Secrecy Laws and Open Government Report—An Update

Professor Rosalind Croucher,** President, Australian Law Reform Commission. 7^th Annual Public Sector In-House Counsel Conference 2011, 29 July 2011

Abstract: This paper discusses the inquiry conducted by the Australian Law Reform Commission (ALRC) into Commonwealth secrecy laws: Secrecy Laws and Open Government in Australia (ALRC Report 112) tabled in March, 2010. It considers how, from a law reform perspective, the ALRC approached the challenge of reviewing the wide range of secrecy provisions on the Commonwealth statute books and working out a policy framework for the law reform recommendations proposed.

1. Introduction

On 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the 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 by providing appropriate access to information. The ALRC was also asked to consider the increased need to share information within and between governments and with the private sector. We delivered the report in December 2009. In this paper I will look at how we approached the challenge posed in the inquiry and, in particular, the development of an appropriate policy framework for the law recommendations we proposed.

Secrecy laws do not, of course, exist in isolation, but rather as part of a broader information management spectrum. Openness of information and protection of information can be seen as sitting at opposite ends, with particular secrecy provisions situated at different points in the spectrum—at times emphasising protection; at times facilitating information handling, sharing and disclosure.

The appropriate handling of information is integral to the effective functioning of government. Secrecy laws are one element in the broader information handling framework across government—including elements such as security classification systems, information-sharing regimes, and agency-specific information-handling policies. As part of the spectrum of information handling in the public sector, secrecy laws may serve a legitimate role in generating personal responsibility for the handling of Commonwealth information.

Secrecy laws that impose ‘extreme’ 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.

Examples keep popping up. Let’s take a recent one—Julian Assange, described in Wikipedia as:

an Australian publisher, journalist, software developer and Internet activist. He is the editor in chief of WikiLeaks, a whistleblower website and conduit for worldwide news leaks, with the stated purpose of creating open governments. Assange worked as a computer programmer and was a hacker during his youth. He has lived in several countries and has made public appearances in many parts of the world to speak about freedom of the press, censorship and investigative journalism.

On 28 November 2010, WikiLeaks and its five international print media partners (Der Spiegel, The New York Times, Le Monde, The Guardian and El País) began publishing US diplomatic cables. That has got Assange into serious trouble and placed him on the front pages of many papers. One described him as ‘the weirdest Bond villain ever, putative head of the WikiLeaks collective, and possibly the only celebrity Australian not to have an invite from Oprah’.[2]

There are many issues involved here.  How did he get this information that was ‘leaked’? Imagine the leaker was an Australian Commonwealth officer. Would this attract a secrecy provision? What about Mr Assange and the publishing of the information on the WikiLeaks site? Would—or should—the original leaker be guilty of a criminal offence?  And Mr Assange? And can he be compelled to reveal his sources?

These are typical of the kinds of questions that lie behind a consideration of secrecy laws. The focus is not on the protection of information, as such, but when it is appropriate to punish a person for disclosing it—and with a criminal penalty.

2.        Background to the review

The consistency and workability of Commonwealth secrecy provisions has been considered in a number of prior reviews, leading up to and prompting the ALRC Inquiry. 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’.[3]

A number of problems had been identified, including, for example:

• inconsistency with the freedom of expression contained in art 19 of the International Covenant on Civil and Political Rights;[4]
• the potentially indiscriminate operation of secrecy provisions targeted at all unauthorised disclosures;^[5]
• lack of consistency in drafting and penalties across the secrecy provisions in other Commonwealth statutes.[6]

The ALRC had also 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.[7]

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.[8]

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)].[9]

Such calls led to the ALRC secrecy inquiry.

3.       Law reform process

The law reform process involves a number of steps: sizing up the problem within the constraints of the Terms of Reference; defining the conceptual/policy landscape in which the development of law reform recommendations will occur; consultation, consultation, consultation; and, finally, the report, containing recommendations for reform.

