.) </p>
<p>Later, workers at Hanford <a href="https://sgp.fas.org/othergov/doe/pu50yc.html">made most of the plutonium</a> used in the U.S. nuclear arsenal throughout the Cold War. In the process, Hanford became one of the most contaminated places on Earth. Total cleanup costs are projected to reach <a href="https://www.gao.gov/assets/gao-22-105809.pdf">up to US$640 billion</a>, and the job won’t be completed for decades, if ever.</p>
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<figcaption><span class="caption">The Hanford nuclear site in eastern Washington state is the most toxic site in the U.S.</span></figcaption>
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<h2>Victims of nuclear tests</h2>
<p>Nuclear weapons production and testing have harmed public health and the environment in multiple ways. For example, a new study released in preprint form in July 2023 while awaiting scientific peer review finds that fallout from the Trinity nuclear test <a href="https://arxiv.org/ftp/arxiv/papers/2307/2307.11040.pdf">reached 46 U.S. states and parts of Canada and Mexico</a>. </p>
<p>Dozens of families who lived near the site – many of them Hispanic or Indigenous – were unknowingly exposed to radioactive contamination. So far, they <a href="https://slate.com/culture/2023/07/oppenheimer-christopher-nolan-manhattan-project-nuclear-testing-los-alamos-trinity-victims.html">have not been included</a> in the federal program to <a href="https://www.justice.gov/civil/common/reca">compensate uranium miners and “downwinders</a>” who developed radiation-linked illnesses after exposure to later atmospheric nuclear tests. </p>
<p>On July 27, 2023, however, the U.S. Senate voted to extend the Radiation Exposure Compensation Act and <a href="https://www.currentargus.com/story/news/2023/08/01/radiation-nuclear-exposed-new-mexicans-trinity-site-compensated-us-senate-vote-oppenheimer/70484797007/">expand it to communities near the Trinity test site</a> in New Mexico. A companion bill is under consideration in the House of Representatives. </p>
<p>The <a href="https://ahf.nuclearmuseum.org/ahf/location/marshall-islands/">largest above-ground U.S. tests</a>, along with tests conducted underwater, took place in the Pacific islands. Meanwhile, the Soviet Union and other nations conducted their own testing programs. <a href="https://www.armscontrol.org/factsheets/nucleartesttally">Globally through 2017</a>, nuclear-armed nations exploded 528 weapons above ground or underwater, and an additional 1,528 underground. </p>
<p>Estimating <a href="https://doi.org/10.1007/s13280-014-0491-1">how many people have suffered health effects</a> from these tests is notoriously difficult. So is accounting for <a href="https://ahf.nuclearmuseum.org/ahf/location/marshall-islands/">disruptions to communities</a> that were displaced by these experiments.</p>
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<h2>Polluted soil and water</h2>
<p>Nuclear weapons production has also exposed many people, communities and ecosystems to radiological and toxic chemical pollution. Here, Hanford offers troubling lessons.</p>
<p>Starting in 1944, workers at the remote site in eastern Washington state irradiated uranium fuel in reactors and then dissolved it in acid to extract its plutonium content. Hanford’s nine reactors, located along the Columbia River to provide a source of cooling water, discharged water <a href="https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.cleanup&id=1001114">contaminated with radioactive and hazardous chemicals</a> into the river through <a href="https://ecology.wa.gov/waste-toxics/nuclear-waste/hanford-cleanup/hanford-overview">1987, when the last operating reactor was shut down</a>.</p>
<p>Extracting plutonium from the irradiated fuel, an activity called reprocessing, generated 56 million gallons of liquid waste laced with radioactive and chemical poisons. The wastes were stored in <a href="https://ecology.wa.gov/Waste-Toxics/Nuclear-waste/Hanford-cleanup/Tank-waste-management/Tank-monitoring-closure">underground tanks</a> designed to last 25 years, based on an assumption that a disposal solution would be developed later. </p>
<p>Seventy-eight years after the first tank was built, that solution remains elusive. A project to vitrify, or <a href="https://ecology.wa.gov/Waste-Toxics/Nuclear-waste/Hanford-cleanup/Tank-waste-management/Tank-waste-treatment">embed tank wastes in glass</a> for permanent disposal, has been <a href="https://www.nytimes.com/2023/05/31/us/nuclear-waste-cleanup.html">mired in technical, managerial and political difficulties</a>, and repeatedly threatened with cancellation. </p>
<p>Now, officials are considering mixing some radioactive sludges <a href="https://crosscut.com/environment/2022/12/hanford-considers-quicker-way-clean-radioactive-waste">with concrete grout</a> and shipping them elsewhere for disposal – or perhaps leaving them in the tanks. Critics regard those proposals as <a href="https://www.hanfordchallenge.org/inheriting-hanford/2023/3/17/should-we-grout-tank-waste-at-hanford">risky compromises</a>. Meanwhile, an <a href="https://www.oregon.gov/energy/safety-resiliency/Pages/Hanford-Tank-Waste.aspx">estimated 1 million gallons</a> of liquid waste have leaked from some tanks into the ground, threatening the Columbia River, a backbone of the Pacific Northwest’s economy and ecology.</p>
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<a href="https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Graphic showing cutaways of Hanford radioactive waste tanks." src="https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=347&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=347&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=347&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=437&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=437&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540033/original/file-20230729-24848-e523wv.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=437&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Underground waste tanks at the Hanford site, many of which are operating decades past their original design life. In total, they hold about 56 million gallons of radioactive and hazardous wastes. The Department of Energy has removed liquid wastes from all single-shell tanks.</span>
<span class="attribution"><a class="source" href="https://www.gao.gov/assets/gao-21-73.pdf">USGAO</a></span>
</figcaption>
</figure>
<p>Radioactive trash still litters parts of Hanford. Irradiated bodies of laboratory animals were <a href="https://www.seattlepi.com/local/article/Workers-uncover-carcasses-of-Hanford-test-animals-1225341.php">buried there</a>. The site houses radioactive debris ranging from medical waste to <a href="https://www.oregon.gov/energy/safety-resiliency/Pages/Naval-Nuclear-Transport.aspx">propulsion reactors from decommissioned submarines</a> and <a href="https://pdw.hanford.gov/document/E0025397?">parts of the reactor</a> that partially melted down at Three Mile Island in Pennsylvania in 1979. Advocates for a full Hanford cleanup warn that without such a commitment, the site will become a “<a href="https://www.routledge.com/The-Tainted-Desert-Environmental-and-Social-Ruin-in-the-American-West/Kuletz/p/book/9780415917711">national sacrifice zone</a>,” a place abandoned in the name of national security.</p>
<h2>A culture of secrecy</h2>
<p>As the movie “Oppenheimer” shows, government secrecy has shrouded nuclear weapons activities from their inception. Clearly, the science and technology of those weapons have dangerous potential and require careful safeguarding. But <a href="https://doi.org/10.1080/09505430120052284">as I’ve argued previously</a>, the principle of secrecy quickly expanded more broadly. Here again, Hanford provides an example.</p>
<p>Hanford’s reactor fuel was sometimes reprocessed before its most-highly radioactive isotopes had time to decay. In the 1940s and 1950s, managers <a href="https://www.nytimes.com/1986/10/24/us/northwest-plutonium-plant-had-big-radioactive-emissions-in-40-s-and-50-s.html">knowingly released toxic gases into the air</a>, contaminating farmlands and pastures downwind. Some releases supported an <a href="https://www.aps.org/publications/apsnews/199602/backpage.cfm">effort to monitor Soviet nuclear progress</a>. By tracking deliberate emissions from Hanford, scientists learned better how to spot and evaluate Soviet nuclear tests.</p>
<p>In the mid-1980s, local residents grew suspicious about an apparent excess of illnesses and deaths in their community. Initially, strict secrecy – reinforced by the region’s economic dependence on the Hanford site – made it hard for concerned citizens to get information.</p>
<p>Once the curtain of secrecy was <a href="https://doi.org/10.1080/09505430120052284">partially lifted</a> under pressure from area residents and journalists, public outrage prompted <a href="https://www.cdc.gov/nceh/radiation/hanford/background.pdf">two major health effects studies</a> that engendered fierce controversy. By the close of the decade, more than 3,500 “downwinders” had filed lawsuits related to illnesses they attributed to Hanford. A judge finally <a href="http://www.tricityherald.com/news/local/hanford/article57866938.html">dismissed the case</a> in 2016 after awarding limited compensation to a handful of plaintiffs, leaving a bitter legacy of legal disputes and personal anguish.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/Au5tjNh87Ec?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Plaintiff Trisha Pritikin and attorney Tom Foulds reflect on 25 years of litigation over illnesses that ‘downwinders’ developed as a result of exposure to Hanford’s radiation releases.</span></figcaption>
</figure>
<h2>Cautionary legacies</h2>
<p>Currently active atomic weapons facilities also have seen their share of nuclear and toxic chemical contamination. Among them, <a href="https://www.lanl.gov/">Los Alamos National Laboratory</a> – home to Oppenheimer’s original compound, and now a site for both military and civilian research – has contended with <a href="https://www.newmexicopbs.org/productions/groundwater-war/2021/02/24/forever-chemicals-found-in-los-alamos-waters/">groundwater pollution</a>, <a href="https://www.propublica.org/article/federal-watchdog-identifies-new-workplace-safety-problems-at-los-alamos-lab">workplace hazards</a> related to the toxic metal beryllium, and gaps in emergency planning and <a href="https://nmpoliticalreport.com/2023/07/17/safety-lapses-at-los-alamos-national-laboratory/">worker safety procedures</a>. </p>
<p>As Nolan’s film recounts, J. Robert Oppenheimer and many other Manhattan Project scientists had <a href="https://www.armscontrol.org/act/2021-05/features/once-more-into-breach-physicists-mobilize-again-counter-nuclear-threat">deep concerns</a> about how their work might create unprecedented dangers. Looking at the legacies of the Trinity test, I wonder whether any of them imagined the scale and scope of those outcomes.</p>
<p><em>This is an update of an <a href="https://theconversation.com/the-cold-wars-toxic-legacy-costly-dangerous-cleanups-at-atomic-bomb-production-sites-90378">article</a> originally published March 5, 2018.</em></p><img src="https://counter.theconversation.com/content/210262/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William Kinsella served with the citizen advisory board for the Hanford site cleanup from 2000-2005, representing the public interest group Hanford Watch. </span></em></p>Nuclear weapons production and testing contaminated many sites across the US and exposed people unknowingly to radiation and toxic materials. Some have gone uncompensated for decades.William J. Kinsella, Professor Emeritus of Communication, North Carolina State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2086372023-06-29T11:19:19Z2023-06-29T11:19:19ZDonald Trump has been charged under the US Espionage Act – but is this 1917 law still up to the job?<figure><img src="https://images.theconversation.com/files/534652/original/file-20230628-19-fz8urj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">alexskopje/Shutterstock</span></span></figcaption></figure><p>An audio recording of former US president Donald Trump discussing holding secret documents has been <a href="https://edition.cnn.com/2023/06/26/politics/trump-classified-documents-audio/index.html">leaked to CNN</a>. This could form part of the ongoing investigation into Trump’s alleged misuse of classified documents. He has been <a href="https://d3i6fh83elv35t.cloudfront.net/static/2023/06/trump-indictment.pdf">charged with 37</a> violations of the US Espionage Act, and pleaded not guilty.</p>
<p><a href="https://www.intelligence.gov/evolution-of-espionage/world-war-1/america-declares-war/espionage-act#:%7E:text=The%20Espionage%20Act%20broadly%20sought,with%20the%20intention%20of%20passing">The Espionage Act of 1917</a> could have a better name. Those who violate it are not necessarily spying on the US or selling its secrets to a foreign adversary. Simply mishandling secret information <a href="https://www.axios.com/2023/01/13/classified-documents-biden-doj">could be a violation</a> if done wilfully, or if that mistake was covered up.</p>
<p>It might sound ridiculous, but carrying files from one office to another inside the Pentagon – headquarters of the US Department of Defense, where I once worked – without a “secret” coversheet could be a criminal act under the Espionage Act. </p>
<p>Of course, secrecy is incredibly important for governments. Every nation faces threats in one way or another, so it is important to prepare for them with a national security apparatus: police forces, the military and intelligence agencies. For democracies, secrecy <a href="https://academic.oup.com/book/39970/chapter-abstract/340274570?redirectedFrom=fulltext">presents a paradox</a>: public servants, using taxpayer funding, are implementing the policies of elected officials in a way that the public cannot scrutinise. Western democracies, and my home country the US especially, have yet to come up with an ideal system to address this.</p>
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<figcaption><span class="caption">Daniel Ellsberg was prosecuted under the Espionage Act in the incident referred to as the Pentagon Papers.</span></figcaption>
</figure>
<p>I held graduate internships in the US Embassy in Moscow and later in the Pentagon. The work I did there is still secret. When I got my clearance, my friends asked me typical questions like: “Who really killed JFK?”</p>
<p>Unfortunately for me, most classified work is incredibly boring. In fact, most classified information can probably be found on Google, albeit out of context. The real <a href="https://warontherocks.com/2020/02/the-blessings-of-secrecy/">need for secrecy</a> lies with how governments use that information to advance their interests.</p>
<p>Think of secrecy like this: when you watch your favourite football club, you hope the coach does not email their opposite number beforehand with details of their gameplan. If they did, fans would call for their sacking, and rightly so. Even if the team wins the match, and even if the plans were accidentally sent, the coach has violated the sanctity of the club. That is the Espionage Act in a nutshell. </p>
<h2>Millions have clearance</h2>
<p>Today, <a href="https://www.washingtonpost.com/news/the-switch/wp/2014/03/24/5-1-million-americans-have-security-clearances-thats-more-than-the-entire-population-of-norway/">5.1 million people</a> in the US have a security clearance – of whom <a href="https://www.statista.com/chart/29717/top-secret-federal-government-access-united-states/#:%7E:text=As%20our%20chart%20shows%2C%20the,the%20latest%20publicly%20available%20figures.">1.25 million</a> have top-secret clearance. These professionals have access to US national strategy documents at various levels. </p>
<p>As a privilege that takes months to obtain, it is understandable that some people like to brag about their access. For example, it is believed that <a href="https://www.theguardian.com/us-news/2023/apr/14/pentagon-leaks-how-discord-gaming-platform-landed-in-the-spotlight">leaker</a> Jack Teixeira was showing off to his friends in a gaming community when he posted hundreds of documents, including highly secret information about Ukraine’s ammunition shortages and counteroffensive plans.</p>
<p>And, when I listen to the British podcast <a href="https://open.spotify.com/show/1Ysx8g1Iw42gESAtegrFaH?si=b5cb544e407c4303&nd=1">The Rest is Politics</a>, hosts Alastair Campbell (former prime minister Tony Blair’s official spokesperson) and ex-MP Rory Stewart like to give sly nods to their access and knowledge from their times in high-level politics.</p>
<p>Listening to the CNN recording, one might conclude that Trump was also showing off Pentagon plans to a staffer not cleared to see them.</p>
<p>Espionage Act violations come in many different forms and can result in a wide variety of punishments, if any at all. Teixeira, an enlisted airman, is potentially facing decades in prison for his violations, whereas <a href="https://www.npr.org/sections/thetwo-way/2015/04/23/401672264/gen-david-petraeus-will-be-sentenced-thursday-over-secret-notebooks">General David Petraeus</a> received parole and a fine for sharing highly classified information with his lover. </p>
<p>High-ranking individuals’ treatment of state secrets is <a href="https://www.lawfareblog.com/presidential-records-act-and-mar-lago-documents">legally difficult to define</a> since, as decision-makers, it is important for them to decide who sees what information, especially in a crisis. A US president can tell anyone almost anything while they are president, and it is <a href="https://www.americanbar.org/news/abanews/aba-news-archives/2022/10/fact-check-presidential-authority/">automatically declassified</a>. They cannot wait for a policy and legal review when making urgent diplomatic and military decisions. When Trump gave highly classified <a href="https://www.npr.org/2017/05/15/528511980/report-trump-gave-classified-information-to-russians-during-white-house-visit">US-Israeli intelligence to Russia</a> in 2017, it was considered legal, but a breach of security etiquette.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/courage-is-contagious-daniel-ellsbergs-decision-to-release-the-pentagon-papers-didnt-happen-in-a-vacuum-204244">'Courage is contagious': Daniel Ellsberg's decision to release the Pentagon Papers didn't happen in a vacuum</a>
</strong>
</em>
</p>
<hr>
<p>Lots of secrets should not remain under wraps. <a href="https://www.washingtonpost.com/national-security/interactive/2022/ukraine-road-to-war/">Revealing US intelligence</a> ahead of Russia’s invasion of Ukraine is likely to have saved a lot of lives. Russian plans were laid bare, and Ukraine was able to prepare accordingly.</p>
<p>But at other times, revealing secrets can <a href="https://abcnews.go.com/Blotter/trumps-disclosure-endangered-spy-inside-isis-israel-officials/story?id=47449304">threaten lives</a>. How, then, do we know elected officials and public servants are doing the right thing?</p>
<h2>Changing times</h2>
<p>In the UK, the <a href="https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life--2">Nolan Principles</a> set out seven principles for public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. In a perfect world, public officials would see these as a lodestar for their service. </p>
<p>Of course, these principles are vague and impossible to codify into law. How could a court prosecute someone for not embodying openness? By that standard, every MI6 employee should be fired immediately, but what would that do for national security? This is the <a href="https://www.tandfonline.com/doi/abs/10.1080/03071849808446221">heart of the democracy paradox</a>.</p>
<p><a href="https://warwick.ac.uk/fac/soc/pais/people/johnson/">My ongoing work</a> explores how artificial intelligence can assist in this complicated task. AI is the <a href="https://www.forbes.com/sites/bernardmarr/2022/09/23/is-ai-really-a-job-killer-these-experts-say-no/">ultimate task-killer</a> – so if oversight of US national security agencies is massively stretched by the amount of work required, AI can potentially help out. </p>
<p>For now, oversight and accountability are Sisyphean tasks in a functioning democracy – ones that may never be completed – but these are still tasks worthy of our time and attention.</p>
<p>The Espionage Act is a relic of American politics during the first world war, when there was fear of intelligence vulnerabilities in a time of global conflict. This act is <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/mcglr46&div=37&id=&page=">difficult to apply</a> in a modern context, given the greater complexity of US government work and national security, as well as the arrival of new technologies. It is time for a much-needed review.</p><img src="https://counter.theconversation.com/content/208637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chase Johnson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Espionage Act violations come in many different forms and can result in a wide variety of punishments.Chase Johnson, Doctoral Candidate, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1982632023-02-07T12:00:03Z2023-02-07T12:00:03ZData bombing and dead cats – how PR uses practices of secrecy to influence media and society<figure><img src="https://images.theconversation.com/files/507849/original/file-20230202-7117-g7bczh.jpg?ixlib=rb-1.1.0&rect=49%2C41%2C5278%2C3513&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/interviewing-business-man-on-press-conference-461773729">Microgen/Shutterstock</a></span></figcaption></figure><p>More than 100 years ago, sociologist Georg Simmel wrote that secrecy is a core part of all human relationships. The ratio of secrecy to openness in a society, he argued, can tell us much about that society. I explore this in <a href="https://www.routledge.com/Secrecy-in-Public-Relations-Mediation-and-News-Cultures-The-Shadow-World/Cronin/p/book/9781032434100">my new book</a>, examining how public relations secrecy techniques interact (and clash) with the transparency and openness of media.</p>
<p>The public relations (PR) industry is made up of professionals in public affairs, lobbying and events management, among others. Their role is to manage a client’s relationship (and reputation) with the general public, investors and regulators. Media relations is the sub-field of PR that attempts to secure positive coverage and suppress negative issues in the media. This includes newspapers and television news, but also social media.</p>
<p>In recent decades, PR in the UK has had a detrimental impact on the public’s access to objective information, skewing media reporting and attempting to conceal important issues. This is compounded by the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/779882/021919_DCMS_Cairncross_Review_.pdf">financial pressures</a> facing journalism, which are hampering investigative reporting.</p>
<p>It’s generally understood that what appears in the media has been selected and shaped by various interests, reflecting corporate goals or governmental priorities. But just as important is what we don’t see in the headlines – and how those issues are obscured. </p>
<p>In my research, I look at both sides of these secrecy operations. I interviewed PR professionals who work to influence media content and conceal certain issues. I also spoke with journalists, news editors and transparency campaigners. These groups are interested in investigating and revealing the very issues that PR hopes to obscure.</p>
<p>The PR industry is particularly adept at orchestrating this range of “shadowy practices” of secrecy, but these practices are not well-understood by the public. Everyday PR practice tends to be mundane, focusing on securing positive coverage for clients and downplaying or obscuring negative coverage. But there are a number of subtle techniques that PR practitioners use to manipulate information.</p>
<h2>Data bombing or snowing</h2>
<p>One striking technique is the practice of hiding significant information in a vast release of unimportant material. Journalists using Freedom of Information requests told me how organisations would use this technique to appear to align with principles of transparency, but in reality were hiding potentially damaging information in plain sight. </p>
<p>For example, the requested information may be released in thousands of pages of documents that journalists do not have adequate time to analyse. Important information may be couched in highly technical language that obscures key elements, or may released in a format that is not easy to electronically search (such as scanned documents).</p>
<h2>Dead catting and distraction</h2>
<p>PR can use distraction techniques, misdirecting public attention by releasing alternative, eye-catching stories to the media. One recent example was Boris Johnson’s claim that he relaxed by making model buses out of old crates. This drew much <a href="https://www.bbc.co.uk/news/av/uk-politics-48766451">amused media coverage</a> but also affected Johnson’s reputation online. </p>
<p>Search engine optimisation (SEO) is a media management technique of strategically using keywords to push certain stories to the top of search engine results. Whether it was intentional or not, the bus story had the <a href="https://www.opendemocracy.net/en/boris-johnson-google-search-results-bad-news/">opposite effect</a>, hiding a different, damaging story. Searches for “Johnson” and “bus” would previously have led users to read about the discredited claims that the NHS would receive £350 million a day if the UK left the EU, which appeared <a href="https://www.bbc.co.uk/news/uk-politics-48445430">on the sides of the Brexit buses</a>. Now, they would direct to reports about Johnson’s crafting hobby.</p>
<figure class="align-center ">
<img alt="A young woman sits at a desk in a newsroom, taking notes and looking intently at a computer." src="https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507851/original/file-20230202-7157-hi8om7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Freedom of information requests are not a guarantee that investigative journalists will be given easy-to-understand information.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/experienced-female-administrative-manager-trendy-eyewear-670210717">GaudiLab/Shutterstock</a></span>
</figcaption>
</figure>
<p>When an announcement is particularly shocking or sensational, it can be known as a “dead cat” strategy. For example, as Johnson was being investigated over the Partygate scandal, he accused Labour leader Keir Starmer of <a href="https://www.theguardian.com/politics/2022/feb/02/why-is-boris-johnson-making-false-claims-about-starmer-and-savile">failing to prosecute sex offender Jimmy Savile</a> when Starmer was head of the Crown Prosecution Service. These rumours were false, but (briefly) drew attention away from Partygate.</p>
<h2>Astroturfing</h2>
<p>PR can also create fake public opinion in order to exert influence. A media editor of a national paper explained to me in my research: </p>
<blockquote>
<p>Say a billionaire wanted to stop houses being developed next to his country retreat … He’d set up [a] “Friends of the Chiltern Hills” pressure group and basically pay some PR [firm] to run it.</p>
</blockquote>
<p>In early 2021, gambling company Ladbrokes’ owner was <a href="https://www.theguardian.com/society/2021/feb/16/betting-firm-accused-of-astroturfing-customer-lobby-group-entain-players-panel">accused of this tactic</a> after launching the Players’ Panel, an online group where customers wrote pro-betting articles. This group appeared to be a grassroots effort, but was being operated with the help of a political consultancy. Such a technique conceals both the vested interests involved and the power that they can deploy. This example shows the impact of PR, but also how journalism can push back and reveal these practices.</p>
<h2>Secrecy and society</h2>
<p>Put together, these PR secrecy efforts can impact how the public understands power dynamics and social change. By offering disconnected units of information in press releases or on client websites, PR can impede joined-up thinking – a collective understanding, putting together many bits of information into one full picture – about society.</p>
