Pine Gap, a secret US installation in Australia
by Mary W Maxwell, LLB
What if you want to tell the truth, or “spill the beans”’ about something that you feel should be public knowledge, but are worried that you might be acting disloyally toward your employer?
I am writing this article in the context of the peculiar event of January 19, 2017 in which a man drove his car deliberately into pedestrians in Melbourne, killing some of them.
GumshoeNews.com received an extraordinary number of hits on its January 22 article Who Is The “Blue Man” Waving Instructions Before The Killing Spree?
It appears that may people are looking for the truth of what happened. They are asking Was anyone other than “Mad-man Jimmy” involved? Were the three silvery cars, and a man in a blue jumper, in cahoots with the killer? Are those silvery cars ASIO?
In the Comments to that article I advised anyone who felt bound by “the Official Secrets Act” to NOT feel bound by it if this would prevent them from ratting on someone who is using government disguise to perform horrendous crimes.
Oz does not have a law with the exact name Official Secrets Act, (as does the United Kingdom). However there are laws that forbid various public servants to reveal certain things they picked up from government documents.
Indeed the Commonwealth Consolidated Acts includes statutes on the revealing of secrets – and even on the receiving of those revelations from someone who is not supposed to reveal them. Sec 79 of the Crimes Act 1914 (which is still in force) says:
(5) If a person receives any sketch, plan, photograph, [blah blah] or information, knowing or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of section 91.1 of the Criminal Code … he or she commits an indictable offence unless he or she proves that the communication was contrary to his or her desire.
Penalty: Imprisonment for 7 years.
Misprision (Rhymes with Vision)
In my Comments, I relied on misprision. This is a common law concept whereby the citizen has a responsibility to report crime (felonies, not misdemeanors) and can be published if he does not report.
(Just think how many times you have failed to report crimes that you know about. Wow, you could be punished a lot for that!)
In the US the law is statutory where the offense is federal:
Per 18 USC 4:
“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”
In Oz, if someone signs a promise not to reveal Official Secrets he may thereby feel bound to protect criminals in government. But in doing so he would be courting a nice big criminal record for himself, right?
To find out if Australia (either Commonwealth or states) has a statutory law of misprision, you can go to the website austlii.edu.au, which is the Australasian Legal Information Institute run jointly by University of Technology, Sydney and University of New South Wales Faculty of Law.
There you will find that misprision is not statutory law but common law. At austlii I see it referred to, for example, in a 2012 NSW case, TB v State of New South Wales.
I also see misprision figuring into an article in a Tasmanian law journal that has the interesting title “The Criminal Suspects Right to Silence: A Hallowed Shibboleth?” by Gim Teh.
We can be assured by a Victorian case, Sykes v DPP, that made it to the House of Lords. There, a unanimous decision of the judges held that the law of misprision still exists. (That was a 1963 case but nothing has changed on misprision since then.)
How Does One Law Override Another?
I had declared “Anyone who feels bound under the Official Secrets Act to cover-up a crime of government is of course relieved of that obligation as there can never be a law that says crime is acceptable. Sorry but that’s the way it is, guys.”
You can see that I meant something more than misprision as my guide.
I had in mind that law comes from the community and if the community clearly wants a fundamental law to stay in force, those who would like to sneak in a contradictory one it had better watch out.
The voice of genius on this belongs to Chief Justice Marshall of the US Supreme Court writing in Marbury v. Madison in 1802. He was really feeling his cheerios on that occasion and I think you would like to read his main idea.
It may seem that he is only talking about the relationship of constitutional law to lesser law, but it’s much deeper than that.
I believe Marshall’s message is: the society knows what it wants (the forbidding of murder, for example). Law belongs to all of us, so don’t think that if a bunch of legislators sit there and come up with something we don’t want that it is now authoritative. We are the authority. Here is the quote from Marbury v. Madison:
…The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States;
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.
The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme,… they are designed to be permanent….
…To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained… ? Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void…. This theory is… one of the fundamental principles of our society….
…It is emphatically the province and duty of the judicial department to say what the law is….We must never forget that it is a constitution we are expounding…intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.
…[I]t is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts… Why otherwise does it direct the judges to take an oath to support it?… How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
I say let the above make every judge happy and secure. And let it make every cop who knows something about funny business in Melbourne on January 19, come forward and be praised by all citizens.
- Mary W Maxwell is the author of Marathon Bombing: Indicting the Players
Photo credit: smh.com.au