3.1       Mapping the provisions

A first step in the ALRC’s work was to size up the problem. How many secrecy provisions did we have to deal with?  Where were they?  What did they look like?  To answer these questions, the ALRC undertook a comprehensive mapping exercise to catalogue the secrecy provisions currently on the federal statute book. I must say that the wonderful interns we routinely recruit contributed significantly to this exercise, beginning with statutes beginning with ‘A’—eg ‘A New Tax System etc’. The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences—a ‘plethora’ of provisions.[10] This mapping exercise provided a sound evidence base for the ALRC’s analysis of secrecy provisions and the recommendations for reform in this Report.

A number of key issues emerged—including the catch-all nature of some of the provisions and an over-reliance on criminal sanctions. The ALRC also identified considerable inconsistency in the framing and elements of specific secrecy provisions, reflecting their introduction at different times, using different language and often with widely ranging penalties. For example,[11] the unauthorised disclosure of information relating to the affairs of a person in some cases attracts a low-level fine of $550,[12] and in others a term of imprisonment for two years and a fine of $13,200.[13] Disclosing information about the identity of a person in the national witness protection program carries a maximum penalty of 10 years imprisonment,[14] whereas publishing information that discloses the identity of an agent or officer of the Australian Security Intelligence Organisation carries a maximum penalty of imprisonment for one year—even in circumstances where such publication could endanger the life of that agent or officer.[15] Commonwealth officers may also face administrative action for breach, ranging from reprimands to dismissal.

3.2       Defining the conceptual landscape

Another fundamental task is identifying the conceptual landscape in which the development of law reform recommendations will be located. The concept of secrecy as a mechanism for protecting government information, on the one hand, and the commitment to openness of government, on the other, reflect certain historical understandings of the relationship between a government, citizens, officials and information.

The secrecy of government information has a long history. Part-time ALRC Commissioner, the Hon Justice Susan Kenny provides an excellent discussion of this important background in a paper presented at the National Information Law conference in Canberra in March this year, and published on the ALRC website.[16]

Two principal rationales for secrecy in the modern context are the Westminster system of government and the need to protect national security. The Westminster system was premised on secrecy. As summarised in 2008 by the Independent Review Panel examining the Freedom of Information Act 1992 (Qld):

Secrecy had been an essential ingredient of the system—secrecy to protect the deliberations of the cabinet, secrecy to protect the advice proffered by public servants to their ministers, secrecy to hide what happened within the public service. The democratic element that allowed this closed system to function was provided by the concept of ministerial responsibility—ministers were responsible, collectively and individually, directly to parliament and indirectly to the electorate, for what the government did, and for what their departments did.[17]

In this way, the conventions of the Westminster system were seen to demand official secrecy. For example, the doctrine of collective ministerial responsibility was said to depend to a large extent on the secrecy of Cabinet deliberations and documents. Further, the confidential provision of advice to ministers by public servants is linked to the principle that the government of the day is served by a professional and politically neutral public service carrying out the instructions of the elected government.[18]

For most of Australia’s history, ‘official secrecy has been the legislatively enforced norm’.[19] The first Australian secrecy provision, introduced in the colony of Victoria in 1867, ‘set the pattern for the various public services of Australia’, requiring that:

no information out of the strict course of official duty shall be given directly or indirectly, by any officer without the express direction or permission of the responsible Minister.[20]

The first Commonwealth secrecy provisions were passed during the initial session of the Australian Parliament in 1901.[21] Their primary focus was the protection of national security information.[22]

Periods of international conflict have precipitated an awareness of the need for, and experience of, secrecy provisions. In 1960, for example, amendments were made to s 70 of the Crimes Act 1914 (Cth),[23] inspired in part by the anti-communist climate of the Cold War.[24] The amendment, which extended the reach of s 70 to former Commonwealth officers, was ‘just one of many secrecy provisions inserted or strengthened in legislation after the war’.[25]

The increase in the size and role of government in the period following World War II, combined with technological advances that increased the ability of governments to deal with large amounts of information, has had a significant impact on the relationship between citizens and government.[26] And the increased reach of government was matched by a growth in secrecy provisions—‘a reflection of the increase in personal and commercially sensitive information collected by the government’.[27] In addition, the Privacy Act 1988 (Cth) was enacted to ensure that the government appropriately handled and protected personal information. Both reflected the impetus to protect certain information in the hands of government.