<p>The dynamic between secrecy and transparency is also shifting on a wider level. Secrecy practices are becoming more widespread and legally sanctioned. For example, the corporate sphere’s use of <a href="https://www.theguardian.com/media/2022/feb/10/former-channel-4-news-employee-traumatised-after-signing-nda">non-disclosure agreements</a> which PR practitioners themselves are often required to sign. </p>
<p>The government is also pushing for more legal powers that enhance government secrecy and restrict transparency. The <a href="https://bills.parliament.uk/bills/3154">national security bill</a> working its way through parliament may criminalise certain aspects of investigative reporting and <a href="https://www.ft.com/content/73e39ffd-b146-4fea-9500-358dcae5dd52">reform the Official Secrets Act</a>. This could further impede public access to information through the media.</p>
<p>But understanding these practices can help average media consumers and members of the public think more critically about the power dynamics and interests that may be obscured by the headlines.</p><img src="https://counter.theconversation.com/content/198263/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne M. Cronin received funding for this project from the Leverhulme Trust in the form of a Research Fellowship.</span></em></p>What’s kept out of the news is just as, if not more, important than what is included.Anne M. Cronin, Professor of Cultural Sociology, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1876082022-08-08T20:03:12Z2022-08-08T20:03:12ZTax office whistleblowing saga points to reforms needed in three vital areas<p>Last Friday’s twist in the long prosecution of <a href="https://www.theguardian.com/law/2022/aug/05/prosecutors-seek-suppression-orders-in-case-against-tax-office-whistleblower-richard-boyle">Australian Taxation Office whistleblower Richard Boyle</a> – now headed for its fifth year – brings into relief the serious flaws in our nation’s whistleblowing laws.</p>
<p>Boyle aired his concerns about oppressive debt collection by the ATO in a <a href="https://www.abc.net.au/4corners/mongrel-bunch-of-bastards/9635026">joint ABC–Fairfax media investigation</a> released in 2018. But he went public only after raising his concerns within the ATO and later with the inspector-general of taxation (IGT).</p>
<p>Various reviews confirmed his complaints under the Public Interest Disclosure Act 2013 – the whistleblower protection law for federal public servants – were reasonable. Despite dismissing his original complaint, the ATO ensured the suspect practices, which it <a href="https://www.smh.com.au/politics/federal/ato-garnishees-a-misunderstanding-inquiry-hears-20191018-p5320j.html">claimed</a> resulted from “miscommunication” and “misunderstanding”, were fixed.</p>
<p>A <a href="https://www.theguardian.com/australia-news/2020/jun/19/whistleblower-went-public-after-tax-offices-superficial-inquiry-into-concerns">Senate committee</a> labelled the ATO’s initial investigation into Boyle’s complaint as “superficial”. The IGT found merit in the matters Boyle raised but had <a href="https://www.smh.com.au/politics/federal/ato-garnishees-a-misunderstanding-inquiry-hears-20191018-p5320j.html">no jurisdiction to intervene</a> because it is not a “disclosure recipient” under the 2013 Act.</p>
<p>These events make the Boyle prosecution an important test case. Under the act, the key test of whether he has a defence against charges of making unauthorised recordings and disclosures is whether he believed “on reasonable grounds” the ATO investigation into his first disclosure was “inadequate”.</p>
<p>In Friday’s Kafkaesque twist, the ATO and Commonwealth prosecutors have <a href="https://www.theguardian.com/law/2022/aug/05/prosecutors-seek-suppression-orders-in-case-against-tax-office-whistleblower-richard-boyle">sought suppression orders</a> to prevent media reporting of Boyle’s efforts to assert that defence, in case it prejudices the trial. (Delays have already pushed the trial itself back to October 2023.) It’s the ultimate illustration of how current public interest disclosure laws can end up undermining their own primary purpose.</p>
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Read more:
<a href="https://theconversation.com/dreyfus-ends-prosecution-of-lawyer-over-alleged-leaking-about-australian-spying-in-against-timor-leste-186555">Dreyfus ends prosecution of lawyer over alleged leaking about Australian spying in against Timor-Leste</a>
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<p>Add the time, costs and negative impacts on <a href="https://www.afr.com/politics/federal/ato-whistleblower-richard-boyle-s-court-case-a-shakespearean-tragedy-20220723-p5b3zv">Boyle’s life and health</a>, the resources invested by the ATO and Commonwealth Director of Public Prosecutions, the case’s impact on the Australian government’s reputation and the messages it sends to other potential whistleblowers, and we see just how badly the federal approach to whistleblowing needs an overhaul.</p>
<p>The law needs urgent reform to ensure that:</p>
<ul>
<li><p>whistleblower protection thresholds are more workable and consistent </p></li>
<li><p>when they apply, the protections themselves are worthwhile</p></li>
<li><p>new institutions are created to enforce the laws — especially a whistleblower protection commissioner to short-circuit the legal quagmire and make sure the public interest is efficiently served.</p></li>
</ul>
<h2>Crossing the threshold</h2>
<p>The right thresholds are important because it is easy and normal for organisations to <em>not</em> see employees’ actions as covered by whistleblower protections, simply because other disputes and processes are also in train. The whistleblowing complaint might also include an employment dispute, for example, or a policy disagreement. Or other public interest factors – like national security – might need to be weighed up.</p>
<p>In fact, <a href="http://www.whistlingwhiletheywork.edu.au/wp-content/uploads/2019/08/Clean-as-a-whistle_A-five-step-guide-to-better-whistleblowing-policy_Key-findings-and-actions-WWTW2-August-2019.pdf">our research</a> shows this complexity is the norm. Our study of more than 17,000 employees across 46 large and small public and private sector organisations found that up to half (47%) of all disclosures involve a mixture of public interest issues and personal grievances. Only 20% were solely “public interest”.</p>
<p>The law needs to be clearer that the other 30%, purely personal grievances, belong in other processes. But clear and properly implemented thresholds are the key to whether most whistleblowers will get any protection at all.</p>
<p>Recently, Labor Attorney-General Mark Dreyfus intervened to stop the <a href="https://www.abc.net.au/news/2022-07-07/attorney-general-orders-charges-dropped-against-bernard-collaery/101217272">prosecution of Canberra lawyer Bernard Collaery</a> for disclosing confidential information about the Australian government’s alleged commercial bugging of the Timor-Leste cabinet room.</p>
<p>But the actual whistleblower in that case – Witness K, the spy who took his internal complaints about the bugging to Collaery – missed out, because he, too, didn’t fit the thresholds. He had already been <a href="https://theconversation.com/from-richard-boyle-and-witness-k-to-media-raids-its-time-whistleblowers-had-better-protection-121555">forced to plead guilty</a> for revealing the wrongdoing because, no matter how heinous the crime, the mere fact it involved national intelligence left him with no chance of a defence at all.</p>
<h2>Ensuring effective protections</h2>
<p>Even if the thresholds are met, what value are current protections?</p>
<p>Prime ministers Malcolm Turnbull and Scott Morrison started to lift the bar in the private sector in 2019, <a href="https://www.transparency.org/en/blog/whistleblowing-reforms-in-australia-show-the-way">amending the Corporations Act</a> to surpass the 2013 public sector whistleblowing laws in key ways.</p>
<p>But even if the public sector laws catch up, problems remain. A whistleblower can only receive compensation for the personal and professional impacts of their disclosures if those impacts were, in effect, punishment or payback motivated by awareness of a disclosure.</p>
<p>While okay for a criminal offence, that principle means any whistleblower will struggle to secure compensation if the damage flowed from simple negligence, collateral employment actions or breakdowns in organisational support. No whistleblower has yet succeeded in winning such compensation.</p>
<p>And some whistleblowers deserve justice even if the detriment was beyond anyone’s control. In 2017, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections">Parliamentary Joint Committee on Corporations and Financial Services</a> recommended Australia should establish a reward scheme that would share with the whistleblower some of the penalties imposed on wrongdoers or the money saved thanks to a disclosure, irrespective of fault. The United States and Canada are just two countries with such schemes.</p>
<h2>Creating the right institutions</h2>
<p>But who would administer such a scheme, or even take on the existing job of ensuring that legal protections for whistleblowers deliver justice, consistently across the public and private sectors? Does anyone have the job of investigating whether a whistleblower was properly treated, or of actively helping federal agencies sort out these often messy cases?</p>
<p>The short answer is no. The Commonwealth ombudsman and the Australian Securities and Investment Commission can require organisations to set up internal disclosure systems, but have little scope, in law or practice, to enforce protections.</p>
<p>The 2017 <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections">parliamentary joint committee</a> recommended a whistleblower protection authority or commissioner to fill this stark gap. Since 2018, federal crossbench MPs including <a href="https://cathymcgowan.com.au/wp-content/uploads/2020/10/National-Integrity-Commission-Bill-2018.pdf">Cathy McGowan</a>, <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6787">Helen Haines</a>, <a href="https://www.theguardian.com/australia-news/2022/jul/10/greens-to-seek-changes-to-labors-integrity-commission-legislation-to-protect-whistleblowers">Adam Bandt</a> and <a href="https://www.smh.com.au/politics/federal/our-democracy-will-be-better-for-it-empowering-whistleblowers-key-to-effective-anti-corruption-reform-20220718-p5b2c2.html">Andrew Wilkie</a> have proposed this function be included in the Albanese government’s planned <a href="https://www.theguardian.com/australia-news/2022/jul/06/labor-urged-to-bolster-federal-icac-plan-with-more-protection-for-whistleblowers">National Anti-Corruption Commission</a> reforms.</p>
<p>This makes sense because the new agency will become the most obvious place in Australia for people to safely take complaints about serious wrongdoing and be listened to, or referred to the right place, with the necessary protections applying.</p>
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Read more:
<a href="https://theconversation.com/after-a-border-dispute-and-spying-scandal-can-australia-and-timor-leste-be-good-neighbours-121553">After a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?</a>
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<p>The need for an agency to coordinate a one-stop-shop process rather than a bureaucratic “pass the parcel” has been identified by no less than four statutory or parliamentary inquiries. These include the 2016 <a href="https://www.ag.gov.au/about-us/publications/review-public-interest-disclosure-act-2013">Moss Review</a> and 2017 <a href="https://www.aph.gov.au/select_integritycommission">Senate Select Committee on a National Integrity Commission</a>, but stretches right back to a 1994 <a href="http://navigatesenatecommittees.senate.gov.au/events/select-committee-on-public-interest-whistleblowing/23">Select Committee on Whistleblowing</a> chaired by Tasmanian Liberal Senator Jocelyn Newman.</p>
<p>Just as the <a href="https://www.theguardian.com/australia-news/2021/nov/11/government-reveals-plan-to-reform-australias-whistleblowing-laws">outgoing Coalition government</a> was proposing further changes to whistleblowing laws, it is welcome news that <a href="https://www.canberratimes.com.au/story/7811624/attorney-weighs-up-whistleblower-laws/">Dreyfus</a> is keeping at least some of that reform on the agenda.</p>
<p>For Australia to retain its record of pursuing world’s best practice in recognising, managing and protecting the role of whistleblowers, it will be vital for that agenda to include all three major elements of overdue reform.</p><img src="https://counter.theconversation.com/content/187608/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>A J Brown has received funding from the Australian Research Council and all Australian governments for research on public interest whistleblowing, integrity and anti-corruption reform through partners including Australia's federal and state Ombudsmen, Australian Securities & Investments Commission, and other Commonwealth and State regulatory agencies, parliaments, anti-corruption bodies and private sector peak bodies (see most recently 'Whistling While They Work 2: Improving Managerial and Organisational Responses to Whistleblowing in the Public and Private Sectors' (<a href="https://whistlingwhiletheywork.edu.au/">https://whistlingwhiletheywork.edu.au/</a>). He was a member of the Commonwealth Ministerial Expert Panel on Whistleblowing (2017-2019) and is also a board member of Transparency International, globally and in Australia.</span></em></p>Labor is committed to changing the law for the better. Here’s what needs doingA J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1856842022-06-23T17:39:11Z2022-06-23T17:39:11ZThe Supreme Court tends to save the biggest rulings for last – a constitutional expert explains a few good reasons<figure><img src="https://images.theconversation.com/files/470599/original/file-20220623-51933-m4o7lp.jpg?ixlib=rb-1.1.0&rect=117%2C66%2C3073%2C2273&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">US Supreme Court justices arrive at the US Capitol in February 2022 </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/supreme-court-justices-arrive-for-the-state-of-the-union-address-at-picture-id1198669362?s=2048x2048">Brendan Smialowski/AFP via Getty Images </a></span></figcaption></figure><p><em>The U.S. Supreme Court <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf">struck down</a> a New York law on June 23, 2022 that had imposed strict limits on carrying a handgun in public. It was a much anticipated decision, as the court continues to issue <a href="https://www.supremecourt.gov">opinions ahead of</a> wrapping its term in <a href="https://www.newsweek.com/when-roe-v-wade-decision-supreme-court-ruling-expected-1717354">the next week or two</a>.</em> </p>
<p><em>But people were being kept waiting about when exactly the court’s ruling on Dobbs v. Jackson Women’s Health Organization, which could overturn Roe v. Wade, will be issued.</em></p>
<p><em>The court announces what days it will release rulings and is only scheduled to announce more on June 24. No one outside the court knows which major rulings will be published when – or if the court could decide to release more opinions into early July.</em></p>
<p><em>There’s a reason the court remains so secretive and why its abortion ruling appears likely to be one of the last before the court lets out for the summer. We asked constitutional scholar and <a href="https://www.researchgate.net/profile/Stefanie-Lindquist-2">Supreme Court expert Stefanie Lindquist</a> to explain what’s behind the court keeping a tight lid on its work.</em></p>
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<a href="https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows Clarence Thomas seated in an office, surrounded by young people in formal clothing." src="https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=395&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=395&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=395&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=496&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=496&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470603/original/file-20220623-51812-oc3i1k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=496&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">US Supreme Court Justice Clarence Thomas talks with his legal clerks in 2002.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/supreme-court-justice-clarence-thomas-meets-with-his-law-clerks-in-picture-id2397023?s=2048x2048">Dave Hume Kennerly/Getty Images</a></span>
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<p><strong>Does research back up this idea that the court saves the most high-profile rulings for last?</strong></p>
<p>There has been <a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3799&context=dlj">very careful research</a> done by very distinguished scholars and judges who tested the proposition that the court’s most important decisions are handed down late in the term. They measured importance based upon the extent to which the New York Times covered that case. And their research confirmed that it is absolutely true that the most highly important decisions the court renders – ones that overturn precedent, for example – aren’t announced until the end of the term. </p>
<p>One reason may be because the court is being particularly careful about the content of those decisions. And because they might have involved more negotiations over the content of the opinion itself, or involved the extra work of writing dissents and concurrences.</p>
<p><strong>Is it clear why they release these major decisions at the end of the term?</strong></p>
<p>There’s been some speculation they want to wait to issue these opinions right before they leave town. Because they’re social creatures as all of us are, some speculate that they don’t want to have to discuss these cases in their social circles. But I think it’s most likely that it is a combination of workload and because these cases are more time intensive. The justices also understand the public impact these cases can have. But, ultimately, it’s not clear exactly why they do it.</p>
<p><strong>The court is known for its secrecy. What’s the point of the court being so tight-lipped about its decisions?</strong></p>
<p>The court is an institution that has, over time, very carefully husbanded its <a href="https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/">legitimacy in the eyes of the public</a>.</p>
<p>The late Justice Antonin Scalia <a href="https://www.politico.com/news/magazine/2022/05/03/supreme-court-draft-opinion-secrecy-00029815">required his clerks</a> to sign an agreement respecting the privacy of the court’s deliberations. He told them that if they violated this secrecy, he would do everything he could to undermine their future careers. </p>
<p>The court is <a href="https://apnews.com/article/covid-us-supreme-court-health-87c198ea3de079eaf3121ffeb4985ba0">very careful</a> about ensuring that once it issues an opinion, it is the final opinion. Revealing any internal and potentially divisive dynamics related to the court’s decision-making process could undermine the force and effect of a Supreme Court decision.</p>
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<a href="https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer is seen standing outside a suburban home, next to a large poster that shows a drawing of Brett Kavanaugh's face, with the word liar above it" src="https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470607/original/file-20220623-13-dwj0oi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Police stood guard outside Supreme Court Justice Brett Kavanaugh’s home in June as protestors marched past his home.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/montgomery-county-police-officer-stands-guard-as-protesters-march-picture-id1241187931?s=2048x2048">Nathan Howard/Getty Images</a></span>
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<p><strong>Why do they not even say when a specific decision will be announced?</strong></p>
<p>I think it’s probably difficult for them to predict the exact timing of decisions, frankly. Remember, the court’s final opinions are the result of a negotiation among the individual justices. And until they’re ready, they can’t necessarily say, “This is the day we’re going to sign off,” especially at the end of the term when many of these very important decisions are announced. </p>
<p>There may be negotiations and proofreading up to the very last minute. The justices no doubt appreciate that these highly important decisions are going to end up in law school textbooks. They’re going to be carefully read by journalists. And the justices are a highly professional group of individuals. </p>
<p>So they’re concerned about every opinion they issue. But with these opinions they issue at the end of the term, that tend to be the most important decisions they render – they’re even more concerned about being precise in every sentence they write</p><img src="https://counter.theconversation.com/content/185684/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court held off at least another day before announcing a ruling on abortion rights. High profile cases take more time to finalize, but there are also political and public relations factors.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1675402021-09-14T20:52:45Z2021-09-14T20:52:45ZThe government is determined to keep National Cabinet’s work a secret. This should worry us all<p>Earlier this month, the Morrison government introduced a <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr6782%22;querytype=;rec=0">bill</a> to parliament that would amend the <a href="https://www.legislation.gov.au/Details/C2019C00055">Freedom of Information Act</a> to allow meetings of the National Cabinet to receive the same exemptions from releasing information to the public as the federal cabinet.</p>
<p>The protection would be considerable. The bill would expand the definition of “cabinet” in the act to include the National Cabinet or one of its committees, and would redefine “minister” to include state ministers. </p>
<p>The exemption would also cover not only National Cabinet meetings themselves, but a host of other bodies associated with it under the convoluted architecture for intergovernmental relations in Australia. <a href="https://www.pmc.gov.au/sites/default/files/federal-relations-architecture-diagram.pdf">This chart</a> shows just how confusing it gets.</p>
<p>The bill has been referred to a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Finance_and_Public_Administration/COAG">Senate committee</a>, which is due to report on October 14. There is a lot at stake. The bill certainly should not pass in its present form.</p>
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<a href="https://theconversation.com/the-national-cabinets-in-and-coags-out-its-a-fresh-chance-to-put-health-issues-on-the-agenda-but-there-are-risks-140165">The national cabinet's in and COAG's out. It's a fresh chance to put health issues on the agenda, but there are risks</a>
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<h2>What’s this all about?</h2>
<p>The bill is a response to the decision of the Administrative Appeals Tribunal (AAT) in a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/2719.html">case</a> brought by Senator Rex Patrick to force the government to release certain National Cabinet records. </p>
<p>In that decision, the AAT rejected the government’s claim that National Cabinet documents were exempt from release under the Freedom of Information (FOI) Act. The tribunal did so on the basis that a forum in which heads of Australian governments meet is a completely different kind of body to a cabinet. </p>
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Read more:
<a href="https://theconversation.com/nowhere-to-hide-the-significance-of-national-cabinet-not-being-a-cabinet-165671">Nowhere to hide: the significance of national cabinet not being a cabinet</a>
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<p>A cabinet comprises ministers in the same government, who are elected to the same parliament, to which they are accountable and collectively responsible. </p>
<p>By contrast, a meeting of National Cabinet comprises the leaders of nine separate jurisdictions, with cabinets, parliaments and lines of accountability of their own. </p>
<p>The government decided not to appeal the AAT decision, but has moved to amend the FOI Act instead.</p>
<p>There have been meetings of heads of Australian governments since before federation. For around 100 years, these were known as the premiers’ conference. In 1992, the name was changed to the <a href="https://en.wikipedia.org/wiki/Council_of_Australian_Governments">Council of Australian Governments</a>, or COAG. </p>
<p>COAG today has ceased to exist — <a href="https://theconversation.com/the-national-cabinets-in-and-coags-out-its-a-fresh-chance-to-put-health-issues-on-the-agenda-but-there-are-risks-140165">National Cabinet has replaced it</a>. It is, however, essentially the same body with a new name and some altered procedures to respond to the pandemic. </p>
<h2>What the current bill would do</h2>
<p>None of these bodies was set up by legislation. Over the almost 30 years of its existence, however, COAG came to be mentioned in passing in a lot of legislation dealing with federal, state and territory government relations. </p>
<p>This explains the title of the current bill: the <a href="https://www.govtmonitor.com/page.php?type=document&id=1187832">COAG Legislation Amendment Bill</a>.</p>
<p>Interestingly, the first two sections of the bill (“schedule one” and “schedule two”) amend a host of acts referring to the old name, COAG. None of the amendments, however, uses “National Cabinet” as a substitute. Instead, for example, the COAG Reform Fund would become the Federation Reform Fund and references to COAG alone would become First Ministers’ Council. </p>
<p>Against this background, the amendments in schedule three to the FOI Act — and many other acts — seem even more peculiar. </p>
<p>Here, National Cabinet is referred to by name, and the amendments define the federal cabinet to include “the committee known as the National Cabinet”. This begs the question: known by whom? If the answer lies in the terminology used by the prime minister, what other bodies might this bill ultimately cover? </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1423590802337320965"}"></div></p>
<h2>How confidential should National Cabinet be?</h2>
<p>The bill raises an important question of the extent to which decisions of National Cabinet should be available to parliaments, the media and the public.</p>
<p>The need for transparency and accessibility is pressing. Over the course of the pandemic, the National Cabinet has made a host of significant decisions about how public power will be exercised, when and by whom. Its decisions have dramatically affected the lives of all Australians for almost two years. </p>
<p>In many ways, the National Cabinet’s effectiveness relies on public cooperation and trust. The only publicly available information about its decisions, however, comes through bland press releases, discursive remarks at Prime Minister Scott Morrison’s press conferences, and the occasional leak to selected journalists. </p>
<p>The lack of public knowledge about what goes on in National Cabinet cuts across all the principles and practices of representative democracy — at the Commonwealth level and in each of the states and territories.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1420848847174082564"}"></div></p>
<p>There may well be a case for keeping some aspects of what goes on in National Cabinet confidential. The decisions are difficult and negotiations may be tense. Outcomes are sometimes unpredictable and public opinion can be febrile. It’s also in the public interest to encourage frank exchanges between political leaders and innovative thinking about solutions. </p>
<p>These considerations suggest there may be a case for the confidentiality of some aspects of the National Cabinet and preliminary working documents. </p>
<p>There is no comparable rationale, however, for withholding information about the decisions that have been made, any finalised documents on which they are based and understandings about the action expected to be taken. </p>
