THE OFFICIAL SECRETS BILL 1997
The Hong Kong Human Rights Monitor concerns for the Government・s approach towards this new piece of legislation. While the discussions on the Official Secrets Act (：OSA；) were still at the Joint Liaison Group (：JLG；), the Government promised that whatever form that the localised OSA would take, it would be compatible with the Bill of Rights Ordinance (：BORO；). When the Official Secrets Bill was introduced however, the Government affirmed that it was exclusively a localisation exercise.
We feel that the Government has reneged on its promise. Some of the current provisions of the OSA contravene the BORO. Localisation of the OSA ad verbatim will therefore mean that the resulting Official Secrets Ordinance will be incompatible with the BORO. Thus, we would recommend that this Bills Committee be given the opportunity to conduct a review and reform exercise when scrutinising the Official Secrets Bill.In scrutinising this Bill, Members must be mindful of the balance to be drawn between guaranteeing the citizen・s right to freedom of expression and the protection of national security, public order, or public health or morals. Article 16 of the BORO guarantees the freedom to seek, receive and impart information. The Official Secrets Bill seeks to prevent persons from seeking and imparting information. While it is necessary that certain official information remain secret for the sake of national security, it is equally necessary that citizens be given access to governmental information in order to encourage open government. This is especially important in Hong Kong (and the future SAR) where the executive is appointed and thus unaccountable.
In approaching this question of balance, Members must consider three principles:
The provisions for the offence of spying in section 3 criminalise acts which do not necessarily amount to spying or espionage. This is evident from the judgment in Chandler v. DPP where the judges held that a non-violent demonstration aimed at immobilising aircraft at an RAF station for a period of six hours could lead to a conviction under section 1 of the UK Official Secrets Act (equivalent to section 3 of the Bill) on the grounds that the demonstration to place at a ．prohibited place・ and the action were ．for a purpose prejudicial to the safety or interests of the state・. Although this provision has since been mainly used to prosecute for espionage, the fact that it is open to other usage questions the clarity of the law.
Lack of Adequate Defences
If a person is charged under section 13 or section 17(2)(b)-(e) of this Bill, he is availed of only one general defence i.e. that he did not know or had no reason to believe that the information disclosed was information to which those sections applied. Section 13 relates to unlawful disclosures by members and former members of the security and intelligence services, and persons who are notified that the provisions of the section apply to them. Section 17(2)(b)-(e) concern unlawful disclosures of information on special investigations conducted through a warrant e.g. telephone tapping. This blanket prohibition on disclosure of such information will prevent persons from revealing information in good faith concerning events that are prejudicial to national security or to the public interest. For example, unlawful behaviour by members of the security or intelligence services and by law enforcement officers in carrying out their duties will not be able to be disclosed. This prohibition seems to us disproportionate especially given that the legitimate purpose in restricting access to this information is precisely to protect national security and public order.
If a person is charged under sections 14, 15, 16 or 17(2)(a), it will be a defence to prove that the unlawful disclosure was not ．damaging・. These sections relate to unlawful disclosure of information relating to security and intelligence, defence, international relations, information obtained in confidence from other states or international organisations, and information disclosure of which is likely to result in commission of offence or to impede prevention or detection of offences. What amounts to ．damaging・ is described in each of the sections. It must be noted however, that the descriptions are very broad and, although it is theoretically the jury・s decision as to whether disclosure is ．damaging・ according to the provisions, it is ultimately within the Government・s power to say whether the disclosure has been damaging since it is the party claiming that damage was caused. It has further been argued that the ．damaging・ disclosure test is not strict enough.
A major flaw in this Bill is that it does not provide a defence of prior publication i.e. if the information has already been disclosed elsewhere, then the charge should fail. The UK Government argued against including this as a general offence in the OSA 1989 on the grounds that the court will take prior publication into account in its assessment on whether the disclosure was ．damaging・. We believe however, that this defence merits being included in this Bill as a defence in its own right. It defies common-sense to punish someone for unlawfully disclosing information which is already freely available.
The ultimate failure of this Bill must be the absence of a public interest defence. Under the old 1911 Act, it was possible to run this defence though it was rarely successful. Under this Bill, the defence is very much excluded. If information reveals serious misconduct or serious harm to public order or public safety, then its revelation must be allowed without criminal penalties. The Government should not be able to restrict the disclosure of information if the value of the disclosure to the public interest outweighs the damage to the Government.
Press freedom will be seriously affected by this Bill. Under section 18 of this Bill, journalists who disclose information which has been disclosed to them unlawfully will be guilty of an offence. The only defences available are that the journalist did not know and had no reason to believe the information fell within one of the categories of protected information or that the disclosure was not ．damaging・. The effect of the Bill and this section would be to encourage the media to undertake voluntary censorship rather than to risk heavy criminal sanctions for disclosure. This in itself would act as a form of prior restraint.
Reversal of the Burden of Proof
As has been mentioned above, one of the main defences available to the accused is that he did not know or had no reasonable cause to believe that the disclosure would be ．damaging・. The burden on the prosecution is simply to show that ．damage・ as defined in the Bill has been done. After that, the burden of proof shifts back to the defence to prove lack of knowledge or cause to believe that the disclosure would have such consequences. This reversal of the burden of proof is undesirable especially in a criminal trial which involves restrictions on the freedom of expression.
Section 16 of the Bill relating to information on international relations contains the following presumption: disclosure of information obtained in confidence from another state or international organisation may be considered damaging if it is established as a fact that it is confidential or ：its nature or contents； are sufficient to establish that unauthorised disclosure may be damaging. Here, there is a presumption of damage without actual proof of damage being done or likely to be caused.
Section 3 of the Bill relating to spying contains a blatant presumption of guilt. The section allows the jury to draw an inference of guilt on the basis of evidence of the accused・s character, his conduct and circumstances of the case without having to consider whether any act prejudicial to the security of the UK or HK has been committed.
ConclusionThe Official Secrets Act 1989 has attracted much criticism since its enactment. Although it was described as a ：liberalising measure； when first introduced, it quickly became evident that the Act was designed to tighten up the legislation. One MP in Britain described the measure as ：replacing a large net with large holes (referring to the OSA 1911) with a small net with small holes；. In introducing this Bill, the Administration must be aware of the shortcomings that present OSA 1989 has in terms of its compatability with freedom of expression standards. We thus find it hard to understand how the Administration can justify confining itself to a strict localisation process given its commitment to ensuring legislation does not contravene the BORO. Download the paper