As the reach of government expanded, however, there was increasing pressure to ask questions about what government was doing. This led to a shift in attitude to official secrecy in the 1960s with the development of a new philosophical and practical approach to government, leading to the description ‘open government’.[28] The move to more open government was reflected in the development of ‘freedom of information’ (FOI) and related administrative laws.

In 1970, the then Leader of the Opposition, the Hon Gough Whitlam MP, noted with concern that ‘excessive secrecy has become commonplace in governmental decision making’.[29] Introduction of FOI legislation became an issue in the lead up to the 1972 federal election,[30] at which time the Australian Labor Party claimed that the government’s monopoly of knowledge had ‘led to bad decisions and bad government’.[31]

The introduction of the Freedom of Information Act 1982 (Cth) formed part of a package of administrative law reforms.[32] These legislative reforms aimed to facilitate effective public administration while at the same time safeguarding the civic rights of the individual citizen.[33] As Associate Professor Moira Paterson has noted, FOI laws ‘form a vital part of a broader network of laws, both formal and informal, which affect the overall transparency of the executive branch of government’.[34]

The importance of access to information to the accountability of government for its actions was reiterated by Senator the Hon John Faulkner, the then Cabinet Secretary and Special Minister of State, in proposing reforms to the FOI framework in March 2009:

There is a growing acceptance that the right of the people to know whether a government’s deeds match its words, to know what information the government holds about them, and to know the information that underlies debate and informs decision-making is fundamental to democracy.[35]

The relationship between FOI and secrecy provisions—which appear to stand in direct juxtaposition to each other—was a key issue in the ALRC’s secrecy inquiry.

The Terms of Reference acknowledge both the public interest in open and accountable government and the increased need to share Commonwealth information within and between governments and with the private sector. A seamless flow of information within and between governments is referred to as a ‘whole of government’ approach—‘the public administration of the future’.[36] This flow of information, however, may pose particular problems in relation to certain sensitive information, for example, personal information. In the context of such information, the concern is not about ‘open government’, but rather about the appropriate protection of the information itself in the hands of government officers.

Wherever information-sharing objectives arise, a parallel concern is the role of secrecy provisions, or other mechanisms, to protect that information in appropriate circumstances. Ensuring that channels for the communication of protected information are built into, or complement, secrecy provisions may be crucial to achieving an appropriate balance between protecting information and providing effective service delivery. As noted by the Department of Human Services in relation to the wide range of personal information collected and managed by their agencies:

While the appropriate protection of personal information about customers must, of course, remain paramount, it is essential that secrecy provisions complement and assist, rather than frustrate, improvements to service delivery.[37]

While open government was central to the inquiry, another key principle of relevance was freedom of expression. The International Covenant on Civil and Political Rights (ICCPR) includes art 19:

1.       Everyone shall have the right to hold opinions without interference.
2.       Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3.       The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

1.  
   1.       For respect of the rights or reputations of others;
   2.       For the protection of national security or of public order (ordre public), or of public health or morals.[38]

The Human Rights Committee of the United Nations (Human Rights Committee) has commented that the right to freedom of expression includes:

Not only freedom to impart information and ideas of all kinds but also freedom to seek and receive them regardless of frontiers and in whatever medium, either orally, in writing or in print, in the form of art, or through any other media of his choice.[39]