<p>These matters would be exempt under the bill. They should be in the public domain.</p>
<h2>Compounding the confusion</h2>
<p>By enshrining the words “National Cabinet” in legislation, the bill also entrenches the foolish and inappropriate name that was adopted without apparent deliberation as the pandemic began to unfold. </p>
<p>Perpetuating this way of describing the a forum of heads of government puts at least two of our most basic principles of government at risk. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/will-national-cabinet-change-federal-state-dynamics-145443">Will national cabinet change federal-state dynamics?</a>
</strong>
</em>
</p>
<hr>
<p>One is federalism. It is bizarre to describe the meeting of heads of Australian government as a subcommittee of the cabinet of one of its members (the federal government).</p>
<p>This could be destructive to healthy relations between federal, state and territory governments in the future. </p>
<p>The second risk is to the idea of a “cabinet” itself — and, by extension, responsible government. </p>
<p>The concept of a cabinet is hard enough for people to understand. It depends almost entirely on constitutional convention, reinforced by the logic of the relationship between government and parliament. </p>
<p>No doubt the frequency with which the term is used gives observers some general understanding of what a cabinet does. But if the understanding is muddled by applying the term “cabinet” to a body of an entirely different kind, the potential for confusion is magnified. </p>
<p>This comes with considerable loss to our democracy, and no gain.</p><img src="https://counter.theconversation.com/content/167540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cheryl Saunders has in the past received funding from the Australian Research Council.</span></em></p>In an open democracy, there is no rationale for withholding information about National Cabinet’s decisions or any documents these decisions are based on.Cheryl Saunders, Laureate Professor Emeritus, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1631252021-06-25T12:21:20Z2021-06-25T12:21:20ZWhat are tax havens? The answer explains why the G-7 effort to end them is unlikely to succeed<figure><img src="https://images.theconversation.com/files/408245/original/file-20210624-21-1phxdbe.jpg?ixlib=rb-1.1.0&rect=44%2C0%2C4848%2C3675&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Not all tax havens come with fancy resorts and sun-drenched beaches. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/caribbean-cayman-islands-george-town-luxury-resorts-royalty-free-image/723521469">Westend61/Getty Images</a></span></figcaption></figure><p>Close your eyes and imagine a tax haven. Does a Caribbean island come to mind? Sand, surf and thousands of post office boxes housing shell corporations? </p>
<p>Some tax havens, like the Cayman Islands or Bermuda, <a href="https://www.businessinsider.com/tax-havens-for-millionaires-around-the-world-2019-11#11-mauritius-5">fit that description</a>. <a href="https://cthi.taxjustice.net/en/">Many others do not</a>.</p>
<p>The key to a tax haven <a href="https://onlinebusiness.northeastern.edu/blog/tax-havens-explained/">is the taxes</a>, not the tan. Any place that allows a taxpayer – whether an individual or a company – to get a lower tax bill overseas than at home is a tax haven. Thus, depending on the taxpayer’s jurisdiction and business, many places turn out to be tax havens, even the United States.</p>
<p>A recent agreement by the Group of Seven wealthy nations <a href="https://www.reuters.com/business/g7-nations-near-historic-deal-taxing-multinationals-2021-06-05/">seeks to eliminate corporate tax havens</a> by imposing a global 15% minimum corporate tax rate. However, as a <a href="https://law.vanderbilt.edu/bio/beverly-moran">tax expert</a>, I find the effort hard to take seriously. </p>
<h2>3 things that make a tax haven a tax heaven</h2>
<p>Put simply, <a href="https://www.investopedia.com/terms/t/taxhaven.asp">tax havens</a> are jurisdictions that offer low or even no taxes in a bid to attract foreign investment.</p>
<p>From a taxpayer’s perspective, the first sign of a good tax haven is that it’s completely legal. While there may be a perception that people who use tax havens to lower their tax bills are breaking the law, that’s rarely the case. </p>
<p>A taxpayer who is comfortable doing that <a href="https://www.oecd.org/tax/crime/fighting-tax-crime-the-ten-global-principles-second-edition-006a6512-en.htm">does not need a tax haven</a>. Instead, a dishonest accountant and a less honest banker <a href="https://www.investopedia.com/ask/answers/022015/what-methods-are-used-launder-money.asp">are all that’s required</a>. </p>
<p>The second sign of a good tax haven is transparency, political stability and rule of law. If it costs more in lawyers, accountants and bribes to avoid taxes overseas than it costs to pay the tax at home, there is no point to a tax haven.</p>
<p>The third sign is privacy. For many years, Swiss banks provided the gold standard in that regard by <a href="https://home.kpmg/xx/en/home/insights/2020/10/etf-435-eu-blacklist-update.html">refusing to reveal anything about their depositors to anyone</a>. That changed in 2008, when Swiss banks <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22004A1229%2801%29">agreed to report on their depositors</a> to 43 European countries. </p>
<p>The <a href="https://www.transparency.org/en/news/panama-papers-four-years-on-anonymous-companies-and-global-wealth">loss of the complete secrecy</a> that Switzerland once provided <a href="https://www.investopedia.com/terms/s/shellcorporation.asp">has made shell companies</a> – and the countries that make them easy to set up – much more attractive. <a href="https://www.investopedia.com/terms/s/shellcorporation.asp">Shell companies</a> are basically companies without active business operations or significant assets that are stacked one on top of the other to make it harder to trace ownership. </p>
<h2>In the eye of the beholder</h2>
<p>Identifying a tax haven isn’t as simple for the governments intent on controlling them as it is for the taxpayers who seek them out. This is mainly because governments and international organizations tend to think a tax haven is somewhere other than where they live.</p>
<p>For example, the European Union <a href="https://home.kpmg/xx/en/home/insights/2021/02/etf-442-updates-to-the-eu-list-of-non-cooperative-jurisdictions.html#:%7E:text=Following%20this%20latest%20revision%2C%20the,%2C%20US%20Virgin%20Islands%2C%20Vanuatu.">produces an annual list of tax havens</a> that contains no EU member countries, even though <a href="https://cthi.taxjustice.net/en/">many</a> <a href="https://www.worlddata.info/tax-havens.php">other</a> <a href="https://www.investopedia.com/articles/wealth-management/121515/top-10-european-tax-havens.asp">lists</a> identify Ireland, Luxembourg and a host of other European countries as tax havens. </p>
<p>And while <a href="https://taxjustice.net/2020/12/15/the-corporate-tax-haven-index-a-joint-research-centre-audit/">several groups have described</a> the United States as a tax haven – <a href="https://www.forbes.com/sites/toddganos/2019/09/19/worlds-best-tax-haven-the-united-states/?sh=2da528f24049">Forbes even calls it the best in the world</a> – the U.S. government <a href="https://www.ntanet.org/NTJ/62/4/ntj-v62n04p727-53-tax-havens-international-tax.pdf">would never do so</a>, even though it fits all the key criteria, such as <a href="https://www.propublica.org/article/the-secret-irs-files-trove-of-never-before-seen-records-reveal-how-the-wealthiest-avoid-income-tax">providing legal ways to avoid virtually all taxation</a> and <a href="http://www.cnn.com/2021/06/01/politics/trump-taxes-house-democrats-biden-play-ball/index.html">strong taxpayer privacy</a>. </p>
<h2>The race to the bottom</h2>
<p>This is why the <a href="https://www.reuters.com/business/g7-finance-ministers-agree-global-minimum-tax-least-15-2021-06-05/">G-7 global corporate minimum 15% tax agreement</a> is unlikely to work.</p>
<p>Of course, I applaud the effort. Without a minimum tax, countries are stuck in a never-ending <a href="https://www.investopedia.com/terms/r/race-bottom.asp#:%7E:text=A%20race%20to%20the%20bottom%20refers%20to%20heightened%20competition%20between,reduction%20in%20product%20manufacturing%20costs.">race to the bottom</a>, whereby every time one government cuts its corporate tax rates, another soon follows with even lower rates. </p>
<p>The problem is the G-7 has to get more than 130 other countries to go along with its minimum tax rate. Many countries, including Ireland and China, <a href="https://www.nytimes.com/2021/06/05/us/politics/g7-global-minimum-tax.html#:%7E:text=Ireland%2C%20which%20has%20a%20tax,considered%20unlikely%20to%20buy%20in.">seem unlikely to give up something</a> that has brought them so much economic advantage. </p>
<p>[<em>Over 106,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p><img src="https://counter.theconversation.com/content/163125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Beverly Moran does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The G-7 wants to set a minimum global tax rate, which would make it harder for countries to act as tax havens.Beverly Moran, Professor Emerita of Law, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1548182021-02-08T19:08:22Z2021-02-08T19:08:22ZThe queen’s gambit — new evidence shows how Her Majesty wields influence on legislation<figure><img src="https://images.theconversation.com/files/382915/original/file-20210208-21-4spoz0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/AP/Frank Augstein</span></span></figcaption></figure><p>We all know the queen can’t refuse assent to a bill just because she doesn’t like it. But can she secretly get a law changed, in her personal interest, before it is even introduced into parliament? </p>
<p>The answer is yes, and we finally have <a href="https://www.theguardian.com/uk-news/2021/feb/07/revealed-queen-lobbied-for-change-in-law-to-hide-her-private-wealth">documentary evidence</a> to prove it.</p>
<h2>The queen, politics and secrecy</h2>
<p>There is a myth the queen <a href="https://www.royal.uk/queen-and-government">never involves herself</a> in political matters. In public view, all she does is act on ministerial advice, signing her name or initials where required. </p>
<p>But she has always done more than this. She exercises extensive soft power by influencing government policy and bills before they are introduced to parliament. Her power is exercised behind closed doors, and is more potent because of it.</p>
<figure class="align-center ">
<img alt="Queen Elizabeth at the opening of British Parliament." src="https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/382935/original/file-20210208-19-18i8jf0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">There is a myth the queen does not get involved in politics.</span>
<span class="attribution"><span class="source">Ben Stansall/AP/AAP</span></span>
</figcaption>
</figure>
<p>Due to secrecy laws, it is extremely hard to find documentary evidence of the queen’s exercise of influence. In the United Kingdom, government documents that “relate to” communications with the sovereign or the next two persons in line to the throne, as well as palace officials acting on their behalf, are subject to an <a href="https://www.legislation.gov.uk/ukpga/2000/36/section/37">absolute exemption</a> from release under freedom of information or by government archives. </p>
<p>This exemption lasts until at least five years after the death of the relevant member of the royal family – meaning we cannot access British government documents about the queen’s political role, including in relation to Australia.</p>
<h2>New documents discovered</h2>
<p>But The Guardian has managed to <a href="https://www.theguardian.com/uk-news/2021/feb/07/revealed-queen-lobbied-for-change-in-law-to-hide-her-private-wealth?">expose</a> a chink in this armour of secrecy. </p>
<p>In the UK’s National Archives, it discovered documents from 1973 showing the queen’s personal solicitor lobbied public servants to change a proposed law so that it would not allow companies, or the public, to learn of the queen’s shareholdings in Britain. </p>
<p>The gambit succeeded, and the draft bill was changed to suit the queen’s wishes. </p>
<p>Perhaps these documents escaped the secrecy embargo because they involved communications with a private solicitor, rather than palace officials. Or perhaps the eyes of the person vetting the file glazed over due to the boring nature of the bill and missed the reference to the queen. </p>
<p>Either way, it is a rare insight into what goes on behind the scenes.</p>
<h2>Queen’s consent</h2>
<p>The procedure involved is known as “<a href="https://www.royal.uk/queen-and-government?ch=2#bio-section-1">queen’s consent</a>”. This is different from “royal assent,” which occurs after a bill has been passed by both houses of parliament. “Queen’s consent” happens at a much earlier stage, usually well before a bill is introduced to parliament. </p>
<p>Queen’s consent is required where a bill would affect the governmental powers formally vested in the queen (such as powers to enter into treaties, declare war, dissolve parliament or grant mercy), matters directly affecting the monarchy (such as succession to the Crown, royal marriages and royal titles), and the property and revenue interests of the queen and her heir held by the Duchy of Lancaster and the Duchy of Cornwall. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/jenny-hocking-why-my-battle-for-access-to-the-palace-letters-should-matter-to-all-australians-139738">Jenny Hocking: why my battle for access to the 'Palace letters' should matter to all Australians</a>
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<p>Curiously, it also seems to extend to bills affecting the privately held property and financial interests of the queen, although there does not appear to be a clear rationale for this.</p>
<p>Any proposed bill that would affect these royal interests must be sent to the queen and her private solicitors at least two weeks before its parliamentary introduction. The solicitors then advise on the potential impact of the bill before the queen grants her consent. </p>
<p>A bill cannot proceed through parliament without such consent. This became an issue during the <a href="https://blogs.lse.ac.uk/brexit/2019/09/02/proponents-of-the-new-bill-to-stop-no-deal-face-a-significant-dilemma-over-queens-consent/">battle over Brexit</a>. </p>
<h2>Acting on ministerial advice … and influencing that advice</h2>
<p>The palace has <a href="https://www.bbc.com/news/uk-55975199">consistently stated</a> the queen acts on ministerial advice in granting or refusing queen’s consent. While this may be so, there would be no point in her paying for advice from her personal solicitors, unless she intended to exercise her soft power to persuade the government to make changes to a bill when it suited her to do so. </p>
<figure class="align-center ">
<img alt="Queen Elizabeth at Royal Ascot in 2016." src="https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/382939/original/file-20210208-23-8vw5gr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">‘Queen’s consent’ is a process that occurs before a bill is introduced to parliament.</span>
<span class="attribution"><span class="source">Alastair Grant/AP/AAP</span></span>
</figcaption>
</figure>
<p>One would imagine this would ordinarily happen through a quiet word during the queen’s weekly audience with the prime minister. No records are kept of such meetings, which remain strictly confidential. Any instructions to make changes to a proposed bill would come from the prime minister before it was introduced to parliament and could not be traced back to the queen.</p>
<p>The documents uncovered by The Guardian, however, show an alternative, more direct exercise of power. In 1973, the queen’s personal solicitor met with public servants to ask them to change a proposed companies bill to ensure the queen’s shareholdings were not exposed. </p>
<p>What is interesting is that public servants agreed to the meeting and tried to work out ways to accommodate the queen’s wishes before even seeking ministerial approval. There seemed to be an expectation that public servants should meet her wishes. Moreover, there seemed to be no shock or surprise her solicitors should intervene in this way.</p>
<p>This was because such intervention by the queen’s solicitor was not a one-off. In a <a href="https://www.theguardian.com/uk-news/2021/feb/08/queen-lobbied-for-changes-to-three-more-laws-documents-reveal?CMP=share_btn_tw.">further article</a>, The Guardian has also revealed three more instances of pressure being imposed by the queen’s solicitor or the palace to secure changes to proposed laws before they were passed. </p>
<h2>Differing understandings of the queen’s role</h2>
<p>In 2014, a British parliamentary committee <a href="https://publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/784/78406.htm">concluded</a> it had</p>
<blockquote>
<p>no evidence to suggest that legislation is ever altered as part of the consent process. </p>
</blockquote>
<p>This goes to show how effective the secrecy provisions have been in keeping the public and backbench politicians in the dark about how the constitutional system actually works. Yet ministers seem to know better. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/coronavirus-how-europes-monarchs-stepped-up-as-their-nations-faced-the-crisis-136057">Coronavirus: how Europe's monarchs stepped up as their nations faced the crisis</a>
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</em>
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<p>In 2012, then British Attorney-General, Dominic Grieve, issued a <a href="https://www.right2info.org/resources/publications/case-pdfs/united-kingdom_evans-v.-ic/uk_evans-v.-ic_attorney-general_statement-of-reasons">certificate</a> denying access to letters by Prince Charles that lobbied ministers. Grieve asserted lobbying ministers and “urging views upon them” formed part of Prince Charles’s preparation for kingship as he “would have a right (and indeed arguably a duty) to make [such representations] as Monarch”. </p>
<p>If this is so, the queen plays a far more politically active role than is publicly known in the UK or Australia.</p>
<h2>Relevance to Australia and New Zealand</h2>
<p>While the queen has little involvement anymore in Australian affairs, occasionally legislation is passed that will affect her. In such cases, the palace insists consent must first be granted, even though there is no formal parliamentary procedure, as in the UK.</p>
<p>One example was the 1986 passage of the <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22handbook%2Fhandbookparts%2Fparl_39_5_3%22">Australia Acts</a>, which were identical British and Australian Acts that cut off residual constitutional links between the UK and Australia. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/palace-letters-show-the-queen-did-not-advise-or-encourage-kerr-to-sack-whitlam-government-142376">'Palace letters' show the queen did not advise, or encourage, Kerr to sack Whitlam government</a>
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<hr>
<p><a href="https://www.legislation.gov.uk/ukpga/1986/2/section/7">One of the sections</a> provided for the queen to be advised directly by state premiers in relation to state matters. The queen objected. Her private secretary expressed the concern that she might be subject to “<a href="https://books.google.com.au/books?id=YrOFei5WRRkC&pg=PA250&lpg=PA250&dq=Twomey+outlandish+advice&source=bl&ots=DVekp0vYmd&sig=ACfU3U21hQQ2BanhBx1SMMekgFex50rYUw&hl=en&sa=X&ved=2ahUKEwj90vqhl9nuAhUzIbcAHZXPAkQQ6AEwA3oECAoQAg#v=onepage&q=Twomey%20outlandish%20advice&f=false">outlandish advice</a>”. </p>
<p>In order to secure the queen’s consent to the introduction of the bill, extensive negotiations were undertaken. Amendments were made to the form of the section, and a convention on how it would operate was agreed. Even then, the queen only gave consent after all Australian governments insisted upon it.</p>
<p>A New Zealand example concerned a proposed change in 1973 to the queen’s royal style and titles with respect to New Zealand. The government wanted the queen to assent in person to the legislation when she visited New Zealand. Her private secretary replied by telex:</p>
<blockquote>
<p>As far as I can discover The Queen has not yet been asked to give her approval to New Zealand Style and Titles Bill. It is … something that she would welcome in principle but her approval must be sought both to introduction of Bill and exact wording of proposed new Style and Title.</p>
</blockquote>
<h2>The queen’s magic</h2>
<p>In practice, the queen’s role in relation to her realms, such as Australia and New Zealand, largely now involves the appointment and removal of the governor-general and other ceremonial or symbolic acts. In performing these, she acts on ministerial advice. </p>
<p>But she maintains a degree of control through a system that requires “informal” advice be given first, with formal advice only being given once the informal advice is approved. </p>
<figure class="align-center ">
<img alt="Queen Elizabeth riding in a royal carriage." src="https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/382940/original/file-20210208-23-1416a48.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The queen’s influence is exercised subtly and out of public view.</span>
<span class="attribution"><span class="source">Andy Rain/EPA/AAP</span></span>
</figcaption>
</figure>
<p>This means the queen can always say she has not rejected the formal advice of her ministers in the realms, even though she may have rejected informal advice or at least negotiated changes to it before it is formally given. </p>
<p>As with queen’s consent, the power of influence is exercised at an early stage, in confidence, so that no formal or public act of refusal is ever seen.</p>
<p>Like the best of magicians, the queen’s magic is keeping the real action out of public view, while maintaining the appearance of doing nothing. These latest documents, like the recently released <a href="https://www.naa.gov.au/explore-collection/kerr-palace-letters">Kerr-palace letters</a>, indicate there is much behind the scenes that has not yet been revealed.</p>
<p><strong><em>This article was updated on February 9 to include further revelations of interventions on the queen’s behalf.</em></strong></p><img src="https://counter.theconversation.com/content/154818/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally undertakes consultancy work for governments. Unlike The Conversation, she supports the use of capital letters, including for 'Queen', and is not making a political statement by submitting to The Conversation's anti-capital letter style guide.</span></em></p>New documents expose a chink in the queen’s armour of secrecy.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1431442020-08-26T12:20:42Z2020-08-26T12:20:42ZForced sterilization policies in the US targeted minorities and those with disabilities – and lasted into the 21st century<figure><img src="https://images.theconversation.com/files/353240/original/file-20200817-18-b7q561.jpg?ixlib=rb-1.1.0&rect=1165%2C26%2C2383%2C2314&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An operation taking place in 1941 on South Side of Chicago.</span> <span class="attribution"><a class="source" href="https://www.rawpixel.com/image/2301130">Library of Congress</a></span></figcaption></figure><p>In August 1964, the North Carolina Eugenics Board met to decide if a 20-year-old Black woman should be sterilized. Because her name was redacted from the records, we call her Bertha. </p>
<p>She was a single mother with one child who lived at the segregated O'Berry Center for African American adults with intellectual disabilities in Goldsboro. According to the North Carolina Eugenics Board, Bertha had an IQ of 62 and exhibited “aggressive behavior and sexual promiscuity.” She had been orphaned as a child and had a limited education. Likely because of her “low IQ score,” the board determined she was not capable of rehabilitation. </p>
<p>Instead the board recommended the “protection of sterilization” for Bertha, because she was “feebleminded” and deemed unable to “assume responsibility for herself” or her child. Without her input, Bertha’s guardian signed the sterilization form.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A 1950s era pamphlet that reads: The average feebleminded parent cannot be expected to provide good heredity, a normal home, intelligent care - to say nothing of the many other things needed to bring up children successfully." src="https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=513&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=513&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=513&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=644&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=644&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353451/original/file-20200818-14-mzzs17.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=644&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A pamphlet extolling the benefit of selective sterilization published by the Human Betterment League of North Carolina, 1950.</span>
<span class="attribution"><a class="source" href="https://digital.ncdcr.gov/digital/collection/p249901coll37/id/14974/">North Carolina State Documents Collection/State Library of North Carolina</a></span>
</figcaption>
</figure>
<p>Bertha’s story is one of the 35,000 sterilization stories we are reconstructing at the <a href="https://ssjlab.weebly.com">Sterilization and Social Justice Lab</a>. Our interdisciplinary team explores the history of eugenics and sterilization in the U.S. using data and stories. So far, we have captured historical records from North Carolina, California, Iowa and Michigan. </p>
<h2>Eugenics</h2>
<p>More than <a href="https://www.huffpost.com/entry/sterilization-united-states_n_568f35f2e4b0c8beacf68713">60,000 people were sterilized in 32 states during the 20th century</a> based on the bogus “science” of eugenics, <a href="https://doi.org/10.1051/medsci/2009256-7641">a term coined by Francis Galton in 1883</a>.</p>
<p>Eugenicists applied emerging theories of biology and genetics to human breeding. White elites with strong biases about who was “fit” and “unfit” embraced eugenics, believing American society would be improved by increased breeding of Anglo Saxons and Nordics, whom they assumed had high IQs. Anyone who did not fit this mold of racial perfection, which included most immigrants, Blacks, Indigenous people, poor whites and people with disabilities, <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674445574">became targets of eugenics programs</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An old map of the United States showing the status of state eugenics laws in 1913. About half the states either have laws or are in the process of creating them." src="https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=508&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=508&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=508&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=639&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=639&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353242/original/file-20200817-14-rlngdx.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=639&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">By 1913, many states had or were on their way to having eugenic sterilization laws.</span>
<span class="attribution"><a class="source" href="https://collections.countway.harvard.edu/onview/files/original/3f02811d6a83b0f896c4eaa6794ecffc.jpg">Boston Medical Library in the Francis A. Countway Library of Medicine</a></span>
</figcaption>
</figure>
<p>Indiana passed the world’s first sterilization law in 1907. Thirty-one states followed suit. <a href="https://doi.org/10.1086/ahr.114.3.776-a">State-sanctioned sterilizations</a> reached their peak in the 1930s and 1940s but continued and, in some states, rose during the 1950s and 1960s. </p>
