Chris Eichbaum is an Adjunct Professor in the School of Government at Victoria University of Wellington and a Senior Associate in the Institute for Governance and Policy Studies in the School.

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A nagging question of public interest

Dr Chris Eichbaum addresses some unanswered questions about what leaks are in the public interest, and why

On May 2, 1982 the Argentine Cruiser, General Belgrano, was sunk in a torpedo attack by the British submarine HMS Conqueror with the loss of 368 lives. In this attack, and the war that followed, more than 1000 Argentine and British lives were lost

One month before the Belgrano sinking, the Argentine armed forces invaded and occupied the Falklands (Malvinas), and Britain responded by sending a substantial taskforce to re-take the Islands. The attack on the Belgrano – authorised by the Prime Minister through the chain of command in place – took place outside a 200-mile exclusion zone surrounding the Falkland Islands.

The zone had been declared by the British Government following Argentina’s occupation of the Falklands in April. The British Government had warned that ships breaching the zone would be targeted under British rules of engagement.

Although the Belgrano was south of the exclusion zone, the Prime Minister, Margaret Thatcher, authorised the attack.

Thatcher later justified the action by claiming the ship had been sailing towards the Royal Navy taskforce. When inquiries were subsequently made about the sinking of the Belgrano, Clive Ponting, an adviser in the Ministry of Defence, was commissioned to research the matter.

Ponting found evidence that the Belgrano was outside the exclusion zone and had in fact turned away. He advised his Minister accordingly. Notwithstanding this, the Minister of Defence at the time chose to continue with the official line adopted in 1982.

Ponting anonymously forwarded his research to a parliamentary committee convened to investigate the Belgrano sinking. Ponting was arrested and tried under the Official Secrets Act. The case was prosecuted before a jury, and the trial judge, in his summing up, indicated that to the extent that the public interest was a relevant consideration, that was determined by the government of the day. The jury rejected this advice, and acquitted Ponting.

It is my considered assessment that the public interest was not advanced by the publication of it.

From this we get the “Ponting Principle”: Loyalty to one’s superiors is only provisional, loyalty to the public interest and to the democratic process are the ultimate obligations of public servants.

What needs to be emphasised about this is that it is not a licence to leak based on the fact that one might disagree with or have some moral reservations about an aspect of government performance or policy. At the core of the principle is a public interest test.

Turn the clock forward to New Zealand to the period leading up to the last General Election. A media outlet – as it happens Newsroom – is provided with information regarding an overpayment of superannuation entitlements to the Leader of the New Zealand First Party, Winston Peters. The information is sourced from a leak. It is then revealed that the Head of the Ministry of Social Development, Brendan Boyle, had been made aware of the issues involving Peters, and had consulted with the State Services Commissioner, Peter Hughes, over whether, under the ‘no surprises’ policy (or convention, or principle) that information should be shared with Ministers. The advice of the Solicitor-General was sought – one assumes that it supported the information being provided to Ministers, and it was. Ministers Paula Bennett (as Minister of State Services) and Anne Tolley (Minister of Social Development) were advised. Then we had the leak. Ministers denied any responsibility for it. Three separate inquiries – of a very forensic kind – found no evidence that the source of the leak was a public servant. We (being the general public) still don’t know who leaked the information. The journalist knows, and at least one of the editors of Newsroom knows. And let me be very clear, there is no suggestion (with the Nicky Hager, Dirty Politics, debacle fresh in my mind) that they should be required to divulge the name of the ‘informant’.

But we have legal proceedings. Both Boyle and Hughes are named as respondents, together with their Ministers at the time. Political commentator Matthew Hooton claims that the actions of Boyle and Hughes is the real story here. Who leaked is not the issue – he asserts that once the information was provided to Ministers it was guaranteed to leak (which would mean that the relevant Ministers are not telling all they know). For my part I am not convinced that Ministers should have been provided with the information. Then again, I haven’t seen the advice from the Solicitor-General which informed that decision. This is an issue, but in my view, it is secondary. Moreover, while I owe no duty to either Hughes or Boyle, having never met the latter and indeed having at times quite publicly ’crossed swords’ with the former, I suspect I am not the only one who perceives a cluster of attacks on the State Services Commissioner.

But back to the ‘public interest’ test. Newsroom Editor Tim Murphy says it is wrong to suggest that ‘the informant’ leaked the information with any malicious intent. He will know. My issue is that if there was no malicious intent, what public interest was advanced by the publication of the leaked material? In the case of Dirty Politics, Rawshark leaked information. Hager was clearly convinced that the public interest was to be served by the publication of it. Dirty Politics was published. It is my considered assessment that the public interest was advanced by the publication of it.

In the case of the Peters information, the publication of the material – and this need not have been the motivation of those who published it – advanced partisan interests. Sure, whether Peter Hughes and Brendan Boyle were justified in passing information to Ministers is a legitimate question. But the more significant and relevant question for me is whether the person who leaked the information (the ‘informant’) satisfied the Ponting Principle in doing so. I suspect not.