17 May 2006

Leaks - some possible offences

Due to teaching commitments, I'm not in a position to post a more detailed analysis but there are a couple of offences which are relevant: - Section 105A of the Crimes Act contains the following offence:

s105A. Corrupt use of official information— Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him in his official capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain for himself or any other person.

In this context, "corruptly" basically means a deliberate act knowing the act is not authorised and is not for a lawful purpose. There are some issues about whether, factually, some advantage accrued, what qualifies as an advantage (in principle, I see no reason why the "advantage" can't include "political" advantage?), and if no advantage accrued, whether the person can be convicted of attempting to commit the offence (again, in principle, I see no reason why not).

- There is also the complementary offence under s105B (but restricted to official information which is personal information):

s105B. Use or disclosure of personal information disclosed in breach of section 105A— (1) Every person is liable to imprisonment for a term not exceeding 7 years who,— (a) Having received personal information (being information that comes into that person's possession as a result of the commission of an offence against section 105A of this Act); and (b) Knowing that the information has been disclosed in contravention of that section, —uses or discloses that information to obtain, directly or indirectly, an advantage or pecuniary gain for that person or any other person.

Both offences require the Attorney-General’s consent for any prosecution.

There is a relatively good discussion of these offences in R v Leolahi (2000) 18 CRNZ 505.

- There is also another official information offence under the Summary Offences Act, but it is narrower and does not appear to be engaged in this case:

s20A.Unauthorised disclosure of certain official information— (1) Every person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,000 who knowingly communicates to any other person any official information as defined in section 78A(2) of the Crimes Act 1961 (not being official information that is publicly available) or delivers to any other person any object as defined in section 78A(2) of the Crimes Act 1961 knowing that he does not have proper authority to effect the communication or delivery and that the communication of that information or the delivery of that object is likely— (a) To endanger the safety of any person: (b) To prejudice the maintenance of confidential sources of information in relation to the prevention, investigation, or detection of offences; or (c) To prejudice the effectiveness of operational plans for the prevention, investigation, or detection of offences or the maintenance of public order, either generally or in a particular case; or (d) To prejudice the safeguarding of life or property in a disaster or emergency; or (e) To prejudice the safe custody of offenders or of persons charged with offences; or (f) To damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government economic or financial policies relating to— (i) Exchange rates or the control of overseas exchange transactions: (ii) The regulation of banking or credit: (iii) Taxation: (iv) The stability, control, and adjustment of prices of goods and services, rents, and other costs, and rates of wages, salaries, and other incomes: (v) The borrowing of money by the Government of New Zealand: (vi) The entering into of overseas trade agreements.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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