<p>The United States was an international leader in eugenics. Its sterilization laws actually informed Nazi Germany. The Third Reich’s 1933 “<a href="https://www.ushmm.org/learn/timeline-of-events/1933-1938/law-for-the-prevention-of-offspring-with-hereditary-diseases">Law for the Prevention of Offspring with Hereditary Diseases</a>” <a href="https://press.princeton.edu/books/hardcover/9780691172422/hitlers-american-model">was modeled on laws in Indiana and California</a>. Under this law, the <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674745780">Nazis sterilized approximately 400,000 children and adults</a>, mostly Jews and other “undesirables,” labeled “defective.”</p>
<h2>Anti-Black racism and sterilization</h2>
<p>The team at the Sterilization and Social Justice Lab has uncovered some remarkable trends in eugenic sterilization. At first, sterilization programs targeted white men, expanding by the 1920s to affect the same number of women as men. The laws used broad and ever-changing disability labels like “feeblemindedness” and “mental defective.” Over time, though, women and people of color increasingly became the target, as <a href="https://www.rutgersuniversitypress.org/fit-to-be-tied/9780813578910">eugenics amplified sexism and racism</a>.</p>
<p><iframe id="SIc36" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/SIc36/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>It is no coincidence that sterilization rates for Black women rose as desegregation got underway. Until the 1950s, schools and hospitals in the U.S. were segregated by race, but integration threatened to break down Jim Crow apartheid. <a href="https://global.oup.com/academic/product/mothers-of-massive-resistance-9780190271718?cc=us&lang=en&">The backlash involved the reassertion of white supremacist control and racial hierarchies</a> specifically through the <a href="https://www.penguinrandomhouse.com/books/155575/killing-the-black-body-by-dorothy-roberts/">control of Black reproduction and future Black lives by sterilization</a>.</p>
<p>In North Carolina, which sterilized the third highest number of people in the United States – <a href="https://journalnow.com/news/local/against-their-will-north-carolinas-sterilization-program/image_acfc2fb8-8feb-11e2-a857-0019bb30f31a.html">7,600 people from 1929 to 1973</a> – women vastly outnumbered men and Black women were <a href="https://uncpress.org/book/9780807855850/choice-and-coercion/">disproportionately sterilized</a>. Preliminary analysis shows that from 1950 to 1966, Black women were sterilized at more than three times the rate of white women and more than 12 times the rate of white men. This pattern <a href="https://www.ucpress.edu/book/9780520299948/how-all-politics-became-reproductive-politics">reflected the ideas</a> that Black women were not capable of being good parents and poverty should be managed with reproductive constraint.</p>
<p>Bertha’s sterilization was ordered by a state eugenics board, but in the 1960s and 1970s, new federal programs like Medicaid also started funding nonconsensual sterilizations. <a href="https://www.worldcat.org/title/population-control-politics-women-sterilization-and-reproductive-choice/oclc/1003747011">More than 100,000</a> <a href="https://nyupress.org/9780814758274/women-of-color-and-the-reproductive-rights-movement/">Black, Latino and Indigenous women were affected</a>.</p>
<p>Many <a href="http://www.pbs.org/independentlens/films/no-mas-bebes/">felt shame and shrouded these experiences in secrecy</a>, not even telling their closest relatives and friends. Others took to the streets and filed law suits to protest forced sterilization. The powerful documentary “<a href="https://www.pbs.org/independentlens/films/no-mas-bebes/">No Más Bebés</a>” tells the story of hundreds of Mexican American women coerced into tubal ligations at a county hospital in Los Angeles in the 1970s. One of them, who became a plaintiff in a case against the hospital, reflecting back decades later said <a href="https://www.nbcnews.com/news/latino/no-m-s-beb-s-looks-back-l-mexican-moms-n505256">her experience “makes me want to cry.”</a></p>
<h2>Forced sterilizations continue</h2>
<p>In the years between 1997 and 2010, unwanted sterilizations were performed on <a href="https://www.foxnews.com/entertainment/new-documentary-illuminates-the-forced-sterilization-of-women-in-california-prison">approximately 1,400 women in California prisons</a>. These operations were based on the same rationale of bad parenting and undesirable genes evident in North Carolina in 1964. The doctor performing the sterilizations told a reporter the <a href="https://www.npr.org/sections/thetwo-way/2013/07/09/200444613/californias-prison-sterilizations-reportedly-echoes-eugenics-era">operations were cost-saving measures</a>.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>Unfortunately, forced sterilization continues on. <a href="https://www.aljazeera.com/indepth/features/2016/07/roma-women-share-stories-forced-sterilisation-160701100731050.html">Romani women have been sterilized unwillingly in the Czech Republic</a> as recently as 2007. In northern China, Uighurs, a religious and racial minority group, have been <a href="https://www.businessinsider.com/china-forcibly-sterilizing-uighur-women-xinjiang-abortions-contraception-ap-2020-6">subjected to mass sterilization</a> and other measures of extreme population control.</p>
<p>All forced sterilization campaigns, regardless of their time or place, have one thing in common. They involve dehumanizing a particular subset of the population deemed less worthy of reproduction and family formation. They merge perceptions of disability with racism, xenophobia and sexism – resulting in the disproportionate sterilization of minority groups.</p><img src="https://counter.theconversation.com/content/143144/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandra Minna Stern receives funding from the National Institutes of Health-National Humane Genome Research Institute for portions of this research project. </span></em></p>The US has a long history of forced sterilization campaigns that were driven by the bogus ‘science’ of eugenics, racism and sexism.Alexandra Minna Stern, Professor of American Culture, History, and Women's Studies, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1294342020-01-13T13:55:27Z2020-01-13T13:55:27ZPope ends a secrecy rule for Catholic sexual abuse cases, but for victims many barriers to justice remain<figure><img src="https://images.theconversation.com/files/309346/original/file-20200109-80111-3o40sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pope Francis recently removed a secrecy rule to increase transparency for sexual abuse cases</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Vatican-Pope/62e70f8df5fb41d4950f0956d65f25b6/386/0">AP Photo/Andrew Medichini</a></span></figcaption></figure><p>Pope Francis recently <a href="https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2019/12/17/191217b.html">removed</a> one of the barriers facing sex abuse victims looking for justice – the “Rule of Pontifical Secrecy.” </p>
<p>The rule is an obligation under the church’s laws to keep sensitive information regarding the Catholic Church’s governance strictly confidential. This rule allowed church officials to withhold information in sexual abuse cases, even where there was an alleged cover-up or a failure to report allegations. The clergy could claim secrecy even from victims or legal authorities.</p>
<p>Pope Francis stated on Dec. 17, 2019, in a press release “<a href="https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2019/12/17/191217b.html">On the Topic of Confidentiality in Legal Proceedings</a>,” that his intention in ending papal secrecy was to increase <a href="https://www.npr.org/2019/12/17/788854769/pope-francis-abolishes-pontifical-secrecy-in-sex-abuse-cases-promising-transpare">transparency</a> in child abuse cases. </p>
<p>As a legal scholar, I have extensively <a href="http://www.virginialawreview.org/volumes/content/exorcising-clergy-privilege">analyzed</a> the use of evidence rules that shield confidential communications with clergy. I argue that even with the removal of the papal secrecy rule, transparency might remain illusive for abuse victims. </p>
<p>The Catholic Church has other practices it can rely on to conceal information.</p>
<h2>Papal secrecy rule</h2>
<p>The Rule of Pontifical Secrecy is part of the church’s canon laws – ordinances that regulate the church and its members. It traces its roots to the twelfth century, when the church set up the institution of <a href="http://churchandstate.org.uk/2016/04/the-horrors-of-the-church-and-its-holy-inquisition/">Inquisition</a> for punishing heresy. This quest was rooted in <a href="https://books.google.com/books?id=A7ytDwAAQBAJ&pg=PA8&lpg=PA8&dq=inquisition+pontifical+secrecy&source=bl&ots=qHitZGR2vC&sig=ACfU3U1Kc69hQ8onGoDFetpFtyBcQi32jg&hl=en&ppis=_e&sa=X&ved=2ahUKEwjw-5GtivfmAhViAp0JHVY9Bmo4ChDoATACegQICRAB#v=onepage&q=inquisition%20pontifical%20secrecy&f=false">secrecy</a> and led to the torture and execution of thousands of people throughout Europe and the Americas.</p>
<p>The rule is the church’s <a href="https://nypost.com/2019/12/17/pope-lifts-pontifical-secrecy-rule-in-sex-abuse-cases/">highest</a> level of secrecy. Historically, it applied primarily to issues of church governance. This includes drafts of canon law, papal conclaves and also internal church investigations of misconduct by clergy. </p>
<p>The rule is intended, in part, to protect the names of accusers and the accused in church-related disputes until there had been some clear finding of wrongdoing. The penalty for disclosing information can include <a href="http://www.vatican.va/resources/resources_crimen-sollicitationis-1962_en.html">excommunication</a>. </p>
<h2>Rule hindered justice</h2>
<p>In application, though, the rule of secrecy has hindered efforts by child abuse victims to seek justice against the church. </p>
<p>It became a way for church officials to avoid <a href="https://cruxnow.com/february-abuse-summit/2019/02/no-secret-that-pontifical-secrecy-is-taking-a-beating-at-popes-summit/">reporting</a> allegations of abuse to law officials. Officials also relied on the rule to <a href="https://www.ncronline.org/news/accountability/abolishing-pontifical-secret-abuse-cases-ground-breaking-say-canon-lawyers">refuse</a> to cooperate with legal authorities investigating allegations of wrongdoing. </p>
<p>Critics also feared the rule hindered <a href="https://www.theguardian.com/world/2019/dec/17/pope-francis-ends-pontifical-secrecy-rule-child-sexual-abuse-catholic-church">victims</a> from coming forward. For those who did come forward, the rule made it more difficult to obtain information pertinent to any subsequent litigation.</p>
<p>When the pope issued the instruction to remove the rule from the canon law in December, his decision lifted only the veil of pontifical secrecy from three categories of cases: sexual abuse of minors or vulnerable persons; failure to report or efforts to cover up such abuse; and possession of pornography by a cleric. </p>
<p>All other matters previously covered by this rule, such as diplomatic correspondences and personal issues, remain subject to papal secrecy.</p>
<h2>Other confidential communication</h2>
<p>However, Catholic sexual abuse victims face other barriers to seeking justice. </p>
<p>Victims often seek <a href="https://www.sltrib.com/religion/2019/11/21/catholic-boards-hailed/">information</a> regarding what church officials knew about particular instances of abuse, including whether other victims made similar accusations against a particular cleric or details of any internal church investigation. Lifting the rule of pontifical secrecy does not clarify church official’s obligations to comply with such requests. </p>
<p>Further, as my <a href="http://www.virginialawreview.org/volumes/content/exorcising-clergy-privilege">research</a> shows, the pontifical secret is only one avenue for shielding information about wrongdoing in the church. </p>
<p>The <a href="https://digitalcommons.law.lsu.edu/lalrev/vol78/iss1/12/">seal</a> of confession prevents priests from sharing information received during confession at risk of excommunication. This has included information that victims of abuse have sought to build their cases. </p>
<p>The privilege has also been asserted as a <a href="https://www.americamagazine.org/2019/07/01/mandatory-reporting-seal-confession-state-laws">workaround</a> to mandatory reporting obligations for clergy. </p>
<p>Additionally, <a href="http://www.virginialawreview.org/volumes/content/exorcising-clergy-privilege">every state</a> in the United States recognizes clergy privilege – a legal rule that shields clergy from forced disclosure of confidential spiritual communication. This protection applies not only to confessions but also to conversations in which clergy provide solace, comfort or aid. </p>
<p>In practice, clergy privilege means priests can refuse to testify, at any stage of litigation, regarding protected conversations. Yet in these conversations, abusers may well admit to harming children. </p>
<h2>Inconsistent privilege assertions</h2>
<p>Religious institutions have been inconsistent in their assertion of the clergy privilege. </p>
<p>In some instances, clerics willingly forgo the privilege. For example, in the 2014 Tennessee state case, <a href="http://www.tncourts.gov/sites/default/files/cartmelldeonlamontopn.pdf">State v. Cartmell</a>, a chaplain testified about a conversation in which the defendant disclosed details about a murder. The defendant asserted the communication was privileged, but the chaplain maintained he could testify. </p>
<p>The chaplain acknowledged he was with the defendant in his religious capacity but framed the conversations not as being spiritual. He claimed it was a means to assist the defendant “make peace” with what happened. </p>
<p>In other cases, clergy have asserted the privilege to <a href="https://www.washingtonpost.com/archive/local/1988/08/28/suit-to-test-sanctity-of-confessional/d2f301b3-9af5-426e-be0e-9bc6d710fd27/">shield</a> confidential communications in alleged child abuse cases. In <a href="http://masscases.com/cases/sjc/388/388mass128.html">Commonwealth v. Cane</a>, a 1983 decision from the Supreme Court of Massachusetts, a Roman Catholic priest withheld evidence in a murder and child abuse case. The defendant waived any privilege over his conversation with the priest. Nonetheless, the priest refused to testify. </p>
<p>Despite the pope’s efforts, the transparency the Catholic Church seeks will take far more chipping away at the remaining obstacles to justice.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/129434/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christine P. Bartholomew does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Pope Francis recently removed a rule known as Pontifical Secrecy, which allowed clergy and church officials to withhold information regarding sexual abuse. Will it make the church truly transparent?Christine P. Bartholomew, Associate Professor of Law, University at BuffaloLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1213202019-08-07T20:02:23Z2019-08-07T20:02:23ZAustralian metadata laws put confidential interviews at risk, with no protections for research<figure><img src="https://images.theconversation.com/files/287137/original/file-20190807-84215-1dg4o9a.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4968%2C3274&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Interviews from a range of sensitive research topics may be at risk. These include immigration, crime and corruption.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Each year, academics and students make countless applications for research ethics approval, based on the promise of confidentiality to their interview subjects. Interviewees sometimes offer academic researchers information that might be self-incriminating or might jeopardise the rights and liberties of others they’re discussing.</p>
<p>But Australia’s <a href="https://www.legislation.gov.au/Details/C2019C00010">metadata retention laws</a> can lead to the identification and even incrimination of the very people whose identities academic researchers have promised to keep secret for their work.</p>
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Read more:
<a href="https://theconversation.com/think-your-metadata-is-only-visible-to-national-security-agencies-think-again-121253">Think your metadata is only visible to national security agencies? Think again</a>
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<p>Imagine, for instance, a criminologist conducting a project examining white collar crime in banking and financial services. The academic’s confidential interviews with former company directors and executives might elicit specific and revealing answers. It could lead to potential redundancy or even jail time, depending on their vulnerability and culpability.</p>
<p>Under the metadata laws, government agencies make hundreds of thousands of <a href="https://www.homeaffairs.gov.au/nat-security/files/telecommunications-interception-access-act-1979-annual-report-17-18.pdf">requests</a> to Australian telcos each year for their customers’ phone and internet communications metadata. </p>
<p>For the criminologist, this means relevant agencies can ask telcos to access his or her metadata in the form of call records and computer IP addresses. This means they can identify whether a person of interest has been in communication with the researcher and is the possible source of incriminating material. Other investigations and legal steps might then follow.</p>
<p>Interviews about a range of sensitive research topics may be at risk. These include immigration, crime and corruption, national security, policing, politics, international relations and policy.</p>
<p>The impact of metadata laws on journalists and their sources have been <a href="https://www.sydneycriminallawyers.com.au/blog/police-using-journalists-metadata-to-hunt-down-whistleblowers/">well documented</a>. But we can only wonder how many people will agree to participate in academic research if they are made fully aware of the real potential of being identified by investigators.</p>
<h2>Who has access?</h2>
<p>Metadata – or telecommunications data – is information held by telcos about communication from a digital device. This includes the phone numbers of people who call each other and how long they talk, as well as details on text messages (the address from which a message is sent and the time it’s sent). </p>
<p>Telcos are not allowed to disclose the “<a href="https://www.legislation.gov.au/Details/C2019C00010">contents or substance of a communication</a>”. But the metadata forms a key part of the investigative trail.</p>
<p>Since 2015, telecommunications and internet providers have been required to store metadata from phone calls and other digital communications for at least two years under the <a href="https://www.legislation.gov.au/Details/C2019C00010">Telecommunications (Interception and Access) Act 1979</a>.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/seven-ways-the-government-can-make-australians-safer-without-compromising-online-privacy-111091">Seven ways the government can make Australians safer – without compromising online privacy</a>
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<p>Intelligence, policing and corruption bodies, the Department of Home Affairs, ASIC and the ACCC are agencies that are entitled to request this data. And <a href="https://www.abc.net.au/news/2018-10-19/authority-creep-has-more-agencies-accessing-your-metadata/10398348">some suggest</a> many more government agencies at all three levels of government might be requesting metadata from telcos.</p>
<h2>The weak protections offered to journalists won’t help researchers</h2>
<p>A 2006 Australian Law Reform Commission inquiry into evidence laws <a href="https://www.alrc.gov.au/publications/15.%20Privilege%3A%20Other%20Privileges/privileges-protecting-other-confidential-communications">raised the prospect</a> of medical and social researchers being entitled to a confidentiality privilege for their research communications, but it was not implemented.</p>
<p>The only confidential relationship acknowledged by the metadata retention laws is the journalist-source relationship. This is where “journalist information warrants” must meet a certain threshold, reviewed in secret by an anonymous public interest advocate.</p>
<p>Should this protection be extended to researchers?</p>
<p>My colleagues and I made a recent <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress/Submissions">submission</a> to the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress/Terms_of_Reference">Parliamentary Joint Committee on Intelligence and Security</a> examining the metadata retention laws. It focused on the fact journalism educators and journalism students might not qualify for even the minimal protections offered to professional journalists.</p>
<p>When agencies seek a warrant for information, the law <a href="https://www.legislation.gov.au/Details/C2019C00010">requires</a>: </p>
<blockquote>
<p>the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source.</p>
</blockquote>
<p>But the opaque scheme has been <a href="https://pressfreedom.org.au/journalist-information-warrants-163a68a20137">described</a> by the journalism union as mere “cosmetic dressing” because the whole review process takes place in secret, by anonymous individuals, without the knowledge or legal representation of journalists or their sources. Even the journalists who have been subjected to the process remain unaware their data has been targeted.</p>
<p>Extending this protection to academic researchers in its current form would offer minimal comfort to confidential interviewees.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/police-want-to-read-encrypted-messages-but-they-already-have-significant-power-to-access-our-data-82891">Police want to read encrypted messages, but they already have significant power to access our data</a>
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<h2>No warrant needed</h2>
<p>Even encryption is no longer watertight as protective a strategy against agencies accessing metadata. <a href="https://www.legislation.gov.au/Details/C2018A00148">Amendments</a> last year introduced three <a href="https://www.claytonutz.com/knowledge/2019/march/cracking-the-code-understanding-the-implications-of-australias-new-encryption-laws-on-your-business-and-supply-chains">levels of request</a> agencies might make to telcos to de-encrypt data, starting with a simple voluntary “technical assistance request”. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australians-accept-government-surveillance-for-now-110789">Australians accept government surveillance, for now</a>
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</p>
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<p>There is no indication of the number of times agencies might have accessed researchers’ metadata because such detailed records are not published by the attorney-general or the ombudsman. </p>
<p>But the Commonwealth attorney-general finally <a href="https://www.homeaffairs.gov.au/nat-security/files/telecommunications-interception-access-act-1979-annual-report-17-18.pdf">revealed</a> last month that during 2017-2018, 58 historical data authorisations were made under warrants issued to the AFP to get information from journalists.</p>
<p>For academic researchers, no such warrants are required. So, metadata requests about confidential interviewees would sit among the 300,000-plus <a href="https://www.homeaffairs.gov.au/nat-security/files/telecommunications-interception-access-act-1979-annual-report-17-18.pdf">requests made annually</a> by agencies. </p>
<p>The issue is at least on the radar of some university research ethics committees. They take special precautions when approving confidential interviews in some circumstances, such as requiring researchers advise interviewees that absolute confidentiality might not be guaranteed.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-surveillance-is-wrecking-journalist-source-confidentiality-43228">How surveillance is wrecking journalist-source confidentiality</a>
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<p>But there should be greater awareness of potential dangers that await their “confidential” interviewees who might have agreed to be interviewed without even contemplating the consequences.</p><img src="https://counter.theconversation.com/content/121320/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Pearson has received research funding from the Australian Research Council, the Commonwealth Government, and several other organisations and agencies. He has delivered media law training to several media organisations as a consultant.</span></em></p>Australia’s metadata laws offer weak protection to journalists, but they don’t offer any to academics conducting confidential interviews.Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/903782018-03-05T11:45:23Z2018-03-05T11:45:23ZThe Cold War’s toxic legacy: Costly, dangerous cleanups at atomic bomb production sites<figure><img src="https://images.theconversation.com/files/208704/original/file-20180302-65529-blvpr6.jpg?ixlib=rb-1.1.0&rect=24%2C291%2C2020%2C1152&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nuclear reactors line the bank of the Columbia River at the Hanford site in 1960.</span> <span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/d/d3/Hanford_N_Reactor_adjusted.jpg">USDOE</a></span></figcaption></figure><p>Seventy-five years ago, in March 1943, a mysterious construction project began at a remote location in eastern Washington state. Over the next two years some 50,000 workers built an industrial site occupying half the area of Rhode Island, costing over US$230 million – equivalent to $3.1 billion today. Few of those workers, and virtually no one in the surrounding community, knew the facility’s purpose. </p>
<p>The site was called Hanford, named for a small town whose residents were displaced to make way for the project. Its mission became clear at the end of World War II. Hanford had produced plutonium for the first nuclear test in the New Mexico desert in July 1945, and for the bomb that incinerated Nagasaki on Aug. 9. </p>
<p><a href="https://chass.ncsu.edu/people/wjkinsel/">As a researcher</a> in environmental and energy communication, I’ve studied the <a href="https://rowman.com/ISBN/9780739119044/Nuclear-Legacies-Communication-Controversy-and-the-U.S.-Nuclear-Weapons-Complex">legacies of nuclear weapons production</a>. From 2000 to 2005, I served with a <a href="http://www.hanford.gov/page.cfm/hab">citizen advisory board</a> that provides input to state and federal officials on a massive environmental cleanup program at Hanford, now one of the most contaminated sites in the world. </p>
<p>As U.S. leaders <a href="https://media.defense.gov/2018/Feb/02/2001872877/-1/-1/1/EXECUTIVE-SUMMARY.PDF">consider producing new nuclear weapons</a>, I believe they should study lessons from Hanford carefully. Hanford provides one of the more dramatic examples of problems that unfolded – and persist today – at nuclear sites where production and secrecy took priority over safety and environmental protection. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=508&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=508&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=508&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=638&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=638&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208697/original/file-20180302-65519-rkmkeg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=638&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.hanford.gov/page.cfm/ProjectsFacilities#HM">www.hanford.gov</a></span>
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</figure>
<h2>A nationwide nuclear network</h2>
<p>Hanford was one of three large facilities anchoring the <a href="https://www.atomicheritage.org/history">Manhattan Project</a> – the crash program to build an atomic bomb. It was part of a larger complex linking facilities across the nation. A plant at Oak Ridge, Tennessee, enriched uranium and operated a prototype nuclear reactor. Los Alamos Laboratory in New Mexico assembled a cadre of world-class scientists to design and build the weapons, using materials produced at the other sites. Smaller facilities across the nation made other contributions. </p>
