Background

1.1          On 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) 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 through providing appropriate access to information. The Terms of Reference are set out at the front of this Report.

1.2          In the course of this Inquiry the ALRC has identified 506 secrecy provisions in Commonwealth legislation, including 358 criminal secrecy offences. These have been introduced at different times, using different language and often with widely ranging penalties. The ALRC has considered whether these secrecy provisions are comprehensive, consistent and workable in the context of the need for openness and accountability in the Australian Government. In particular, the ALRC has identified the need to reform of the general secrecy offences in ss 70 and 79(3) of the Crimes Act 1914 (Cth).

1.3          The ALRC has also taken into account the need to share information within the Australian Government and more broadly. This is a particular focus of the ALRC’s consideration of the ongoing need for specific secrecy provisions, and the development of information-handling policies and guidelines for people who handle Commonwealth information.

1.4          The ALRC’s own legislation sets out certain parameters that affect policymaking and the formulation of recommendations. Section 24(1) of the Australian Law Reform Commission Act 1996 (Cth) requires the ALRC, in performing its functions, to ensure that the laws, proposals and recommendations it reviews or considers:

(a) do not trespass unduly on personal rights and liberties or make the rights and liberties of citizens unduly dependent on administrative, rather than judicial, decisions; and

(b)  are, as far as practicable, consistent with the International Covenant on Civil and Political Rights.

1.5          The ALRC is also required to have regard to all of Australia’s international obligations that are relevant to the matter which is the subject of an inquiry.^[1]

1.6          This Inquiry coincides with increased public attention on protections for ‘whistleblowers’ making disclosures in the public interest. In February 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs released its report, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector. The Standing Committee recommended that a Public Interest Disclosure Bill be introduced to Parliament as a matter of priority.^[2] As explained by the Chair of the Committee, Mark Dreyfus QC MP, the recommendations in the report

reflect what the Committee considers to be primary legislative priorities. They promote integrity in public administration and support open and accountable government. They are informed by the view that legislation should be based on clear commonsense principles to provide reasonable certainty to any person reading it. Yet legislation alone is not sufficient. A shift in culture needs to take place to foster a more open public sector that is receptive to those who question the way things are done.^[3]

Previous calls for a review of secrecy provisions

1.7          The consistency and workability of Commonwealth secrecy provisions has been considered in a number of prior reviews, leading up to and prompting this Inquiry.

1.8          In its report supporting the introduction of the Freedom of Information Act 1982 (Cth) (FOI Act), the Senate Standing Committee on Legal and Constitutional Affairs urged the Australian Government to reconsider the general secrecy offence in s 70 of the Crimes Act, as it was ‘implausible to enact a presumption of openness while leaving untouched provisions like section 70 that provide the legal foundation for the system of discretionary secrecy that presently exists’.^[4]

1.9          In 1983, the Human Rights Commission reviewed the Crimes Act and found that s 70 could operate in a manner inconsistent with the freedom of expression contained in art 19 of the International Covenant on Civil and Political Rights.^[5]

1.10       In 1991, a committee chaired by Sir Harry Gibbs undertook a review of Commonwealth criminal law, including secrecy offences.^[6] The Committee concluded that:

It is undesirable that the sanctions and machinery of the criminal law should be applied in relation to the unauthorised disclosure of all forms of official information and this should be avoided if possible.^[7]

1.11       In 1995, the House of Representatives Standing Committee on Legal and Constitutional Affairs considered the operation of ss 70 and 79 of the Crimes Act and noted the longstanding calls for reform.^[8] The Committee identified a number of problems with the sections, including a lack of precision in the drafting.^[9] It also noted the lack of consistency in drafting and penalties across the secrecy provisions in other Commonwealth statutes.^[10] The Committee recommended that existing secrecy provisions should be rationalised and consolidated into a general offence within the Crimes Act.^[11]

1.12       The ALRC itself has commented on secrecy laws in three prior reviews. First, in the review of freedom of information laws in 1995, the ALRC and the Administrative Review Council recommended that a thorough review of all Commonwealth secrecy provisions be conducted to ensure that such provisions did not prevent the disclosure of information that was not exempt under the FOI Act.^[12]

1.13       Secondly, in 2004, in Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), the ALRC recommended that:

The Australian Government should review all legislative and regulatory provisions giving rise to a duty not to disclose official information—including in particular regulation 2.1 of the Public Service Regulations [1999 (Cth)]—to ensure the duty of secrecy is imposed only in relation to information that genuinely requires protection and where unauthorised disclosure is likely to harm the public interest.^[13]

1.14       Finally, in 2008, in For Your Information: Australian Privacy Law and Practice (ALRC 108), the ALRC recommended that:

The Australian Government should undertake a review of secrecy provisions in federal legislation. This review should consider, among other matters, how each of these provisions interacts with the Privacy Act [1988 (Cth)].^[14]

Matters outside this Inquiry

1.15       In reviewing Commonwealth secrecy laws, the Terms of Reference ask the ALRC to consider ‘relevant laws and practices relating to the protection of Commonwealth information’. The protection of Commonwealth information can encompass matters as varied as how files and documents are physically protected; whether classification processes are appropriate and effective; and the extent to which Commonwealth officers can be compelled to produce Commonwealth information in the course of investigations or in legal proceedings.

1.16       The focus of this Inquiry is on statutory provisions concerning the secrecy and confidentiality obligations of individual Commonwealth officers (or other people nominated in legislation) in relation to Commonwealth information. Review of the government’s larger information security and management systems is outside the scope of this Inquiry.

1.17       In ALRC 98, the ALRC considered the protection of classified and security sensitive information in the context of court and tribunal proceedings.^[15] The ALRC recommended the introduction of a new National Security Information Procedures Act, which would apply to all Australian courts and tribunals. Many of these recommendations were implemented by the enactment of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

1.18       The extent to which Commonwealth officers can be compelled to provide information in the course of investigations or legal proceedings is not a focus of this Inquiry. The ALRC’s approach in this Inquiry is informed by the emphasis in the Terms of Reference on the increased need to share information ‘within and between governments and with the private sector’—namely, the business of government, rather than the business of courts and tribunals.

Timeframe

1.19       The timeframe for the Inquiry is set by the Terms of Reference and the necessity to embark upon a thorough and staged process of consultation. The Terms of Reference initially stipulated a reporting date of 31 October 2009. In order to ensure that the views of key stakeholders could be considered fully, the ALRC requested, and the Attorney-General granted, an extension until 11 December 2009.^[16]