Override provisions

10.142         Some Commonwealth legislation includes provisions that purport to override the secrecy provisions in other legislation. For example, the Ombudsman Act 1976 (Cth) confers power on the Ombudsman to obtain information relevant to an investigation.^[142] The Act provides that:

Notwithstanding the provisions of any enactment, a person is not excused from furnishing any information, producing a document or other record or answering a question when required to do so under this Act on the ground that the furnishing of the information, the production of the document or record or the answer to the question would contravene the provisions of any other enactment (whether enacted before or after the commencement of the Prime Minister and Cabinet Legislation Amendment Act 1991).^[143]

10.143         Section 30 of the Auditor-General Act 1997 (Cth), while differently worded, is intended to have a similar effect. It provides that the operation of the Auditor-General’s information-gathering powers ‘is not limited by any other law (whether made before or after the commencement of this Act), except to the extent that the other law expressly excludes the operation of’ those sections of the Act relating to the Auditor-General’s information-gathering powers.^[144]

10.144         In Chapter 16, the ALRC recommends that the FOI Act should be amended to expressly override secrecy obligations in other legislation.^[145]

10.145         A general principle of statutory interpretation is that a later statute will, by implication, repeal an earlier, inconsistent statute. Override provisions of this kind represent an attempt to limit the ability of later legislation to impliedly repeal an earlier Act. However, courts generally do not interpret the override provisions in this way, on the basis that an earlier Act should not bind a parliament’s ability to pass later inconsistent legislation.^[146] Therefore, a secrecy provision enacted after the enactment of a statute with an override provision, such as the Ombudsman Act,arguably will still apply despite the override provision in the earlier Act.

10.146         It is, however, generally acknowledged that some Commonwealth legislation will override secrecy provisions in other legislation. For example, the Explanatory Material accompanying the Tax Laws Exposure Draft Bill states that there are a ‘number of non-taxation Acts which effectively override the secrecy and disclosure provisions contained in the [taxation secrecy] framework’.^[147] The Explanatory Material lists provisions of this kind—including provisions in the Ombudsman Act, Auditor-General Act, and Inspector-General of Taxation Act 2003 (Cth)—and notes that most of these provisions have the effect that, if a taxation officer is compelled to provide taxpayer information, they cannot be prosecuted for any offence contained within the tax secrecy framework.^[148]

10.147         In addition, a generally phrased ‘performance of duties’ exception in a specific secrecy offence will permit the disclosure of information to a body with information-gathering powers. As stated in the context of reg 35 of the now repealed Public Service Regulations 1935 (Cth):

If an officer is required, by a body having legal authority to obtain information compulsorily, to give information or disclose the contents of documents which he has in his official capacity, it is in the course of his official duty to obey the requirement.^[149]

Submissions and consultations

10.148         In a submission to this Inquiry, the IBA and the Commonwealth Ombudsman raised concerns that secrecy provisions prevented the provision of information to integrity and oversight agencies, such as the Ombudsman and the Auditor-General.

10.149         IBA noted that transparency and accountability were important to maintain stakeholders’ confidence in government. In this context, the IBA was concerned that:

Section 191 of the ATSI Act currently severely restricts the capacity of IBA to provide information, including to its portfolio Minister, agencies with responsibility for over-sighting Commonwealth administrative practices, such as the Ombudsman and Privacy Commissioner, Commonwealth agencies working in joint initiatives with IBA (such as FaHCSIA). IBA considers that the provisions are unduly restrictive and do not represent an appropriate balance between the need to protect confidential information and competing public interests.^[150]

10.150         The Commonwealth Ombudsman described a situation in which secrecy provisions prevented an agency providing information to it for the purposes of an investigation:

As part of our investigation, we sought information from the agency that was the subject of the complaint …

The agency refused to provide us with the information sought on the basis that it had obtained legal advice to the effect that the secrecy provisions of its enabling legislation overrode the Ombudsman Act. The legal advice included consideration of statutory interpretation principles as to whether a later Act repeals earlier inconsistent Acts and a commentary about resulting uncertainty in scenarios where some provisions of the Ombudsman Act providing for access to information might override the secrecy provisions of the other legislation but other provisions might not.^[151]

10.151         The Ombudsman concluded that:

Operating in an environment of uncertainty as to whether the access provisions of the Ombudsman Act might or might not override specific secrecy provisions in other Acts, is not conducive to this office fulfilling its statutory role of promoting good and accountable public administration. For this reason we would prefer a solution that makes it abundantly clear that our powers of access take precedence, unless the other Act specifically says that it overrides the Ombudsman Act.^[152]

ALRC’s views

10.152         The policy behind the override provisions in the Ombudsman Act and similar legislation is to facilitate the provision of all relevant information to integrity and investigatory agencies for the purposes of investigations. Specific secrecy offences should not preclude the provision of information to the Ombudsman, except on the basis of a clear parliamentary intention. Similar arguments apply in relation to the provision of information to other integrity agencies, such as the Auditor-General.

10.153         While there are benefits to using override provisions to indicate an intention that the provision of information to certain bodies or for particular purposes is not precluded by specific secrecy offences, the legal interpretation of such provisions has limited the effectiveness of override provisions, and accordingly, more may be needed to achieve this outcome. In particular, specific secrecy provisions should include exceptions that are broad enough to encompass the provision of information to bodies with power to obtain that information. As noted above, a generally expressed exception that permits the disclosure of information in the course of an officer’s functions and duties has been held to permit the disclosure of information in such circumstances.

10.154         The ALRC recommends that specific secrecy provisions should generally include an exception for disclosures in the course of an officer’s functions or duties.^[153] Where it is necessary for a performance of duties exception to be more narrowly confined—for example, to the performance of duties under particular legislation—consideration should be given to how an exception of this kind will interact with laws which confer a power on bodies such as integrity agencies to acquire information for the purposes of investigations. In Chapter 11, the ALRC recommends that the Guide to Framing Commonwealth Offences should include guidance on the drafting of secrecy offences.^[154] This should include guidance on the interaction between secrecy provisions and override provisions in other legislation.