<p>As World War II phased into the Cold War and the U.S.-Soviet arms race escalated, new sites were added in Ohio, South Carolina, Florida, Texas, Colorado and elsewhere. Secrecy masked much of the work at these sites until well into the 1980s, with serious consequences for public health, worker safety and the environment. Nuclear and chemical wastes caused severe contamination at Hanford and the other sites, and dealing with them has proved to be difficult and costly. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208700/original/file-20180302-65544-lfz718.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Major sites in the Cold War nuclear weapons production complex.</span>
<span class="attribution"><a class="source" href="https://www.acq.osd.mil/ncbdp/nm/nmhb/chapters/chapter_4.htm">USDOD</a></span>
</figcaption>
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<h2>Contamination at Hanford</h2>
<p>When the Soviet Union disintegrated in 1991, the United States had mass-produced some 70,000 nuclear bombs and warheads. <a href="https://fas.org/sgp/othergov/doe/pu50yc.html">Hanford made most of the plutonium used in those weapons</a>. Workers irradiated uranium fuel in reactors, and then dissolved it in acid to extract the plutonium produced. This method, called reprocessing, generated 56 million gallons of liquid wastes laced with radioactive and chemical poisons. </p>
<p>Hanford’s nine reactors were <a href="http://www.toxipedia.org/display/wanmec/Radioactive+Contamination+of+the+Columbia+River">located along the Columbia River</a> to provide a source of cooling water, and discharged radiation into the river throughout their lifetimes. </p>
<p>Fuel was sometimes reprocessed before its most highly radioactive isotopes had time to decay. Managers knowingly released toxic gases into the air, contaminating farmlands and grazing areas downwind. Some releases supported an <a href="https://www.aps.org/publications/apsnews/199602/backpage.cfm">effort to monitor Soviet nuclear progress</a>. By tracking intentional emissions from Hanford, scientists learned better how to spot Soviet nuclear tests. </p>
<p>Liquid wastes from reprocessing were stored in <a href="https://ecology.wa.gov/Waste-Toxics/Nuclear-waste/Hanford-cleanup/Tank-waste-management/Tank-monitoring-closure">underground tanks</a> designed to last 25 years, assuming that a permanent disposal solution would be developed later. The U.S. Department of Energy, which now operates the weapons complex and its cleanup program, is still working on that solution.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208703/original/file-20180302-65507-1m8ksbm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Workers prepare to remove the core from a waste tank at Hanford in 2010.</span>
<span class="attribution"><a class="source" href="https://www.hanford.gov/c.cfm/photogallery/img.cfm/c107holecutting/full/A%20cold%20winter%20afternoon%20as%20workers%20prepare%20to%20remove%20the%20core%20from%20tank%20C-107.jpg">Hanford Site</a></span>
</figcaption>
</figure>
<p>Meanwhile, at least a million gallons of tank wastes have <a href="http://hanfordlearning.org/hanford-101/cleanup/tri-party-agreement/department-of-energy/">leaked into the ground</a>. This material, and the prospect of more to follow, threatens the Columbia River, a backbone of the Pacific Northwest’s economy and ecology. <a href="https://www.reviewjournal.com/news/nation-and-world/clock-ticks-as-nuclear-waste-storage-tanks-leak-at-hanford/">Some groundwater is already contaminated</a>. Estimates of when that plume will reach the river are uncertain. </p>
<p>Radioactive trash still litters parts of Hanford. Irradiated bodies of laboratory animals were <a href="https://www.seattlepi.com/local/article/Workers-uncover-carcasses-of-Hanford-test-animals-1225341.php">buried there</a>. The site houses radioactive debris ranging from medical wastes to <a href="http://www.oregon.gov/energy/facilities-safety/safety/Pages/Naval-Nuclear-Transport.aspx">propulsion reactors from decommissioned submarines</a> and <a href="http://pdw.hanford.gov/arpir/pdf.cfm?accession=E0025397">parts of the reactor</a> that melted down at Three Mile Island. Some nuclear decision makers have called Hanford a “national sacrifice zone.” </p>
<h2>A struggle for accountability</h2>
<p>In the mid-1980s, local residents grew suspicious about an apparent excess of illnesses and deaths in their community. Initially, strict secrecy – reinforced by the region’s economic dependence on the Hanford site – made it hard for concerned citizens to get information. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=477&fit=crop&dpr=1 600w, https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=477&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=477&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=599&fit=crop&dpr=1 754w, https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=599&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/208707/original/file-20180302-65529-33fcaj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=599&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Cold War-era billboard at Hanford reinforcing strict secrecy rules.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Hanford_billboard.jpg">USDOE</a></span>
</figcaption>
</figure>
<p>Once the curtain of secrecy was <a href="https://doi.org/10.1080/09505430120052284">partially lifted</a> under pressure from area residents and journalists, public outrage prompted <a href="https://www.cdc.gov/nceh/radiation/hanford/background.pdf">two major health effects studies</a> that engendered fierce controversy. By the close of the decade, more than 3,500 “downwinders” had filed lawsuits related to illnesses they attributed to Hanford. A judge finally <a href="http://www.tricityherald.com/news/local/hanford/article57866938.html">dismissed the case</a> in 2016 after limited compensation to a handful of plaintiffs, leaving a bitter legacy of legal disputes and personal anguish. </p>
<p>Cleanup operations at Hanford began in 1989, but have been hamstrung by <a href="https://www.seattletimes.com/seattle-news/will-hanford-ever-be-cleaned-up/">daunting technical challenges and management errors</a>. The <a href="http://www.hanford.gov/files.cfm/2016_LCR_Fact_Sheet_Final.pdf">current estimate</a> assumes work will continue through 2060 and cost over $100 billion, beyond the approximately $50 billion already spent. </p>
<p>A key challenge is building a facility to extract the most toxic materials from the tank wastes and enclose them in glass logs to be sent elsewhere for permanent burial. <a href="http://www.tri-cityherald.com/news/local/hanford/article159590304.html">Projected costs</a> have ballooned to over $17 billion, and the estimated completion date is now 2036. And with the proposed <a href="http://thehill.com/policy/energy-environment/341369-trump-triggers-fight-over-yucca-waste-site">Yucca Mountain</a> nuclear waste repository in Nevada mired in controversy, there is still no final resting place for these materials, which will be dangerous for tens of thousands of years. </p>
<p>Cleanup has progressed in other areas. The reactors have been shut down and enclosed in <a href="https://energy.gov/em/articles/hanford-workers-enter-reactor-prepare-cocooning">concrete and steel “cocoons”</a> until their radioactivity decays further. Hanford’s “<a href="http://b-reactor.org/">B Reactor</a>,” the world’s first large-scale nuclear reactor, is now part of the <a href="https://energy.gov/management/office-management/operational-management/history/manhattan-project/manhattan-project-0">Manhattan Project National Historic Park</a>. </p>
<p>Buffer lands around the outer parts of the site, presumably clean enough for the purpose, have been converted to <a href="https://www.fws.gov/refuge/Hanford_Reach/maps.html">wildlife refuge areas</a>. And in 2015, the Laser Interferometer Gravitational Observatory (LIGO), with a station located at Hanford, <a href="https://theconversation.com/what-happens-when-ligo-texts-you-to-say-its-detected-one-of-einsteins-predicted-gravitational-waves-53259">detected the first gravitational waves</a> predicted by Albert Einstein. LIGO scientists chose Hanford for its remote location and minimal interference from human activity. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/8rlVHEY7BF0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Inside Hanford’s B Reactor.</span></figcaption>
</figure>
<h2>Lessons to remember</h2>
<p>The Department of Energy now considers <a href="https://energy.gov/em/cleanup-sites">many of its former nuclear weapons production sites</a> to be fully cleaned up. Some remaining sites are involved in maintaining the current nuclear arsenal and could play roles producing new weapons. Others, like Hanford, are “legacy” sites where cleanup is the sole mission. </p>
<p>There is more oversight of the nuclear weapons complex today, but serious concerns remain. Notably, inspectors have found problems at <a href="http://www.lanl.gov/">Los Alamos National Laboratory</a> dating back to 2011 related to handling of <a href="https://www.propublica.org/article/federal-watchdog-identifies-new-workplace-safety-problems-at-los-alamos-lab">beryllium</a>, a toxic material that can cause cancer and lung disease.</p>
<p>These issues at Hanford and other nuclear sites are reminders that nuclear weapons production is a risky process – and that in Washington state and elsewhere, legacies of the Cold War are still very much with us.</p><img src="https://counter.theconversation.com/content/90378/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William J. Kinsella served from 2000 to 2005 on the Hanford Advisory Board, an organization of stakeholders that provides recommendations and advice to the U.S. Department of Energy, the U.S Environmental Protection Agency, and the Washington Department of Ecology on selected major policy issues related to the cleanup of the Hanford site.</span></em></p>During the Cold War, the US built nuclear weapons at a network of secretive sites across the nation. Some are still heavily polluted and threaten public health today.William J. Kinsella, Professor Emeritus of Communication, North Carolina State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/728772017-03-15T23:39:25Z2017-03-15T23:39:25ZAustralian charities are well regulated, but changes are needed to cut red tape<figure><img src="https://images.theconversation.com/files/160623/original/image-20170313-9631-1pi3ve3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Charities that fundraise across Australia – even if just through a website – are burdened with complying with red tape.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Charities exist to benefit the public and do vital work across Australia. They therefore receive support from both governments and the community. </p>
<p>This leads to an expectation that they will be subject to some form of regulation to ensure they are transparent and accountable, and operating for charitable purposes.</p>
<p>Because of the high regard the community has for charities, there is often widespread anger when charities do the wrong thing. Effective regulation is therefore needed to preserve and enhance the community’s trust and confidence in charities.</p>
<p>Ireland is a good example of what happens when effective charity regulation is lacking. A <a href="http://blog.cfg.org.uk/index.php/why-the-role-of-the-charity-regulator-matters-a-look-to-ireland/">scandal</a> in 2014, which involved a major disability charity using donations to pay senior staff exorbitant salaries, prompted the fast-tracked establishment of an Irish charities regulator.</p>
<h2>Who is Australia’s charity regulator?</h2>
<p>The <a href="http://www.acnc.gov.au/">Australian Charities and Not-for-profits Commission</a> (ACNC) is the independent national regulator of charities. It was established in 2012.</p>
<p>Unlike in Ireland, the Australian regulator didn’t come about as a reaction to a scandal. Instead, it was a proactive reform that aimed to help prevent such crises in the first place. Its creation reflected a growing view globally that having an independent and dedicated charities regulator represents best practice.</p>
<p>The ACNC registers organisations as charities and helps them understand and meet their obligations. It also maintains a free and searchable <a href="https://www.acnc.gov.au/ACNC/FindCharity/QuickSearch/ACNC/OnlineProcessors/Online_register/Search_the_Register.aspx?noleft=1">public register</a>. This contains a <a href="http://www.acnc.gov.au/ACNC/FindCharity/About_Register/ACNC/Reg/Info_Reg.aspx">wide range</a> of information about registered charities. Anybody can access financial information and governing documents, as well as a record of any enforcement action the ACNC may have taken against a charity.</p>
<p>Charities registered with the ACNC have several <a href="https://www.acnc.gov.au/ACNC/Manage/Ongoing_Obs/ACNC/Edu/On_obgtns.aspx?hkey=f93bd0b9-82fe-4e58-84e1-02d57a20c8eb">ongoing obligations</a>, such as <a href="https://www.acnc.gov.au/ACNC/Manage/Reporting/ACNC/Report/ReportInformation.aspx?hkey=1c68676b-8be6-4fe8-965f-0ba204bbc793">annual reporting</a> and meeting <a href="https://www.acnc.gov.au/ACNC/Manage/Governance/ACNC/Edu/GovStds_overview.aspx?hkey=456b1d22-8869-4ad0-a0cd-48607244216e">governance standards</a>.</p>
<p>People can contact the ACNC when they have concerns about charities. It also receives referrals from other government agencies. In addition, it identifies systemic risks, such as charities being used to <a href="http://www.acnc.gov.au/ACNC/Manage/Protect/ProtectingTF/ACNC/Edu/ProtectTF.aspx">finance terrorism</a>.</p>
<p>The ACNC examines all concerns raised with it and can investigate charities further and take <a href="http://www.acnc.gov.au/ACNC/About_ACNC/Regulatory_app/ComplianceDecisions/ACNC/Regulatory/ComplianceDecisions.aspx">compliance action</a> if needed. It released its most recent <a href="http://www.acnc.gov.au/ACNC/Publications/Reports/ComplianceRpt2015-2016.aspx">compliance report</a> this week: this examined the ACNC’s compliance activities in 2015-16 and outlined its compliance focus for the year ahead.</p>
<p>Various compliance actions <a href="http://acnc.gov.au/compliancereport">have been undertaken</a>. So far, 28 charities have had their charitable status revoked.</p>
<h2>Further reform is needed</h2>
<p>Federally, the ACNC regulatory framework is broadly working well. However, one issue that needs to be tackled is the limitation placed on what the ACNC can say about its compliance decisions.</p>
<p>Under the <a href="https://www.acnc.gov.au/ACNC/About_ACNC/ACNC_leg/ACNC/Legal/ACNC_leg.aspx?hkey=b3d40228-24a5-41d2-8873-cb577d565182">existing legislation</a>, the ACNC may revoke an organisation’s charitable status or take some other form of compliance action – but secrecy provisions mean it can’t explain why it did so. </p>
<p>The ACNC’s secrecy provisions were based on those used by the Australian Taxation Office to protect taxpayers’ privacy. But what may work in the case of taxpayer information doesn’t transfer well to charity regulation.</p>
<p>Australians’ confidence in charities will be strengthened if they know why the ACNC takes compliance action. The ACNC should be able to confirm or deny whether it is investigating a charity, and to provide a statement of reasons for decisions resulting from investigations.</p>
<p>The ACNC legislation must be reviewed within five years of its commencement; this review is due in 2017. This will provide an opportunity to examine the secrecy provisions and other issues, and hopefully pave the way for the necessary amendments to be made.</p>
<p>More broadly, charity regulation in Australia is complicated because of the federation. Two reforms could greatly simplify matters for charities in this regard.</p>
<p>First, more than 40% of charities are <a href="https://www.consumer.vic.gov.au/clubs-and-not-for-profits/incorporated-associations/become-an-incorporated-association/what-is-an-incorporated-association">incorporated associations</a>. These are organisational structures that create a separate legal identity for the charity, and are regulated by the states and territories. </p>
<p>As has happened in <a href="https://probonoaustralia.com.au/news/2016/05/new-law-cuts-red-tape-sa-charities/">South Australia</a>, other states and territories should no longer require charities that are incorporated associations to report separately to them as well as to the ACNC. State and territory regulators will still have access to the reports they need from the ACNC, but the duplicated reporting by charities will end.</p>
<p>Second, <a href="https://www.nfplaw.org.au/fundraising">fundraising regulation</a> is a <a href="https://probonoaustralia.com.au/news/2016/09/regressive-fundraising-regulations-time-change/">major irritation</a> for Australian charities. Some form of regulation is necessary, but it is very complicated and varies considerably across every state and territory. Charities that fundraise across Australia – even if just through a website – are burdened with complying with this red tape.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/160379/original/image-20170311-19226-1613ofg.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Note: The NT has no specific fundraising regulation.</span>
<span class="attribution"><span class="source">Community Council for Australia</span></span>
</figcaption>
</figure>
<p>A <a href="https://www.justiceconnect.org.au/fixfundraising">coalition of organisations</a> is calling for reform to this situation. It wants fundraising to be regulated consistently across Australia under the <a href="http://consumerlaw.gov.au/the-australian-consumer-law/legislation/">Australian Consumer Law</a>, with the inconsistent state and territory laws repealed.</p>
<p>A <a href="http://consumerlaw.gov.au/review-of-the-australian-consumer-law/about-the-review/">review</a> of the Australian Consumer Law is being finalised. This review is an opportunity to tackle a complicated and outdated fundraising regulation framework, and to ensure donors are protected but charities aren’t burdened with unnecessary red tape.</p>
<hr>
<p><em>You can catch up on other pieces in our Charities in Australia series <a href="https://theconversation.com/au/topics/charities-in-australia-36414">here</a>.</em></p><img src="https://counter.theconversation.com/content/72877/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Krystian Seibert was an adviser to a former Australian Assistant Treasurer, and in this role he was responsible for overseeing the establishment of the Australian Charities and Not-for-profits Commission and the development and passage of the Charities Act 2013 (Cth). He is currently a Member of the Australian Charities and Not-for-profits Commission's 'Sector Advisory Group' which is a consultative body comprising representatives from a broad range of charities. He works for Philanthropy Australia, which is a member of the #fixfundraising coalition seeking to reform fundraising regulation in Australia.</span></em></p>Australians’ confidence in charities would be strengthened if any compliance action taken against them was made public.Krystian Seibert, Adjunct Industry Fellow, Centre for Social Impact, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/656202016-09-21T23:00:24Z2016-09-21T23:00:24ZFeds: We can read all your email, and you’ll never know<figure><img src="https://images.theconversation.com/files/138697/original/image-20160921-21691-wksiq5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The feds say they can secretly read all your email.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-423265222/stock-photo-fbi-agent-working-on-his-computer-in-office.html">FBI agent with computer via shutterstock.com</a></span></figcaption></figure><p>Fear of hackers reading private emails in cloud-based systems like Microsoft Outlook, Gmail or Yahoo has recently sent <a href="http://www.nytimes.com/2016/09/16/us/politics/email-hacking-colin-powell-congress.html">regular people and public officials scrambling</a> to delete entire accounts full of messages dating back years. What we don’t expect is our own government to hack our email – but it’s happening. Federal court cases <a href="http://clarkcunningham.org/Apple/Index.html">going on right now</a> are revealing that federal officials can read all your email without your knowledge.</p>
<p>As a scholar and lawyer who started researching and writing about the history and meaning of the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> to the Constitution <a href="http://clarkcunningham.org/Cunningham-MeaningsOfSearch.html">more than 30 years ago</a>, I immediately saw how the <a href="http://clarkcunningham.org/Apple/Index.html">FBI versus Apple controversy</a> earlier this year was <a href="http://clarkcunningham.org/Apple/AppleAndTheAmericanRevolution-DraftAsOf7Sep.pdf">bringing the founders’ fight for liberty into the 21st century</a>. My study of that legal battle caused me to dig into the federal government’s actual practices for getting email from cloud accounts and cellphones, causing me to worry that our basic liberties are threatened.</p>
<h2>A new type of government search</h2>
<p>The federal government is getting access to the contents of entire email accounts by using an ancient procedure – the search warrant – with a new, sinister twist: secret court proceedings. </p>
<p>The earliest search warrants had a very limited purpose – authorizing entry to private premises to find and recover stolen goods. During the era of the American Revolution, <a href="http://clarkcunningham.org/Apple/AppleAndTheAmericanRevolution-DraftAsOf7Sep.pdf">British authorities abused this power</a> to conduct dragnet searches of colonial homes and to seize people’s private papers looking for evidence of political resistance.</p>
<p>To prevent the new federal government from engaging in that sort of tyranny, special controls over search warrants were written into the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> to the Constitution. But these constitutional provisions are failing to protect our personal documents if they are stored in the cloud or on our smartphones.</p>
<p>Fortunately, the government’s efforts are finally being made public, thanks to legal battles taken up by Apple, Microsoft and other major companies. But the feds are fighting back, using even more subversive legal tactics.</p>
<h2>Searching in secret</h2>
<p>To get these warrants in the first place, the feds are using the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-121">Electronic Communications Privacy Act</a>, passed in 1986 – long before widespread use of cloud-based email and smartphones. That law allows the government to use a warrant to get electronic communications <a href="https://www.law.cornell.edu/uscode/text/18/2703">from the company providing the service</a> – rather than the true owner of the email account, the person who uses it.</p>
<p>And the government <a href="http://harvardlpr.com/wp-content/uploads/2013/06/Gagged-Sealed-and-Delivered.pdf">then usually asks that the warrant be “sealed,”</a> which means it won’t appear in public court records and will be hidden from you. Even worse, the law lets the government get what is called a “gag order,” a court ruling <a href="http://clarkcunningham.org/Apple/Cases/GagOrders/GagOrderDecisions.html">preventing the company from telling you</a> it got a warrant for your email. </p>
<p>You might never know that the government has been reading all of your email – or you might find out when you get charged with a crime based on your messages. </p>
<h2>Microsoft steps up</h2>
<p><a href="http://www.nytimes.com/news-event/apple-fbi-case">Much was written</a> about <a href="http://www.npr.org/series/469827708/the-apple-fbi-debate-over-encryption">Apple’s successful fight</a> earlier this year to prevent the FBI from forcing the company to <a href="https://theconversation.com/us/topics/apple-vs-fbi-25241">break the iPhone’s security system</a>. </p>
<p>But relatively little notice has come to a similar <a href="http://clarkcunningham.org/Apple/Cases/MicrosoftWDWash.html">Microsoft effort on behalf of customers</a> that began in April 2016. The <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvUS-WDWash-1stAmendedComplaint.pdf">company’s suit</a> argued that search warrants delivered to Microsoft for customers’ emails are violating regular people’s constitutional rights. (It also argued that being gagged violates Microsoft’s own First Amendment rights.)</p>
<p>Microsoft’s suit, filed in Seattle, says that over the course of 20 months in 2015 and 2016, it received <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvUS-WDWash-1stAmendedComplaint.pdf">more than 3,000 gag orders – and that more than two-thirds of the gag orders were effectively permanent</a>, because they did not include end dates. Court documents supporting Microsoft <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftWDWash-Amicus-Cloud.html">describe thousands more gag orders</a> issued against Google, Yahoo, Twitter and other companies. Remarkably, <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvUS%28WDWash%29-FormerOfficialsAmicus.pdf">three former chief federal prosecutors</a>, who collectively had authority for the Seattle region for every year from 1989 to 2009, and the retired head of the FBI’s Seattle office have also joined forces to support Microsoft’s position.</p>
<h2>The feds get everything</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=333&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=333&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=333&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=418&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=418&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=418&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This search warrant clearly spells out who the government thinks controls email accounts – the provider, not the user.</span>
<span class="attribution"><span class="source">U.S. District Court for the Southern District of New York</span></span>
</figcaption>
</figure>
<p>It’s very difficult to get a copy of one of these search warrants, thanks to orders sealing files and gagging companies. But in <a href="http://clarkcunningham.org/Apple/Cases/Microsoft2dCir.html">another Microsoft lawsuit</a> against the government <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/USvMicrosoft-2dCir-warrant.pdf">a redacted warrant</a> was made part of the court record. It shows how the government asks for – and receives – the power to look at all of a person’s email.</p>
<p>On the first page of the warrant, the cloud-based email account is clearly treated as “premises” controlled by Microsoft, not by the email account’s owner:</p>
<blockquote>
<p>“An application by a federal law enforcement officer or an attorney for the government requests the search of the following … property located in the Western District of Washington, the premises known and described as the email account [REDACTED]@MSN.COM, which is controlled by Microsoft Corporation.”</p>
</blockquote>
<p>The <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> requires that a search warrant must “particularly describe the things to be seized” and there must be “probable cause” based on sworn testimony that those particular things are evidence of a crime. But this warrant orders Microsoft to turn over “the contents of <strong>all</strong> e-mails stored in the account, including copies of e-mails sent from the account.” From the day the account was opened to the date of the warrant, everything must be handed over to the feds.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=267&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=267&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=267&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=336&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=336&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=336&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The warrant orders Microsoft to turn over every email in an account – including every sent message.</span>
<span class="attribution"><span class="source">U.S. District Court for the Southern District of New York</span></span>
</figcaption>
</figure>
<h2>Reading all of it</h2>