The right set out in art 19(2) is qualified by the provisions in art 19(3)—that freedom of expression may be subject to ‘certain restrictions’. How do secrecy provisions—that appear to restrict freedom of expression—sit within the framework of art 19? The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights state that any such limitations on the ICCPR must: be recognised by the relevant article of the ICCPR; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim.[40] The principles also state that the expression ‘public order’, as used in the ICCPR, ‘may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’. This expression is not limited to criminal law enforcement in the context of the ICCPR and includes, for example, respect for human rights.[41]

By restricting Commonwealth officers and others from communicating government information, secrecy provisions limit freedom of expression in certain respects. Their legitimacy, therefore, must be tested internationally against the backdrop of the ICCPR, and domestically against the implied freedom of political communication. In what have been called the ‘free speech cases’, the High Court has held that the system of representative and responsible government established by the Australian Constitution implies a commitment to the freedom of political communication.[42] This sets the backdrop against which the validity of secrecy provisions must be tested.

In 2003, the matter arose in Bennett v President, Human Rights and Equal Opportunity Commission (Bennett).[43] Peter Bennett, a public servant employed by the Australian Customs Service and President of a registered industrial organisation representing customs officers, publicly advocated the establishment of a Single Border Protection Agency and commented in the media on other customs matters. The Chief Executive Officer of Customs issued Bennett with a formal direction not to make comments in the media ‘about public business or anything of which you have official knowledge’.[44] After Bennett made comments in a radio interview about proposed cuts to waterfront officers, he was disciplined for breach of the now repealed reg 7(13) of the Public Service Regulations 1999 (Cth):

An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

In Bennett,Finn J held that reg 7(13) was inconsistent with the implied freedom of political communication and declared it to be invalid. He held that, while there may be public interests, or ‘legitimate ends’, that justify the burden that secrecy provisions impose on freedom of political communication—including national security, cabinet confidentiality, protection of privacy and the maintenance of an impartial and effective public service—a ‘catch-all’ provision that did not differentiate between the types of information protected or the consequences of disclosure went too far:

Official secrecy has a necessary and proper province in our system of government. A surfeit of secrecy does not. It is unnecessary to enlarge upon why I consider the regulation to be an inefficient provision other than to comment that its ambit is such that even the most scrupulous public servant would find it imposes ‘an almost impossible demand’ in domestic, social and work related settings …

The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community—information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operation, practices and policies of executive government.[45]

Following the decision in Bennett, reg 7(13) of the Public Service Regulations was repealed and replaced by reg 2.1.[46] The latter is expressly limited to situations in which it is reasonably foreseeable that the disclosure of official information could be prejudicial to the effective working of government.[47] The constitutional validity of this new regulation was challenged in R v Goreng Goreng.[48] In that case, Refshauge J of the Supreme Court of the Australian Capital Territory considered that, unlike former reg 7(13), reg 2.1 was not a ‘catch-all’ provision, but much more limited and targeted to the protection of a legitimate public interest in the effective working of government.[49]

Within this broad conceptual context, the challenge for the ALRC was to strike the right balance between the public interest in open and accountable government and the public interest in maintaining the confidentiality of some government information. The goal, then, was to identify the proper place, if any, for secrecy provisions in the context of a system of open and accountable government—consistent with Australia’s obligations under international law.

In particular, we were also mindful that regulatory theory cautions against the over-use of criminal penalties. Criminal penalties sit at the top of the ‘enforcement pyramid’ developed by Professors Ian Ayres and John Braithwaite to describe a model regulatory approach.[50] Under the ‘enforcement pyramid’ model, breaches of increasing seriousness are dealt with by penalties of increasing severity, with the ultimate penalties—such as imprisonment—held in reserve. Braithwaite has described the operation of the pyramid in the regulatory environment as follows:

