ACCL Chris MERRITT 03/04/2009

http://www.theaustralian.news.com.au/business/story/0,28124,25281214-17044,00.html

THE Australian Council of Civil Liberties supports an attempt by whistleblower Allan Kessing to have the High Court rule on the validity of his criminal conviction.

ACC president Terry O'Gorman said he agreed with Mr Kessing's call for the federal Director of Public Prosecutions to lift its opposition to Mr Kessing's application to appeal to the High Court. "I think what he is asking the DPP is both reasonable and common sense," Mr O'Gorman said.

It would be consistent with the Commonwealth's prosecution policy for the DPP to drop its opposition and clear the way for the High Court to hear the case, he said.

"If there is an issue of public interest then that should be litigated," Mr O'Gorman said.

Mr Kessing wants the High Court to rule on the constitutional validity of the criminal penalties that federal law imposes for leaks from the public service.

Those penalties, which are in section 70 of the Commonwealth Crimes Act, impose a general prohibition against unauthorised disclosures.

There are no defences, regardless of whether the information made public is trivial or in the public interest.

If Mr Kessing's challenge to section 70 is upheld it would force the Government to introduce whistleblower laws that are far more liberal than those recommended last month by a parliamentary committee.

The Government is considering a scheme that would continue to impose the section 70 penalties for all leaks from the public service except those that concern serious and immediate threats to public health and safety.

Mr O'Gorman said what Mr Kessing was asking the DPP to do was no more than what is regularly done in other cases that raise important questions of law.

If the DPP dropped its opposition, the High Court would still need to determine whether Mr Kessing's case came within the principles governing grants of special leave, Mr O'Gorman said. He said it would not be appropriate for federal Attorney-General Robert McClelland to instruct the DPP to change its approach to the Kessing case because the DPP is independent.

Mr Kessing, a former Customs officer, was convicted of leaking reports outlining flaws in airport security and given a nine-month suspended prison sentence.

He has consistently asserted his innocence.