<p>In warrants like this, the government is deliberately not limiting itself to the constitutionally required “particular description” of the messages it’s looking for. To get away with this, it tells judges that incriminating emails can be hard to find – maybe even hidden with misleading names, dates and file attachments – so their computer forensic experts need access to the whole data base to work their magic. </p>
<p>If the government were serious about obeying the Constitution, when it asks for an entire email account, at least it would write into the warrant <a href="http://clarkcunningham.org/Apple/Cases/Waxse/HotmailCase.html">limits on its forensic analysis</a> so only emails that are evidence of a crime could be viewed. But this Microsoft warrant says an unspecified “variety of techniques may be employed to search the seized emails,” including “email by email review.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=165&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=165&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=165&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=208&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=208&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=208&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The right to read every email.</span>
<span class="attribution"><span class="source">U.S. District Court for the Southern District of New York</span></span>
</figcaption>
</figure>
<p>As I explain in a forthcoming paper, there is good reason to suspect this type of warrant is <a href="http://clarkcunningham.org/Apple/AppleAndTheAmericanRevolution-DraftAsOf7Sep.pdf">the government’s usual approach</a>, not an exception.</p>
<p>Former federal computer-crimes prosecutor <a href="https://www.law.georgetown.edu/faculty/ohm-paul.cfm">Paul Ohm</a> says <a href="http://www.virginialawreview.org/volumes/content/massive-hard-drives-general-warrants-and-power-magistrate-judges">almost every federal computer search warrant</a> lacks the required particularity. Another former prosecutor, <a href="https://www.law.gwu.edu/orin-s-kerr">Orin Kerr</a>, who <a href="https://isites.harvard.edu/fs/docs/icb.topic1020905.files/SearchandSeizureDigital.pdf#page=49">wrote the first edition</a> of the <a href="http://clarkcunningham.org/Apple/DOJ-Manual-Ch2.pdf">federal manual on searching computers</a>, agrees: “<a href="http://ssrn.com/abstract=2628586">Everything can be seized. Everything can be searched</a>.” Even some federal judges are calling attention to the problem, <a href="http://clarkcunningham.org/Apple/WhatsWrongWithCellPhoneSearchWarrants.html">putting into print their objections to signing such warrants</a> – but unfortunately most <a href="http://clarkcunningham.org/Apple/Cases/Facciola/Facciola-RedactedMac.Com-DistrictJudge.pdf">judges seem all too willing to go along</a>.</p>
<h2>What happens next</h2>
<p>If Microsoft wins, then citizens will have the chance to see these search warrants and challenge the ways they violate the Constitution. But the government has come up with a clever – and sinister – argument for throwing the case out of court before it even gets started. </p>
<p>The government has asked the judge in the case to rule that Microsoft has <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/Microsoft%20v%20DOJ%20Motion%20to%20Dismiss.pdf">no legal right</a> to raise the Constitutional rights of its customers. Anticipating this move, the American Civil Liberties Union <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvDOJ-ACLUProposedIntervention.pdf">asked to join the lawsuit</a>, saying it uses Outlook and wants notice if Microsoft were served with a warrant for its email. </p>
<p>The government’s response? The ACLU has no right to sue because it <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/US%20v%20Microsoft%20Docket%2033-DOJBriefInOppositionToACLUIntervention.pdf">can’t prove that there has been or will be a search warrant</a> for its email. Of course the point of the lawsuit is to protect citizens who can’t prove they are subject to a search warrant because of the secrecy of the whole process. The government’s position is that no one in America has the legal right to challenge the way prosecutors are using this law.</p>
<h2>Far from the only risk</h2>
<p>The government is taking a similar approch to smartphone data. </p>
<p>For example, in the case of <a href="http://clarkcunningham.org/Apple/Cases/USvRavelo.html">U.S. v. Ravelo</a>, pending in Newark, New Jersey, the government used a search warrant to download the entire contents of a lawyer’s personal cellphone – more than 90,000 items <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-LtrFromFilterProsecutor-19Feb2016.pdf">including text messages, emails, contact lists and photos</a>. When the phone’s owner <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-29Apr2016.pdf">complained to a judge</a>, the <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-GovtResponse-23May2016.pdf">government argued</a> it could look at everything (except for privileged lawyer-client communications) before the court even issued a ruling. </p>
<p>The federal prosecutor for New Jersey, <a href="https://www.justice.gov/usao-nj/meet-us-attorney">Paul Fishman</a>, has gone even farther, telling the judge that once the government has cloned the cellphone it gets to keep the copies it has of all 90,000 items <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-GovtSupplementalResponse-12July2016.pdf">even if the judge rules that the cellphone search violated</a> the Constitution.</p>
<p>Where does this all leave us now? The judge in <a href="http://clarkcunningham.org/Apple/Cases/USvRavelo.html">Ravelo</a> is expected to issue a preliminary ruling on the feds’ arguments sometime in October. The government will be filing a final brief on its motion to dismiss <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftWDWash.html">the Microsoft case</a> September 23. All Americans should be watching carefully to what happens next in these cases – the government may be already watching you without your knowledge.</p><img src="https://counter.theconversation.com/content/65620/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We don’t expect our own government to hack our email – but it’s happening, in secret, and if current court cases go badly, we may never know how often.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/641132016-08-21T20:04:07Z2016-08-21T20:04:07ZOffshore detention: Australians have a right to know what is done in their name<figure><img src="https://images.theconversation.com/files/134704/original/image-20160819-6906-1u7t8tv.jpg?ixlib=rb-1.1.0&rect=0%2C496%2C2385%2C1445&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Governments directly and indirectly control who is allowed to tell the refugees’ stories of how they are treated in offshore detention.</span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>How did one of the world’s <a href="http://www.businessinsider.com.au/we-are-the-most-successful-multicultural-society-in-the-world-now-come-together-to-fight-radicalism-says-turnbull-2015-10">most-successful multicultural countries</a> made up of refugees and immigrants end up <a href="https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention">harming children</a> who came to us seeking protection and help? One of the answers to this question is secrecy. </p>
<p>Successive Australian governments, both Labor and Coalition, have <a href="https://theconversation.com/nauru-abuse-reports-should-mark-an-opportunity-for-compassion-not-more-dehumanisation-63826">dehumanised refugees</a> and kept Australians in the dark about what really goes on in the offshore detention centres on Nauru and Manus Island. </p>
<p>The cornerstone of the strategy is to <a href="https://theconversation.com/boats-secrecy-leads-to-bad-policy-without-democratic-accountability-43324">limit public access</a> to information. The policy started by the Rudd Labor government in 2013 has been put into overdrive by the Abbott and Turnbull Coalition governments.</p>
<p>There are three pillars to the secrecy strategy: </p>
<ul>
<li><p>outsourcing the centres to other sovereign nations;</p></li>
<li><p>outsourcing the centres’ operations to private contractors; and </p></li>
<li><p><a href="https://www.theguardian.com/australia-news/2015/jul/01/detention-centre-staff-speak-out-in-defiance-of-new-asylum-secrecy-laws">imposing a gag</a> on current and former detention staff through the Border Force Act.</p></li>
</ul>
<h2>Outsourcing detention</h2>
<p>Australian journalists have found it very difficult, bordering on practically impossible, to obtain visas to visit Nauru. Applying for a media visa for Nauru comes with an <a href="https://www.theguardian.com/world/2014/jan/09/nauru-visa-to-cost-8000">A$8,000 fee</a> – which is non-refundable even if the application is rejected. </p>
<p>The only journalists to be granted visas in the last two years <a href="http://www.theaustralian.com.au/news/inquirer/dateline-nauru-sifting-truth-from-spin/news-story/22ac3fac71e0df65fa0cab09b6ff2270">filed stories</a> that did not properly <a href="http://aca.nine.com.au/article/9132298/an-exclusive-look-inside-nauru">investigate</a> or challenge the Nauruan and Australian governments’ versions of the situation for refugees.</p>
<p>This means the two governments directly and indirectly control who is allowed onto the island to tell the refugees’ stories of how they are treated. This leads to speculation that serves no-one – not the refugees nor the Australian government nor the public.</p>
<p>The second issue with outsourcing refugee processing to another country is that neither Nauru nor Papua New Guinea has Freedom of Information (FOI) laws. This means an important journalistic tool is missing when it comes to seeking information. </p>
<p>This, combined with the <a href="http://www.nordicom.gu.se/sites/default/files/kapitel-pdf/279_lidberg.pdf">poor FOI history</a> of Australia’s Department of Immigration and Border Protection (and its predecessor), which have repeatedly <a href="https://www.oaic.gov.au/freedom-of-information/foi-decisions/foi-omi-reports/processing-of-non-routine-foi-requests-by-the-department-of-immigration-and-citizenship">blocked and delayed</a> requests, makes obtaining raw and unspun information about offshore refugee processing a time-consuming and frustrating task.</p>
<h2>Outsourcing to private contractors</h2>
<p>Wilson Security <a href="http://www.smh.com.au/national/protesters-to-blockade-wilson-security-car-parks-over-detention-centre-20160626-gpsgg0.html">is contracted</a> to provide security in the offshore centres. </p>
<p>The <a href="https://www.oaic.gov.au/freedom-of-information/foi-resources/foi-agency-resources/documents-held-by-government-contractors-agency-obligations-under-the-freedom-of-information-act-1982">2010 amendments</a> to the federal FOI Act significantly strengthened the requirement on government agencies to obtain information from a private contractor when asked to do so. </p>
<p>However, contracting out adds another layer of complexity to using FOI effectively. The practical consequences are longer processing times, delays and the increased possibility of the contractor claiming the information can’t be released due to commercial-in-confidence issues.</p>
<h2>The Border Force Act disclosure offence</h2>
<p>In July 2015, the <a href="https://www.theguardian.com/australia-news/2015/jul/01/detention-centre-staff-speak-out-in-defiance-of-new-asylum-secrecy-laws">Australian Border Force Act</a> came into force. Its controversial disclosure offence section extended the questionable Australian tradition of <a href="http://www.alrc.gov.au/publications/3-overview-current-secrecy-laws/general-criminal-offences">limiting public servants’ right to public speech</a> and participation in public debate. </p>
<p>The section effectively stops current and former staff, including those from volunteer organisations such as Save the Children, speaking out about conditions in refugee detention centres. </p>
<p>It is nigh-on impossible to see how this gag section can be in the public interest. But it is easy to see how it is in the government’s political interest.</p>
<h2>What are the consequences?</h2>
<p>The consequence of the fortress of secrecy built on these three pillars is that Australians don’t know what is being done in their name on Nauru and Manus Island. </p>
<p>It also means the refugees are dehumanised. Suffering children and families become numbers instead of human beings. </p>
<p>Every one of the nearly <a href="https://www.theguardian.com/australia-news/2016/aug/17/revealed-peter-duttons-extensive-briefings-about-risks-and-harm-to-children-on-nauru?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today+AUS+v1+-+AUS+morning+mail+callout&utm_term=186466&subid=14712616&CMP=ema_632">1,300 refugees</a> currently on Nauru and Manus has heartbreaking and crucial stories to tell. If Australians were allowed to hear and see those stories, the centres would have been closed a long time ago.</p>
<p>If offshore detention is to continue, the Australian government should:</p>
<ul>
<li><p>stop outsourcing to private contractors. The Department of Immigration and Border Protection should run the centres to allow for proper accountability;</p></li>
<li><p>be completely transparent about the centres’ operations. Redact personal information, but publish as much as possible, including incident reports;</p></li>
<li><p>facilitate access to the centres for journalists and members of the public; and</p></li>
<li><p>scrap the gag section on detention centre staff, current and former, in the Border Force Act.</p></li>
</ul>
<p>We don’t need a Senate inquiry or royal commission to figure out what needs to be done. More than enough evidence is available thanks to the <a href="https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention">Nauru files</a>, former detention centre staff sharing their experiences, and the Australian Human Rights Commission’s <a href="https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">report</a> on children in immigration detention. The government must do the decent and right thing by the refugees and the Australian public.</p><img src="https://counter.theconversation.com/content/64113/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Johan Lidberg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Successive Australian governments have dehumanised refugees and kept Australians in the dark about what really goes on in the offshore detention centres on Nauru and Manus Island.Johan Lidberg, Senior Lecturer, School of Media, Film and Journalism, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/556012016-03-02T11:22:03Z2016-03-02T11:22:03ZBritain’s freedom of information laws are ‘working well’ – but who for?<figure><img src="https://images.theconversation.com/files/113423/original/image-20160301-31020-dy8t5s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">ariadna de raadt</span></span></figcaption></figure><p>The government has <a href="http://www.bbc.co.uk/news/uk-35693236">announced its decision</a> not to amend existing Freedom of Information (FOI) legislation by introducing fees for requests. This news has likely come as a surprise, albeit a pleasant one, to many supporters of the act, particularly given the seeming <a href="http://www.bbc.co.uk/news/uk-politics-35550967">anti-FOI bias</a> on the part of those who made up the FOI commission. </p>
<p>But, given the existing challenges faced by those who make use of FOI as part of their research, it is difficult to agree with the Cabinet Office minister, Matt Hancock, and his assertion that the act is “<a href="http://www.theguardian.com/politics/2016/mar/01/freedom-information-act-need-not-be-radically-altered-review-finds">working well</a>”. A <a href="http://www.buzzfeed.com/alanwhite/the-government-is-stopping-us-writing-about-spies-and-the-ro#.nmmB8AMVZ">recent article</a> illustrated a number of almost Kafka-esque challenges experienced by users of <a href="https://ico.org.uk/for-organisations/guide-to-freedom-of-information/what-is-the-foi-act/">the Freedom of Information Act</a> – and my own recent experiences point similarly to a process that is not working well.</p>
<p>On July 22 2015, a supplement to the 2014 review into material held by the Home Office concerning historic allegations of child abuse, conducted by Peter Wanless and Richard Whittam QC, was <a href="https://www.gov.uk/government/publications/peter-wanless-and-richard-whittam-qc-supplementary-report">released into the public domain</a>. The attached correspondence between Whittam and Wanless and both the Cabinet Office and Home Office offers some pretty eye-opening admissions concerning departmental record-keeping practices. </p>
<p>In particular, the existence of “unregistered” collections of files and papers including, in the case of the Cabinet Office, a “store of assorted and unstructured papers”, known as “the Cabinet Secretary’s miscellaneous papers”. </p>
<p>This particular collection was closed in 2007, yet had accumulated over “several decades”. Papers from the series, dating from 1936-1951, began to find their way to the National Archives, <a href="https://www.nationalarchives.gov.uk/news/introduction-may-2013.htm">quietly and without fanfare</a>, in May 2013. But it was only last summer that the significance of this collection of material as “<a href="http://www.independent.co.uk/news/uk/politics/officials-to-open-whitehall-papers-which-could-shed-light-on-child-abuse-10411931.html">too hot to handle</a>” began to dawn on officials – and civil servants have been given until 2020 to assess whether they will ever see the light of day.</p>
<h2>Off-the-record</h2>
<p>We don’t need to be out-and-out conspiracy theorists to consider such collections a matter of concern. The fact that such material has been deliberately kept off the official record-keeping radar is nothing short of scandalous. </p>
<p>Perhaps officials are able to offer a reasonable justification for the maintenance of unregistered papers, but it is easy to suggest that the main purpose is to ensure their continued secrecy, effectively keeping them outside the legal framework set down by the <a href="http://www.nationalarchives.gov.uk/information-management/legislation/public-records-act/">Public Records Act</a> and, more recently, the Freedom of Information Act. The existence of such unsearchable and unknowable collections running parallel to properly documented departmental file material, does little to instil confidence in the public about the integrity of the official historical record that enters the public domain. </p>
<p>Yet public acknowledgement of a hitherto hidden file series is, sadly, not as surprising as it should be – in October 2013, the Foreign and Commonwealth Office “found” a <a href="http://www.theguardian.com/politics/2013/oct/18/foreign-office-historic-files-secret-archive">huge tranche of papers</a> at its Hanslope Park facility, estimated at more than a million files with detailed information about foreign affairs dating back from than a century, material that would greatly help with our understanding of our current foreign policy. </p>
<p>Now referred to as “<a href="https://www.gov.uk/guidance/fco-non-standard-files">non standard</a>” files, the FCO material is known to contain papers on Cambridge spies <a href="https://theconversation.com/revealed-the-panic-that-followed-the-defection-of-the-cambridge-spies-49623">Donald Maclean and Guy Burgess</a>, along with compensation claims relating to Nazi persecution. </p>
<p>Yet even when the existence of such material becomes public knowledge, it is challenging to secure its release under FOI, the limitations of which are highlighted by my own experience in trying to access some of it. </p>
<h2>File under frustration</h2>
<p>On August 4 2015 I made an FOI request to the Cabinet Office, asking for information about the Cabinet secretary’s “miscellaneous papers” and for a copy of the catalogue of this collection that, according to the Wanless/Whittham supplement, was prepared during February and March 2015. While I received a prompt acknowledgement of my request on August 5, I did not receive a reply until September 21 2015, when I was informed that: “The catalogue is a sensitive document and will not be released.” </p>
<p>No further explanation as to the specific exemptions under which the catalogue was being withheld was provided. Following the necessary procedure, on September 24 I asked for the Cabinet Office to review this decision. I received an acknowledgement of my request later that day, but I did not receive a reply to this request until February 16 2016, when I was told that the information I had requested was being withheld under <a href="http://www.legislation.gov.uk/ukpga/2000/36/section/22">section 22(1)</a> of the act, as the information was intended for future publication. I have since referred the case to the Office of the Information Commissioner.</p>
<p>The length of time the FOI process has taken in this case has proved incredibly frustrating, but the problem cuts deeper than that; there is something deeply concerning – if not farcical – when the Cabinet Office can simply state that a document “will not be released” in one letter, while in the next I can be denied the information because it is intended for future publication. One of these statements simply cannot be true.</p>
<p>So while we rejoice at the fact that we will not face an even more restrictive FOI regime in the near future, let’s not forget that the system we currently have remains problematic. Who, exactly, does Hancock think the act currently works well for; those who make the requests, or those who answer them?</p><img src="https://counter.theconversation.com/content/55601/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher J. Murphy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Whether they charge for FoI searches or not, it’s still too hard to access government information.Christopher J. Murphy, Lecturer in Intelligence Studies, University of SalfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506242016-01-11T15:45:44Z2016-01-11T15:45:44ZSecret evidence: coming to an employment tribunal near you<figure><img src="https://images.theconversation.com/files/107173/original/image-20160104-28997-swd7vh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Secret evidence can leave employees in the dark.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/salowphotography/5641137120/in/photolist-8kPZNN-65RLba-72TyzV-5ajPtW-9tr9r-7rcGLA-2Ey8Ck-Rka7X-9GZYt6-4Yd72x-8JU33R-5ypVap-3X2xXU-46W6WL-9AuiwQ-7DCXSg-98YWb-nUj1u-6X6Lif-6X2JGF-6X6L71-6X2L6z-6X2LfK-6X2JxB-6X6KRu-6X2KUi-6X6KzA-6X2KKB-aVAtG-7vuaGQ-ptarz3-cg2m3C-dDiAXU-4eEupy-7cuuLS-7mFGFF-kmm34w-kmjrMX-cHp6z-5Bw4dq-2Ks7bv-25Efu-oU4KD-d6pbr-5wy2ew-6dBkZr-7pKsHf-4Fhork-bQZinc-idZkJ">Nicole Salow</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Imagine being dismissed from your job without being told of the reasons why and without being provided with any evidence of wrongdoing. This Kafka-esque scenario feels like a tale from decades ago and deep behind the iron curtain – but it is happening in Britain, right now. In fact, it is happening more and more. </p>
<p>One recent claim for discrimination and unfair dismissal helps illuminate the story. <a href="https://www.judiciary.gov.uk/judgments/kiani-v-the-secretary-of-state-for-the-home-department">It failed after a seven year legal action</a>.</p>
<p>Afzaal Ahmad Kiani, was suspended from duty as an immigration officer at the Home Office in 2008 pending a review of his security vetting status. He was later dismissed on the basis that he no longer met the requirements set out in government vetting policy. However, no substantial explanation for this has ever been revealed. </p>
<p>Because national security implications were raised, evidence can lawfully be withheld and proceedings can be held in secret, that is, without the presence of the person or their legal representatives. This is known as “closed material procedure”. This is a mechanism for dealing with cases where a government body asserts that information is too sensitive to disclose. Rather than a rarity, this aspect of the British legal system is becoming a recurring theme. </p>
<h2>The legal framework</h2>
<p>Since 1997, more than 15 pieces of legislation have been passed <a href="http://www.justice.gov.uk/courts/procedure-rules/civil/">which enable this to happen</a> covering areas including parole board hearings, bail hearings, inquests, asset freezing cases and cases heard before The Special Immigration Appeals Commission. The <a href="http://www.legislation.gov.uk/ukpga/2013/18/contents/enacted">Justice and Security Act 2013</a> extended this practice to general civil proceedings. </p>
<p>And amendments to the <a href="http://www.legislation.gov.uk/uksi/2013/1237/schedule/1/made">Employment Tribunals Act 1996</a> have provided a statutory framework for “secret” employment tribunals. So this would apply to you if you were working in a passport office in Portsmouth, a job centre in Slough, or indeed any civil service role.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The judiciary had been leaning towards leniency.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/stvphotos/9011398158/in/photolist-hMsTab-hMsnyB-Mab43-rUVAAh-Mahq8-ex5gu-9XmTk-9XmTs-ex4Np-9Xn4h-9XmTu-9XmTw-9XmTp-ex5sk-ex53C-ex4B5-ex4pb-ex4fc-MaEKe-MaE66-Maijn-Mazdu-74KxRe-9oi2Ey-8NvxCd-eJiLHL-p1WdHN-2eFC6-86khpe-5wYtoX-6bN59-fPpgtY-bEiVmu-2eQ2c-biZkKX-2fcKw9-2f8haK-2f7M4H-2fcLZj-6L3w1v-89zb7A-2Dd5pm">STV Photos</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>The concession to a worker who might find themselves facing such a tribunal comes with the special advocate, a government appointed lawyer who represents the person’s interests in relation to material that is kept secret from that person. However, the special advocate cannot communicate to that person or their legal representatives any details of that material, nor can they take instructions with regard to the nature of the material. Hence there is no opportunity to question the validity of any of the information or offer a defence against any allegations of wrongdoing.</p>
<p>Clearly, these procedures raise issues of principles of fundamental concerns such as the right to a fair hearing provided <a href="http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf">under the European Convention of Human Rights</a>, and <a href="http://www.eurofound.europa.eu/observatories/eurwork/comparative-information/overview-of-the-implementation-of-the-framework-equal">equal treatment directives under EU law</a>. Numerous legal challenges have been raised. </p>
<h2>Getting the gist</h2>
<p><a href="http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm">In a 2009 case</a> it was held that the right to a fair hearing under the Convention would not be violated providing that at least a minimum amount of information regarding allegations was made available. This has become known as “gisting” in legal circles and although <a href="http://www.employmentcasesupdate.co.uk/site.aspx?i=ed8773">a 2011 case</a> deemed that this protection was not an absolute requirement, it appeared that the judiciary favoured at least a modicum of fairness. </p>
<p><a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-06/cp130070en.pdf">In a case from 2013</a> it was ruled by the European Court of Justice that in the interest of procedural fairness, the essence of the allegations should be provided. Further, national courts should strike a balance between the right to effective judicial protection guaranteed by the Charter of Fundamental Rights under EU law and the requirements of state security. Hence some inroads in the interests of fundamental fairness, albeit marginal, were achieved.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Not at liberty to say…</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/81952353@N08/7501604936/in/photolist-cqTFN9-46pNk8-apYuGP-6reqf2-8FKJg2-fL3HGq-4DgrrU-7HfPF-7HfPG-9z5Fp5-ykFr8i-6PEME5-6MtL5q-c57o9b-dcknz7-6xSvnA-c3Ktch-7prkJu-c3KAXq-y7uKQ2-3HvQHS-fqVcrv-4iqpA7-6hCMDg-CYoQc-5BBJF8-e7WR73-dvdGDt-dvjkej-dvdc1p-dvdbUT-dvdKn6-dviLQS-dvdbNF-dvdGNv-o9HnYk-nY5gDG-ohkFbZ-hu9Bja-dvjhHQ-dvdbJ6-dviM5o-dviLMW-dv4s7Q-dvjhFd-dviM2G-dvdbX6-dvdKr8-dviLQG-dvjkbE">Mr.Kitsadakron Pongha</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>A deeply concerning issue of the Kiani case is that he was not allowed even the “gist” of the case against him. The court of appeal ruled that there is a distinction between interference with free movement or deprivation of liberty cases, and employment rights. Thus in the context of employment tribunals, even a minimum amount of information does not need to be provided and the court’s duty to balance competing interests of state security and a fair hearing is satisfied by the special advocate system.</p>
