Secrecy laws and open government

Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.

On 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission to conduct an Inquiry into options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government by providing appropriate access to information. (See Terms of Reference.) The lack of consistency in secrecy provisions has been identified in a number of prior reviews, leading up to and prompting this Inquiry—including three prior reviews by the ALRC:

• Open Government: A Review of the Federal Freedom of Information Act 1982 (1995) (ALRC Report 77);
• Keeping Secrets: The Protection of Classified and Security Sensitive Information (2004) (ALRC Report 98); and
• For Your Information: Australian Privacy Law and Practice (2008) (ALRC Report 108).

The ALRC was also asked to consider the increased need to share information within and between governments and with the private sector.

In the course of the Inquiry, the ALRC undertook a comprehensive mapping exercise to catalogue the secrecy provisions currently on the federal statute book. The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences. This mapping exercise provided a sound evidence base for the ALRC’s analysis of secrecy provisions and the recommendations for reform in final report.

Key recommendations

Secrecy Laws and Open Government in Australia (ALRC Report 112) made 61 recommendations for reform.

One of the ALRC’s key recommendations is that general secrecy offences in the Crimes Act 1914 (Cth) should be repealed and replaced with a new general secrecy offence in the Criminal Code (Cth). This provision should criminalise behaviour that harms essential public interests, such as: the security, defence or international relations of the Commonwealth; the prevention, detection, investigation, prosecution or punishment of criminal offences; the life or physical safety of any person; or the protection of public safety.

The ALRC found that there is still a need for specific secrecy offences tailored to the needs of particular agencies or to the protection of certain kinds of information. In the interests of consistency and simplification, the ALRC recommended a set of principles to guide the creation of new offences and the review of existing offences.

The ALRC considered that secrecy provisions that impose administrative penalties on public sector employees have a central role to play. However, the ALRC recommended that the scope of the principal administrative secrecy provision in the Australian Government—reg 2.1of the Public Service Regulations 1999 (Cth)—should be narrowed to only apply to disclosures that are ‘reasonably likely’ to result in such prejudice. This reform recognises the importance of promoting information sharing in appropriate circumstances.

The ALRC also mades a number of recommendations to promote an effective information-handling culture within Australian Government agencies, and a role for the proposed new Office of the Information Commissioner.

The Executive Summary in ALRC Report 112 contains an overview of the key findings and recommendations in the report.

Implementation

ALRC Report 112 was tabled in March 2010 and has not, as yet, been implemented.