<p>In other words, if you’re up before an employment tribunal and it is decided the information may be sensitive, then you might not even get the “gist” of allegations if your liberty is not at stake. </p>
<h2>Desperately seeking fairness</h2>
<p>This case denotes a disturbing twist in the tale. It seems that judicial inclination (as evidenced in the 2009 case above) to reason and interpret in favour of softening the sledgehammer effect of “closed material” procedures has taken a U-turn. </p>
<p>What’s more, faith in the special advocate system may be misplaced. The role of the special advocate is limited. Communication with the individual or their representative with regard to undisclosed material is forbidden. Therefore the truth of any allegations cannot be questioned.</p>
<p>It is noteworthy that in the same year as the closed material procedure was extended to include employment tribunals, a significant number of special advocates <a href="http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/157/15709.htm">resigned in protest</a> at the prohibition of communication with the person in question. This inherently interferes with their function of protecting their interests and highlights the unfairness of the system. The implications for the future of the fairness of such employment tribunals are ominous. </p>
<p>Shazia Khan of Bindmans LLP who represented Kiani condemned the practice as discriminatory and <a href="http://www.bindmans.com/news-and-events/news-article/Court-of-appeal-refused-to-order-gisting-of-evidence">emphasised the devastating effect</a> that this seven-year battle has had on her client. She has also warned against the possibility of an increase in the frequency of invoking the “closed material procedures” given the acute lack of transparency or fairness.</p>
<p>It is disquieting to reflect that this may denote an increased propensity to invoke “secret” procedures in the name of expediency. Where once the judiciary expressed a willingness to defy the most draconian aspects and guarantee at least a kernel of hope, in this case that prospect has been abandoned.</p><img src="https://counter.theconversation.com/content/50624/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gilliane Williams does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sacked from your job and never told why. Is this the new normal for some workers in Britain?Gilliane Williams, Senior Lecturer in Law, University of BrightonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/507842015-11-20T10:50:16Z2015-11-20T10:50:16ZWhy governments think that freedom of information is for nincompoops<figure><img src="https://images.theconversation.com/files/102365/original/image-20151118-14191-1on39ms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">stable</span></span></figcaption></figure><p>Politicians go off being open quite easily. Tony Blair went from being a champion of transparency in 1997 to calling himself a “nincompoop” for passing a Freedom of Information Act in 2010. Barack Obama was the “Transparency President” in 2009, using <a href="http://usgovinfo.about.com/library/PDF/2009_FOIA_memo.pdf">executive orders to open everything up</a> on his first day in office, but by 2013 he was the president who had prosecuted more leakers than <a href="http://www.politifact.com/punditfact/statements/2014/jan/10/jake-tapper/cnns-tapper-obama-has-used-espionage-act-more-all-/">all his predecessors put together</a>. </p>
<p>Now, having promised in 2010 that his would be the “<a href="http://www.bbc.co.uk/news/10195808">most transparent government ever</a>”, the UK prime minister, David Cameron, <a href="http://www.ft.com/cms/s/0/3e10b852-15d2-11e5-a58d-00144feabdc0.html#axzz3rr7JDQJE">has created an independent Freedom of Information Commission</a> to look into how parts of the act are working. So why does being open lose its sheen for politicians?</p>
<h2>‘Weaponising’ information</h2>
<p>Politicians frequently blame all this upset on journalists who they say abuse all this new openness. Blair claimed FOI <a href="https://www.opendemocracy.net/ourkingdom/maurice-frankel/roots-of-blairs-hostility-to-freedom-of-information">is mostly used as a “weapon” by journalists</a> and his chief of staff, Jonathan Powell, agreed. More recently the leader of the House of Commons, Chris Grayling, said FOI was now a “<a href="http://www.pressgazette.co.uk/minister-chris-grayling-foi-misused-research-tool-generate-stories-media-isnt-acceptable">research tool to generate stories for the media</a>” (though he used FOI when in opposition and was a bit of a fan).</p>
<p>The leader of Wolverhampton council, Keith Ireland, <a href="http://www.expressandstar.com/news/local-news/2015/11/07/freedom-of-information-act-its-for-troublemakers-and-lazy-students-says-wolverhampton-council-boss/">chimed in to say</a>: </p>
<blockquote>
<p>The vast majority of requests come from media across the country, be that the BBC, local media, or media in general. They come from people who are out to create trouble for councils and students who are too lazy to do their own research. </p>
</blockquote>
<p>The claim that FOI is being abused by journalists is not borne out by the facts. The biggest user group is <a href="http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/96we09.htm">actually members of the public</a> who use requests locally to help themselves. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=201&fit=crop&dpr=1 600w, https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=201&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=201&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=252&fit=crop&dpr=1 754w, https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=252&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/102471/original/image-20151119-18413-k9ke86.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=252&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Ben Worthy</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Some journalists do use FOI, though many do not. Some requests may be silly or designed to stoke up controversy. But there are many important issues from the invention of <a href="http://news.bbc.co.uk/1/hi/uk_politics/7939726.stm">weapons of mass destruction in Iraq</a> to <a href="http://www.islingtongazette.co.uk/news/heritage/islington_s_food_hygiene_shame_revealed_in_damning_report_1_3343176">destructive hygiene standards in Islington</a>. </p>
<p>The problem for politicians is that it is journalists’ requests that are seen, they are the ones that get published, get noticed and make headlines.</p>
<h2>Rattling skeletons</h2>
<p>As to why politicians are upset, the most obvious answer is that FOI laws are rather disruptive. They spring surprises, upset a politician’s neat timetable and can dig up all sorts of forgotten issues. Looking <a href="http://www.foi.directory/featured/exposed-103-cases-where-journalists-have-misused-freedom-of-information-requests-in-2015/">across these 103 stories</a> you can see how being more open disrupts and upsets. Blair was, it seems, particularly upset by the <a href="https://theconversation.com/used-or-abused-11-serious-issues-raised-by-foi-requests-30678">release of the list of visitors</a> he had invited to Chequers (which was actually <a href="http://www.telegraph.co.uk/news/uknews/1480286/Which-of-these-house-guests-was-Tony-Blair-embarrassed-about.html">an FOI request made by an MP</a> who later complained that it was “deeply worrying that it has taken 18 months to reveal that the prime minister had dinner with Des O'Connor”. This sort of information is now, by the way, <a href="https://www.gov.uk/government/news/pm-publishes-meetings-data">proactively released</a>.</p>
<p>Another reason politicians go off being open is that they only meet the “worst” requests. Senior politicians see very few of them – normally the most controversial, sensitive or, worse of all, the ones that concern them, and can cause trouble, <a href="http://www.politico.com/story/2015/03/foia-hillary-clinton-email-daniel-metcalfe-116011">as Hillary Clinton found out</a>. So they get a dim view of what is being asked. </p>
<h2>Chilling out</h2>
<p>A final reason politicians often give is that all this transparency stops government working “properly” – as they like to put it. Politicians and officials claim there is a “<a href="http://www.bbc.co.uk/news/uk-politics-17365222">chilling effect</a>” meaning that decisions are no longer written down. The evidence that this is really happening is rather slight and the parliamentary committee looking into it were rather unimpressed. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"665265455880232961"}"></div></p>
<p>It may happen here and there, but decision-making has been transformed much more by emails, by the fear of leaks and by the sheer speed of government. The danger is, as the Information Commissioner warned, that these views become a “<a href="http://blogs.lse.ac.uk/mediapolicyproject/2015/07/23/the-governments-freedom-of-information-commission-tilts-the-political-discussion-towards-damage-and-cost/">self-confirming myth</a>”. </p>
<p>Politicians often lose their faith in being open. The difficulty with freedom of information laws is that just as politicians start going off being open, other groups find their faith in openness getting stronger – whether because it’s a useful tool or symbol of democratic freedom and rights. As the new commission looks into the law, there’s likely to be a battle ahead.</p><img src="https://counter.theconversation.com/content/50784/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Worthy received funding from the Leverhulme trust, ESRC and has worked for the Open Government Partnership</span></em></p>Politicians hate secrecy when in opposition but grow to love it when in power.Ben Worthy, Lecturer in Politics , Birkbeck, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/441362015-07-02T01:12:10Z2015-07-02T01:12:10ZBorder Force Act entrenches secrecy around Australia’s asylum seeker regime<figure><img src="https://images.theconversation.com/files/87066/original/image-20150702-27109-3sqhzl.jpg?ixlib=rb-1.1.0&rect=0%2C503%2C2385%2C1442&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lawyers and asylum seeker advocates are concerned that the Border Force Act will have a 'chilling effect' on whistleblowers working in detention centres. </span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>On Wednesday, the <a href="https://www.comlaw.gov.au/Series/C2015A00040">Australian Border Force Act</a> came into force. It makes it an offence for an “entrusted person” (an Australian Border Force employee) to make a record of or disclose “protected information”. This is widely defined to include any information obtained by the person in their capacity as an employee. The penalty for the offence is two years’ imprisonment.</p>
<p>More than 40 health professionals have penned an <a href="http://www.theguardian.com/australia-news/2015/jul/01/detention-centre-staff-speak-out-in-defiance-of-new-asylum-secrecy-laws">open letter</a> to the government in which they vowed to continue making disclosures. They challenged the Department of Immigration and Border Protection to prosecute them so that:</p>
<blockquote>
<p>… these issues may be discussed in open court and in full view of the Australian public. </p>
</blockquote>
<p>Lawyers and asylum seeker advocates are concerned the act will have a <a href="http://www.abc.net.au/news/2015-06-30/detention-centre-workers-face-imprisonment-for-whistleblowing/6584392">“chilling effect”</a> on whistleblowers working in detention centres. But the ALP <a href="https://twitter.com/TimWattsMP/status/615850412353060864">argues</a> existing whistleblower arrangements for public interest disclosures remain protected.</p>
<p>So, how might the act work in practice?</p>
<h2>Disclosure to protect life or health</h2>
<p>The act provides for a number of exceptions to the offence. Section 48 allows for disclosure where an:</p>
<blockquote>
<p>… entrusted person reasonably believes it is necessary to prevent or lessen a serious threat to the life or health of an individual. </p>
</blockquote>
<p>On its face, the provision allows for the disclosure of serious child or sexual abuse. However, other provisions place a burden on Border Force workers, which may deter disclosure.</p>
<p>The act provides that a whistleblower bears the evidentiary burden of proof that an exception applies if information is disclosed. Whistleblowers must make judgements about whether a threat to life or health is “serious” enough to warrant disclosure and then be willing to defend their actions in court. This alone may have a deterrent effect.</p>
<p>The exception sits uneasily with other provisions of the act that regulate employee conduct. Section 24 requires all workers and contractors to make an oath or affirmation before the Border Force commissioner. It is unclear exactly what that oath or affirmation is or how it impacts on an employee’s ability to disclose information. </p>
<p>Section 26 allows the commissioner to issue directions about how employees are to perform their duties. Failure to follow a direction or breach of an oath may give rise to grounds for termination of employment on the basis of “serious misconduct” under the act.</p>
<p>While the commissioner, Roman Quaedvlieg, has <a href="http://www.smh.com.au/federal-politics/political-news/medical-staff-unlikely-to-be-prosecuted-under-new-border-protection-laws-says-border-force-commissioner-20150701-gi269g.html">said</a> it is “unlikely” that medical staff will be prosecuted, the reality is that future whistleblowers are stuck between a rock and hard place. Disclosure may not result in imprisonment, but it could lead to a loss of employment.</p>
<h2>Disclosure and the public interest</h2>
<p>Beyond issues of individual health and safety, there are questions about the extent to which the act allows disclosure of information in the public interest. Such disclosures may relate to breaches of domestic law, conditions in detention centres, or breaches of international law.</p>
<p>There is no public interest exception in the act. However, an exception exists allowing disclosure that is:</p>
<blockquote>
<p>… required or authorised by or under a law of the Commonwealth, or state or territory. </p>
</blockquote>
<p>This provides an opening for public interest disclosures to be made in accordance with the <a href="https://www.comlaw.gov.au/Details/C2013A00133">Public Interest Disclosure Act</a>, which provides protection from criminal liability for public service employees, including contractors.</p>
<p>However, protection under the Public Interest Disclosure Act does not extend to external disclosures outside of government of information that consists of – or is likely to consist of – <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/pida2013295/s41.html">“sensitive law enforcement information”</a>. This includes information which, if disclosed, is reasonably likely to prejudice Australia’s law enforcement interests, including its interest in:</p>
<blockquote>
<p>… avoiding international disruption to national and international efforts relating to law enforcement … or the integrity of law enforcement agencies. </p>
</blockquote>
<p>The government may argue that much of what goes on in detention centres or at sea amounts to sensitive law enforcement information, just as it has argued that on-water activities under Operation Sovereign Borders are <a href="http://www.abc.net.au/news/2015-07-01/border-force-commissioner-operational-matters-roman-quaedvlieg/6586274">“operational matters”</a> that cannot be discussed.</p>
<p>The act also provides an exception to allow the disclosure of information to government or other bodies if authorised in writing by the immigration minister. Last week, the minister, Peter Dutton, <a href="https://www.comlaw.gov.au/Details/F2015L00977">issued a rule</a> authorising disclosure to a large number of government agencies, but they do not include the Commonwealth Ombudsman or the Australian Human Rights Commission – bodies set up to hold the government to account. Nor does it include any media.</p>
<p>The Law Council of Australia <a href="http://www.lawcouncil.asn.au/lawcouncil/images/2969_-__Final_Submission_Border_Force_Bills_2015.pdf">argued for an amendment</a> to the bill to include a standalone public interest exception. This would have been a much-needed amendment that, at the very least, would have provided a more balanced outcome. A standalone public interest exception is necessary to protect, for example, allegations that were reported to the media that led to the <a href="http://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/review-conditions-circumstances-nauru.pdf#search=moss%20review">Moss review</a> about conditions and circumstances on Nauru.</p>
<h2>Secrecy and open government</h2>
<p>As the Australian Law Reform Commission <a href="http://www.alrc.gov.au/publications/secrecy-open-government">remarked</a> in 2010, a key principle of open government requires an:</p>
<blockquote>
<p>… indispensable check to be imposed on those entrusted with government power. </p>
</blockquote>
<p>This allows the public to know whether a government’s deed matches its word. While some amount of government secrecy is necessary, such restrictions should be <a href="https://theconversation.com/boats-secrecy-leads-to-bad-policy-without-democratic-accountability-43324">balanced</a> with the need for transparency.</p>
<p>Rather than promoting open government, the act gives the distinct impression that Border Force employees are persons to whom the government “entrusts” its secrets. But a breach of that trust, even if done in the public interest, renders a person liable for imprisonment.</p>
<p>The act further entrenches the culture of secrecy around Australia’s asylum seeker policy at the cost of open and transparent government. That is something we should be worried about.</p><img src="https://counter.theconversation.com/content/44136/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Khanh Hoang does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australia Border Force Act further entrenches the culture of secrecy around our asylum seeker policy at the cost of open and transparent government. That is something we should be worried about.Khanh Hoang, Associate Lecturer, ANU College of Law - Migration Law Program, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/409482015-05-04T02:05:36Z2015-05-04T02:05:36ZThe right to know vs the need for secrecy: the US experience<p><em>This article is part of the <a href="https://theconversation.com/au/topics/democracy-futures">Democracy Futures</a> series, a <a href="http://sydneydemocracynetwork.org/shortcodes/images-videos/articles-democracy-futures/">joint global initiative</a> with the <a href="http://sydneydemocracynetwork.org/">Sydney Democracy Network</a>. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.</em></p>
<hr>
<p>Thomas Jefferson once wrote that “information is the currency of democracy,” or so it is easy to learn online. Fortunately, it is just as easy to learn that he wrote no such thing. The people who run the website for Jefferson’s <a href="http://www.monticello.org/site/jefferson/information-currency-democracy-quotation">home at Monticello</a> cannot find that quotation anywhere in Jefferson’s papers.</p>
<p>And there is really no need to spend time searching. The American founders rarely spoke of democracy and they did not label the American form of government “democratic” but “republican”. They judged democracy to be unstable and undesirable. So we can feel confident that Jefferson never uttered nor wrote these words.</p>
<p>It was not Jefferson but political activist Ralph Nader who declared information the currency of democracy. In 1970 <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/hcrcl5&div=6&id=&page=">Nader claimed</a> a “well-informed citizenry” to be the “lifeblood of democracy” and <a href="https://books.google.com.au/books?id=gzZXiLubV9QC&pg=PA422&lpg=PA422&dq=%E2%80%9Cinformation+is+the+currency+of+power%22&source=bl&ots=r6ZmQ3n6YV&sig=PYzcNHr51KQltH8zoBvOXA53EuI&hl=en&sa=X&ei=CNpCVZ3FMsS_mwXXxYGAAQ&ved=0CDAQ6AEwAw#v=onepage&q=%E2%80%9Cinformation%20is%20the%20currency%20of%20power%22&f=false">wrote that</a> “information is the currency of power”.“ Later, in 1986 and 1996, <a href="https://books.google.com.au/books?id=gzZXiLubV9QC&pg=PA403&lpg=PA403&dq=Nader+%22Information+is+the+currency+of+democracy%22&source=bl&ots=r6ZmQ3n9-_&sig=gWZ2bJgwxsP3RRGXI1_vLNotoAU&hl=en&sa=X&ei=V9tCVaaOHcLBmAXesoGwAw&ved=0CEIQ6AEwBg#v=onepage&q=Nader%20%22Information%20is%20the%20currency%20of%20democracy%22&f=false">he condensed these</a> not entirely consistent propositions into:</p>
<blockquote>
<p>"Information is the currency of democracy.”</p>
</blockquote>
<h2>Don’t forget right to privacy and security</h2>
<p>Nader’s proposition, however, stands on shaky grounds. It is not difficult to think of instances where reasonable people would prefer that some information the government possesses be kept from the public. </p>
<p>In the interest of public safety, a citizen who is being watched by undercover police officers, operating according to the law, should not be informed of the surveillance. In the interest of personal privacy, the public should not have access to personnel records of government employees without good cause. Nor should genuine national security information be publicly available.</p>
<p>Activists who support transparency in government do not generally advocate complete transparency in all facets of government. Most democrats accept many limitations to complete disclosure of government information.</p>
<p>In the United States, many of these limitations are long established and well institutionalised, including their incorporation in explicit provisions of the pioneering US <a href="http://www.foia.gov/about.html">Freedom of Information Act</a> (FOIA) of 1966. This was the first such law in the world since Sweden enacted something like it in 1766 and Finland in 1951.</p>
<p>Earlier in North American history, there were many conditions under which subjects, later “citizens”, did not have full access to relevant information. It troubled the government of Virginia in 1682 that an upstart printed the laws of the colony without a licence. He was punished, since printing was forbidden in Virginia until 1729, and from that point until 1765 the governor controlled the only printing press in Virginia.</p>
<p>In the Commonwealth of Massachusetts, a political entity with an elected assembly, legislative proceedings were confidential, even including how one’s representative voted on particular measures. It is hard to imagine a matter more central to democracy than the availability to voters of a public record of how their representatives vote, but this was not something the people of Massachusetts in the 1700s demanded. </p>
<p>Nor did the people of the United States demand it until 1970 – 1970! Only then did the US House of Representatives make members’ votes on amendments to bills part of the public record. Only then did a reform coalition in the House sponsor a set of “anti-secrecy” measures that ushered in a major increase in the public visibility of legislative action.</p>
<h2>What can we learn from history?</h2>
<p>There are several important historiography lessons in all this. </p>
<p>First, there is a strong tendency, at least in the United States, to attribute all wise political acts and ideas to people who lived at the end of the 18th century and correspondingly to attribute all ill-conceived and disastrous political ideas to our contemporaries – particularly those of the other party. Yet when we look closer, this assessment of history requires re-adjustment, especially to account for the dramatic ways in which democracies have come to operate at least since 1945. While these changes are problematic in various respects, they also incorporate huge advances in pluralism, tolerance, diversity of representation, and transparency.</p>
<p>Second, sources of progressive change do not always come “from below”. In some instances they do – the US civil rights movement is a stunning example. (Although, even there, a long history of the <a href="http://www.naacp.org/">NAACP</a>’s legal efforts to challenge segregation and discrimination operated in the courtrooms of the nation, not in the streets.) But in the particular case of the right to know, the drive for freedom of information was pursued with scarcely any popular interest, let alone a popular movement.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=690&fit=crop&dpr=1 600w, https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=690&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=690&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=867&fit=crop&dpr=1 754w, https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=867&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/80029/original/image-20150501-30735-16clb6j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=867&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">John Moss, architect of the US Freedom of Information Act, drew on Cold War rhetoric to demand executive accountability to Congress.</span>
<span class="attribution"><a class="source" href="http://en.wikipedia.org/wiki/John_E._Moss#/media/File:John_E._Moss.jpg">Wikimedia Commons/Congressional Pictorial Directory</a></span>
</figcaption>
</figure>
<p>The Freedom of Information Act came out of a decade-long effort in the Congress to control the expansion of an ever more powerful executive branch of government. This was much more a battle between two branches of government than between two political parties or two theories of governing. It appealed to a popular Cold War rhetoric, urging members of Congress to recognise that growing executive power and executive secrecy were establishing a “<a href="http://nieman.niemanfoundation.netdna-cdn.com/wp-content/uploads/2014/03/Winter-1958_150.pdf">paper curtain</a>” in Washington, violating principles of “openness” that distinguished the “free world” from Soviet totalitarianism. </p>
<p>Presidents both Republican and Democrat resisted the congressional challenge; members of Congress both Republican and Democrat vigorously urged it forward. While journalists and associations of journalists like the American Society of Newspaper Editors applauded FOIA, the general public took little notice.</p>
<p>Third, there is a challenge that few scholars have taken up concerning the role of higher education itself in fostering both insight and oversight as public values. Higher education in the US grew enormously after 1945 in the percentage of young people attending college.</p>
<p>Even more important, it changed decisively in the development among college faculty and students of a more critical attitude toward received cultural knowledge. This included a growing integration of the sciences into college curricula once largely dominanted by the arts and letters.</p>
<p>Over time, as historian Thomas Bender <a href="https://books.google.com.au/books?id=WomGOI8I4UgC&pg=PA22&dq=increasingly+professionalised+disciplines+were+embarrassed+by+moralism&hl=en&sa=X&ei=putCVeS_F4_ooATA2YDYBA&ved=0CCoQ6AEwAg#v=onepage&q=increasingly%20professionalised%20disciplines%20were%20embarrassed%20by%20moralism&f=false">has observed</a>:</p>
<blockquote>
<p>“The increasingly professionalised disciplines were embarrassed by moralism and sentiment; they were openly or implicitly drawn to the model of science as a vision of professional maturity.”</p>
</blockquote>
<p>Tracing the impact of higher education on the broader society is a task that deserves far more attention than it has received. One of those impacts, I suspect, was a growing resonance of challenges to authority, including the authority of public officials who operate behind closed doors.</p>
<h2>Sometimes there are good reasons for secrecy</h2>
<p>Making government more accessible to the public is vital to improving the quality of democracy, yet this does not make transparency an ultimate good that should be honoured under all circumstances. There really are military secrets that should not fall into the hands of fanatics, practical jokers, or deranged people. There really is a need for government decision-makers to be able to trust in the confidentiality of their meetings and of their electronic communications if there is to be a free flow of conversation among them.</p>
<p>The recent dust-up over Hillary Clinton’s <a href="https://theconversation.com/clintons-reversal-on-openness-may-impact-more-than-her-presidential-ambitions-38516">use of her personal email account</a> while in office as US Secretary of State is only the latest case of uncertainty over the rules of acceptable behaviour when there is a clash between a legitimate confidentiality of internal communications and a public right to information. Should the Secretary of State be forbidden to shield some of her communications by conducting them on her personal e-mail account? </p>
<p>What about a professor at a public university? Should he or she be able to shield communications in the same fashion, making them unavailable to citizens who use state public records laws to demand release of e-mails? </p>
<p>Some groups have sought access to professors’ e-mail to discredit researchers whose work supports the scientific consensus on climate change. Others have tried to discredit professors who are sceptical of the scientific consensus. Some states exempt university professors’ records from public records laws on the grounds that the preservation of academic freedom is a vital democratic good that, within limits, trumps the public’s right to know.</p>
<p>There really are good reasons for, say, the secrecy of the voter’s ballot in a world where the strong can intimidate the weak if their preferences are known. There really are good grounds for protecting privacy and, in the realm of everyday social interaction, maintaining civility by tact in the withholding of honest appraisals. And there really is a value in authentic intellectual inquiry related to public issues that deserves to be weighed against a public right to know.</p>
<p>Still, reforms toward the greater visibility of government activity and demands for greater frankness in other domains of life, too, have contributed to the improvement of society. Almost everyone recognises the danger to democracy of overclassification and enforced silences that exist only to save an individual, office or policy from embarrassment and not to protect national security, personal privacy or decision-makers’ legitimately confidential deliberations.</p>
<h2>So what do we make of Edward Snowden?</h2>
<p>And <a href="https://theconversation.com/patriot-games-the-odds-are-stacked-against-whistleblower-snowden-15785">Edward Snowden</a>? Mr Snowden has indicated that he has not released all of the government records in his possession. Nor, apparently, will he do so. Some of them, it seems, if made public, could endanger public safety.</p>
<p>I have no reason to doubt Snowden’s good intentions in withholding these records but nor do I have any reason to judge him an expert at, let alone a legitimately selected representative for, deciding what information is or is not in the public interest. Why is this his right to decide? </p>
<p>Responsible government secrecy requires a democratic process of oversight. Theft, brave and selfless an act as Snowden’s appears to have been, is not a good model of holding government accountable.</p>
<p>I understand the distrust of government secrecy. I share it. I do not understand a lack of distrust of informational vigilantism and even, in some quarters, antic glee at Snowden’s coup. We can be grateful that he opened a window on wide-ranging US government misdeeds in <a href="https://theconversation.com/political-wheel-may-be-turning-on-the-nsas-surveillance-programs-19646">National Security Agency surveillance</a>, but it is much harder to sympathise with the way he went about it.</p>
<p>In a world of grave dangers to life from weapons we have made, of devastating threats to earth’s resources that we have callously exploited, and of hate and intolerance we have failed to sanction, it is often difficult to see bright spots in recent decades, but surely one of them is an expansion of a culture of frankness and of expectations of public disclosure. These advances are not untroubled, as anyone who honours the value of privacy knows, but on balance there has indeed been progress.</p>
<hr>
<p><em>This article is based on <a href="http://sydneydemocracynetwork.org/event-a-surprisingly-short-history-of-the-right-to-know/">the author’s lecture</a>, A Surprisingly Short History of the ‘Right to Know’, at the University of Sydney. The ABC will broadcast a recording of the lecture on Radio National’s Big Ideas program at 8pm on May 5 and it can then be accessed <a href="http://www.abc.net.au/radionational/programs/bigideas/">here</a>.</em></p><img src="https://counter.theconversation.com/content/40948/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Schudson has in the past received funding from the Spencer Foundation and the US National Endowment for the Humanities and a fellowship awarded by the MacArthur Foundation. He is contracted to receive future funding for research on "cultures of health" from the Robert Wood Johnson Foundation.</span></em></p>The idea of the right to know as the ‘lifeblood of democracy’ is a surprisingly modern development. And in an age when transparency is prized, privacy and secrecy can still be justified in many cases.Michael Schudson, Professor of Journalism, Columbia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/321032014-09-26T04:18:42Z2014-09-26T04:18:42ZNational security gags on media force us to trust state will do no wrong<p>It has been said that the line between good investigative reporting and inappropriate journalistic prying is never clearly drawn. Journalists usually complain long and hard when governments intervene to move the line. So they will not be impressed with what has happened this week.</p>
<p>In the shadow of the recent anti-terrorism raids across New South Wales and Queensland, the Abbott government has <a href="http://www.smh.com.au/digital-life/consumer-security/terror-laws-clear-senate-enabling-entire-australian-web-to-be-monitored-and-whistleblowers-to-be-jailed-20140926-10m8ih.html">passed legislation</a> (with Labor support) <a href="https://theconversation.com/national-security-bills-compound-existing-threats-to-media-freedom-29946">designed specifically to silence</a> those who would seek to report particular anti-terrorism measures.</p>
<h2>Government can impose blanket of silence</h2>
<p>The relevant law emerges from the <a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s969_first-senate/toc_pdf/1417820.pdf;fileType=application%2Fpdf">National Security Legislation Amendment Bill</a> (No.1) 2014. This amends the <a href="http://www.comlaw.gov.au/Details/C2014C00613">ASIO Act 1979</a> by adding a new section 35P (amongst others) to extend existing state and federal prohibitions on the disclosure of information regarding policing for anti-terrorist purposes.</p>
<p>The amendment imposes substantial jail terms (five years) for anyone who discloses information relating to a “special intelligence operation” (SIO). That penalty doubles if there is evidence that the disclosure would endanger the health or safety of any person or prejudice the effective conduct of an SIO. The Senate <a href="http://www.news.com.au/technology/online/spy-laws-passed-in-senate-asio-given-new-powers/story-fnjwmwrh-1227071116071">accepted a Palmer United Party amendment</a> that means anyone who publicly names an ASIO agent could be jailed for up to a decade, a ten-fold increase in the existing penalty.</p>
<p>There is no “public interest” defence. There is no defence that a journalist was not aware that an SIO was even in progress.</p>
<p>Laws designed to limit the reporting of such matters are not new. In the last decade each jurisdiction in Australia has passed legislation that limits publication of information about anti-terrorism orders, or other operations. For example, section 26P of the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/tpa2002291/">Terrorism (Police Powers) Act 2002 (NSW)</a> gives the NSW Supreme Court (upon application by the government) power to suppress anything to do with a preventative detention order or prohibited contact order.</p>
<p>What is different about the latest legislation is that the silence “blanket” now applies across Australia without the need for a court order.</p>
<h2>History of abuses makes case for transparency</h2>
<p>Respected criminologist Peter Grabosky has contributed an interesting chapter <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2482170">on this subject</a> in a forthcoming book, Unsettling Transparency. In his chapter he writes:</p>
<blockquote>
<p>While hardly anyone would suggest that national security should be managed in an environment of complete transparency, there are many who suggest that citizens of a democracy are entitled to know about acts of questionable propriety that have been committed by their government on their behalf. And prospectively, it is important for citizens to be party to informed discussion about whether the policies that may lead to these acts are misguided or not.</p>
</blockquote>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/60127/original/n2r9fpnj-1411698403.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The reporting of the Pentagon Papers, exposing lies to the people and Congress about the Vietnam War, wouldn’t happen under our national security laws.</span>
</figcaption>
</figure>
<p>Professor Grabosky analyses five international cases of unauthorised public disclosures of national security information. He concludes that the real harm to the national interest in each of the cases arose not from the initial disclosures, but from the state responses. Richard Nixon’s attempted censorship of the <a href="http://en.wikipedia.org/wiki/Pentagon_Papers">Pentagon Papers</a>, for example, only invited further opposition to the Vietnam War.</p>
<p>The difficulty for any government that invokes a cloak of secrecy under the claim of “national security” is that it invites suspicion. Is the real agenda to conceal a blunder, to justify a violation of the law, or to pursue a political end?</p>
<p>Remember the famous phrase of Ronald Reagan? “If you knew what I knew.” That rang hollow a decade later when the US government trotted out the same justification for the military pursuit of Saddam Hussein’s alleged “weapons of mass destruction” in the absence of any overt evidence.</p>
<p>In our own corner of the world the tradition continues: on the grounds of <a href="http://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/default.aspx">“national security”</a> the Australian government continues to refuse to discuss allegations that it engaged in <a href="https://theconversation.com/explainer-australia-and-timor-leste-in-the-hague-21215">eavesdropping on cabinet ministers</a> of the government of Timor-Leste.</p>
<h2>The need to speak truth to power</h2>
<p>Into this debate come the journalists, those whose natural inquisitiveness aids their scepticism. Are there any ulterior purposes? Are governments exaggerating a threat in order to justify excessive countermeasures?</p>
<p>No-one is able to assess whether the claims are valid, and whether operations are a legitimate use of state power, unless the information is put under public scrutiny. Moreover, in the absence of reliable information, potentially damaging speculation is likely to fill the evidentiary gap.</p>
<p>So where do we go from here? One could suggest that media proprietors’ barristers should head to the High Court and argue that the law violates the <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fprspub%2FT0610%22">freedom of political communication</a> implied in the Constitution, especially if disclosure does not pose a disproportionate threat to public safety.</p>
<p>The legislation, however, does not give any assistance in this respect. And, in the case of <a href="http://www.gtcentre.unsw.edu.au/node/169">Lodhi (2006) NSWSC 571</a>, the NSW Supreme Court held that suppressing evidence such as this was not an unconstitutional restriction on freedom of speech. </p>
<p>One could simply trust governments to do their job, and tell naysayers to desist. But we need to remember that, when officials are confident that they are not under scrutiny, it is not unfair (nor un-Australian) to suspect that some will exercise their power inappropriately. And to determine whether that has occurred we need transparency, not a wall of silence.</p>
<p>Governmental zeal, however justified by the pressures of the day, must be kept in check by the curiosity of a free press.</p><img src="https://counter.theconversation.com/content/32103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It has been said that the line between good investigative reporting and inappropriate journalistic prying is never clearly drawn. Journalists usually complain long and hard when governments intervene to…Rick Sarre, Professor in Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/193222013-10-22T19:43:33Z2013-10-22T19:43:33ZA deafening silence: the media’s response to asylum secrecy<figure><img src="https://images.theconversation.com/files/33418/original/f8fxxnhm-1382403397.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Abbott government has reduced the information flow on asylum seeker arrivals to a weekly briefing. How has the mainstream media responded?</span> <span class="attribution"><span class="source">AAP/Dan Himbrechts</span></span></figcaption></figure><p>It is remarkable how complacent Australia’s media has been in response to the federal government’s brazenly cynical suppression of information about <a href="http://www.abc.net.au/news/2013-09-23/immigration-minister-morrison-details-asylum-seeker-movements/4974758">asylum seeker boat arrivals</a>. There were a few <a href="http://www.canberratimes.com.au/comment/ct-editorial/public-deserves-to-know-asylumseeker-facts-20130921-2u6nq.html">indignant editorials</a> and then the circus moved on.</p>
<p>Doubtless, this is exactly what the Abbott government anticipated. It is a truism of media relations that you get your nasty stuff out of the way quickly, because the short-windedness of the media means that your pain will all be over in 24 hours.</p>
<p>On this occasion, however, the nasty stuff concerns suppression of information to the public about what the government is doing in a highly contentious area of public policy. It has been achieved by simply reframing a humanitarian issue as a national security issue.</p>
<p>The <a href="http://www.abc.net.au/news/2013-09-21/labor-attacks-changes-to-announcements-of-asylum-seeker-arrivals/4972760">Labor opposition</a> and the <a href="http://www.smh.com.au/federal-politics/political-news/christmas-island-residents-will-tell-the-world-about-asylum-seeker-arrivals-union-leader-20130923-2u8se.html">Greens</a> have tried to keep it alive, and have been duly reported. Labor has from time to time <a href="http://www.news.com.au/breaking-news-2/labor-claims-credit-for-boats-success-saying-coalition-has-not-changed-its-policy/story-e6frfkp9-1226743283607">claimed credit</a> for any reduction in boat arrivals, and has been duly reported.</p>
<p>Incidents at sea, including the co-ordination of a recent rescue of a boat in distress, have been duly reported, as have <a href="http://www.theage.com.au/federal-politics/political-news/boat-carrying-about-60-asylum-seekers-arrives-at-christmas-island-20131017-2vokx.html">sightings by Christmas Islanders</a>.</p>
<p>The <a href="http://news.smh.com.au/breaking-news-national/morrison-says-sri-lankans-set-to-return-20131018-2vrgd.html">weekly briefings</a> by the Minister for Immigration, Scott Morrison, have been duly reported, as has his recent decision to brand asylum seekers as <a href="http://www.theage.com.au/federal-politics/political-news/minister-wants-boat-people-called-illegals-20131019-2vtl0.html?rand=1382319797511">“illegals”</a> - a throwback to the inflammatory and inaccurate language of the Howard era.</p>
<p>But it is all so passive. It depends on something happening or someone saying something. Where is the pro-active disclosure journalism that is always necessary as a counter to government secrecy?</p>
<p>Where is the voice of <a href="http://www.australiasrighttoknow.com.au/">Australia’s Right to Know</a>? This brave and righteous coalition of media interests, including News Corp and Fairfax Media, can always be heard loudly defending what it asserts to be “the public’s right to know” when there is any suggestion that the media’s own interests are at stake.</p>
<p>Now - when there is a genuine public right to know – Australia’s Right to Know coalition is deafeningly silent.</p>
<p>It is possible, of course, that behind the scenes, reporters are working at accumulating evidence about what the government is doing and that the fruits of their work will soon be revealed.</p>
<p>It is to be hoped so because an important principle is at stake. National security is where media freedom and government suppression of information conflict sharply. It is most vividly exemplified by wartime censorship, which has always been the cause of heated debate between media and government.</p>
<p>Wartime censorship at least has the merit of moral justification - protecting military personnel and denying information to the enemy. At the same time, war is a matter of the most serious public interest, and so media companies have fought hard to report as much of it as they can.</p>
<p>They have been right to do so because it is a key function of the media to tell the public what is going on, to defend freedom of speech, and to resist government suppression. These duties are recognised in codes of ethics and practice across the Western world.</p>
<p>In Australia, the <a href="http://www.presscouncil.org.au/">Australian Press Council</a> counts among its duties the promotion of <a href="http://www.presscouncil.org.au/charter-of-press-freedom/">freedom of expression</a>. The code of ethics of the Media Entertainment and Arts Alliance, which is Australia’s only national code for journalists, also counts the <a href="http://www.alliance.org.au/code-of-ethics.html">promotion of free speech</a> as among the duties of journalists.</p>
<p>It is curious, then, that the media have been so supine in the current situation, where there is simply no justification for invoking national security considerations. It is all just spin. Terms like <a href="http://www.crikey.com.au/2013/07/25/military-reshuffle-abbotts-operation-sovereign-borders/">“Operation Sovereign Borders”</a> give the boat patrol a military flavour without the substance. There is no mortal enemy trying to kill Australian service personnel. There is no war.</p>
<p>Perhaps the media have been disarmed by the simplicity of the government’s action, seeing it as only one more exercise in <a href="https://theconversation.com/feeding-the-chooks-abbott-howard-and-media-management-18923">media management</a>. Perhaps they are just bored by the whole asylum seeker story. Perhaps now that Tony Abbott has shut down his political sound-and-light show around the issue, a press gallery addicted to the theatre of politics does not see a story there any more.</p>
<p>Whatever the cause, the media seem to have lost sight of the larger principle at stake. If governments can extend the boundaries of national security to include anything it finds embarrassing or difficult, then the public’s right to know really will be in peril.</p><img src="https://counter.theconversation.com/content/19322/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denis Muller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It is remarkable how complacent Australia’s media has been in response to the federal government’s brazenly cynical suppression of information about asylum seeker boat arrivals. There were a few indignant…Denis Muller, Senior Research Fellow in the Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/194062013-10-21T11:17:11Z2013-10-21T11:17:11ZLiberal secrecy a flawed strategy<figure><img src="https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Scott Morrison </span> <span class="attribution"><span class="source">AAP/Dan Himbrechts</span></span></figcaption></figure><figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/33383/original/tq9gk6g5-1382353377.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Scott Morrison has relished secrecy in his new role.</span>
<span class="attribution"><span class="source">AAP/Dan Himbrechts</span></span>
</figcaption>
</figure>
<p>Immigration minister Scott Morrison has embraced secrecy with indecent relish, and it is starting to get him into trouble.</p>
<p>His policy of announcing boat arrivals once a week, when they are transferred offshore, in the “Operation Sovereign Borders” news conferences is looking slightly ridiculous.</p>
<p>“We’re running a military-led border security operation,” Morrison told Sky today. From what we glean, those involved – military and civilian – are doing much what they were doing before.</p>
<p>It’s just that Morrison - and the government generally - has imposed a silence on all relevant authorities. Even the Australian Maritime Safety Authority, which used to speak directly to the media on rescue operations, cannot do so. Queries must go to Operation Sovereign Borders.</p>
<p>Morrison’s attempt at information minimisation is never going to work because a lot of people (casual observers as well as officialdom) know things and both mainstream and social media will rush to get the stories out. The minister risks looking like the man who holds a leaking hose and gets sprayed in the process.</p>
<p>His secrecy can backfire in another way. Morrison has made a hash of dealing with an incident at Manus Island that occurred late last week. He was caught short when asked about it at a Friday news conference – he didn’t intend to raise it - and later had to correct himself.</p>
<p>Today he complained about “hysterical claims” about the incident, which involved a clash between PNG police and defence force personnel. Failure to provide quick, accurate and full information have possibly led to exaggerated allegations.</p>
<p>Morrison’s general approach, including questions not being answered for “operational” reasons, smacks of arrogance. “Operational” is being given a absurdly wide definition. Refusal to disclose arrivals boat by boat makes even less sense considering boat numbers have declined.</p>
<p>The minister is desperately trying to deny any credit to Kevin Rudd for the reduction, but the former PM’s draconian PNG solution was the big strike, with the new government backing up with its own actions.</p>
<p>Morrison’s instruction that arrivals are now to be called “illegal maritime arrivals” rather than “irregular arrivals” is another sign of his attitude.</p>
<p>Put aside the argument about whether “illegal” is correct terminology (each side can make a case). Why would he bother? Mainly to try to attach, in the public mind, the label “bad” to these people. “I’m not going to make any apologies for not using politically correct language to describe something that I am trying to stop,” he declared today.</p>
<p>One would have thought he would have more to occupy his attention. With so many people on Manus Island and Nauru, Morrison is sitting on a powder keg. It’s a situation where anything could go wrong at any point, made more difficult by the fact that it will take a long time to clear this backlog of people, quite apart from future arrivals.</p>
<p>The Abbott government has already indicated in its brief time in office that it wants to exercise as much control over information as possible. The PM’s office, for example, is anxious to have broad control of ministerial media plans.</p>
<p>Last week also saw another example of official secrecy when the Treasury rejected a freedom of information request to release its “blue book” advice to the incoming government.</p>
<p>The decision has been made by the department – rather than the government - and can be appealed. Redacted advice came out after the last two elections. But Treasury noted in 2010 “the strong views” of Tony Abbott that “the release of incoming government briefs would contravene the Westminster conventions”.</p>
<p>Among factors against disclosure the Treasury gave last week were that: “It is imperative that the Treasurer be provided with the opportunity to consider and reflect on the contents of the incoming government brief as he prepares to implement the government’s election commitments.”</p>
<p>Shadow treasurer Chris Bowen says the opposition will pursue trying to get the information made public.</p>
<p>The emphasis on secrecy and control comes as new evidence shows the public’s distrust of government and political institutions.</p>
<p>Research out today tells a now familiar story. Monash University’s survey “Mapping Social Cohesion”, financed by the Scanlon Foundation found that between 2009 and 2013 trust in the government in Canberra “to do the right thing for the Australian people” had declined by 21 percentage points.</p>
<p>In 2009, 48% of respondents thought the government in Canberra could be trusted “almost always” or “most of the time”. In a big shift, only 31% had trust in 2010. By 2012 this was down to 26%; this year it was 27%.</p>
<p>The proportion believing government can be trusted “almost never” rose from 8% in 2009, to 15% in 2010, 20% in 2011 and 24% in 2012; in 2013, however, there was a fall to 19%.</p>
<p>Interestingly trust is related to age. It is relatively high among the young. In 2013 40% of those aged 18-24 believe the government in Canberra can be trusted “almost always” or “most of the time”. This fell to 26% among those 25-34%; 26% among those 35-44, 28% among those 45-54% and 27% in the 55-64 age group. Only 20% of those 65 and over thought the government could be trusted.</p>
<p>When people were asked about institutions, the lowest levels of trust were in trade unions, federal parliament and political parties.</p>
<p>The Australian distrust and disillusionment are in line with trends overseas, but are of concern nonetheless.</p>
<p>The Monash report says: “While issues of trust in Australia reflect global trends, Australia does not have the level of economic difficulties that characterise much of the developed world.</p>
<p>"Negative factors specific to Australia include the tone of Australian parliamentary debate, the extent of personal attacks on politicians in the media, and the fierce politicisation of climate change and asylum seekers issues.”</p>
<p>The latest survey of 1200 people was done in July and early August – before the change of government, reflecting a significant decline of trust in the Labor years, and before the revelations of over-claiming and rorting of parliamentary entitlements. Funds now paid back have varied from claims for attending political colleagues weddings, including by Abbott and now Attorney-General George Brandis to Liberal backbenchers Don Randall claiming for a trip from Perth to Cairns with his wife in relation to the purchase of an investment property.</p>
<p>Nothing is more likely to boost public cynicism in politicians. Although the guidelines are clear enough and don’t objectively require strengthening, there is an argument for doing so to increase public confidence in the system. On the other hand, people are so distrustful of politicians’ motives they’d probably view that totally cynically.</p>
<p><strong>Listen to Christopher Pyne on the Politics with Michelle Grattan podcast, available below, by rss and on iTunes.</strong></p>
<iframe src="https://www.podbean.com/media/player/audio/postId/4941381/url/http%253A%252F%252Fmichellegrattan.podbean.com%252F2013%252F10%252F21%252Fchristopher-pyne%252F" height="100" width="100%" frameborder="0" scrolling="no"></iframe><img src="https://counter.theconversation.com/content/19406/count.gif" alt="The Conversation" width="1" height="1" />
Immigration minister Scott Morrison has embraced secrecy with indecent relish, and it is starting to get him into trouble. His policy of announcing boat arrivals once a week, when they are transferred…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.