My contention is that compliance is most likely when the regulatory agency displays an explicit enforcement pyramid … Most regulatory action occurs at the base of the pyramid where initially attempts are made to coax compliance by persuasion. The next phase of enforcement escalation is a warning letter; if this fails to secure compliance, civil monetary penalties are imposed; if this fails, criminal prosecution ensues; if this fails, the plant is shut down or a licence to operate is suspended; if this fails, the licence to do business is revoked … The form of the enforcement pyramid is the subject of the theory, not the content of the particular pyramid.[51]

Although this model was developed for the corporate regulatory environment, the principles of the enforcement pyramid model are broadly applicable to the issues under consideration in this Inquiry. At the bottom of the enforcement pyramid lie the techniques described in Chapters 14 and 15 of the report, which are designed to foster a culture in which Commonwealth information is handled effectively—such as agency policies and guidelines, staff training and development, and secrecy oaths and affirmations. Where these techniques fail to prevent unauthorised disclosure, administrative penalties, or general law or contractual remedies may be available. Where the disclosure is more serious—for example, where the disclosure has the potential to cause serious harm or is intended to cause harm—criminal penalties may be applied.

3.3       Consultation

The Terms of Reference indicated that the ALRC was ‘to identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies and private sector bodies’. One of the most important features of ALRC inquiries is the commitment to widespread community consultation.[52] The nature and extent of this engagement is normally determined by the subject matter of the reference—particularly whether the topic is regarded as a technical one, of interest largely to specialists in the field, or is a matter of interest and concern to the broader community.

During the course of this Inquiry the ALRC conducted 35 meetings with a number of Australian Government agencies, academics, judges and members of the legal profession. The consultations were designed to capture the views of a wide cross-section of interested stakeholders.[53]

Two community consultation documents—an Issues Paper and a Discussion Paper[54]—were produced before proceeding to the final Report with recommendations for reform. In addition, to facilitate communication about the nature and focus of this Inquiry, the ALRC released an overview document, Review of Secrecy Laws—Inquiry Snapshot, in February 2009, written in plain language and providing ready access to information about the Inquiry.

The ALRC received 46 submissions in response to the Issues Paper and 38 submissions in response to the Discussion Paper.[55] A number of individuals, groups and federal bodies made submissions to both IP 34 and DP 74. The ALRC utilised two additional strategies for consultation—an online forum and a national phone-in. The online forum attracted comments that included matters about agency culture; the security classification system; the application of tax secrecy provisions to information about public companies; internet censorship proposals; the need for, and problems in devising, effective information and risk management systems; and who should be subject to secrecy obligations. During the national phone-in the ALRC received 34 calls expressing concerns about matters such as: inappropriate revelations of personal information or perceived breaches of privacy; difficulties in gaining access to personal information, for example, for the purpose of family reunion; problems with security classifications and obtaining security clearances; cultures of secrecy in agencies; the need for whistleblower protection; difficulties in the sharing of information amongst agencies; and the draconian nature of s 70 of the Crimes Act.

4.       The reform framework  

4.1       Principles

To underpin the recommendations for reform, the ALRC developed what we consider to be a new and principled framework for secrecy provisions, striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential. We constructed a conceptual framework based on the following principles, that:

• administrative and disciplinary frameworks play the central role in ensuring that government information is handled appropriately, and that every person in the information chain understands their responsibilities in respect of that information;
• criminal sanctions should only be imposed where they are warranted—when the disclosure of government information is likely to cause harm to essential public interests—and where this is not the case, the unauthorised disclosure of information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies;
• there is a continuing role for properly framed secrecy offences—both general and specific—in protecting Commonwealth information, provided that they are clear and consistent, and directed at protecting essential public interests.

With these principles as the conceptual framework, the ALRC identified three broad areas for reform. First, we recommended the repeal of the wide catch-all provisions currently in the Crimes Act 1914 (Cth)—ss 70 and 79(3), and the introduction of a new general secrecy offence, limited to disclosures that harm essential public interests. Secondly, the ALRC considered the wide variety of other specific secrecy offences and recommended best practice principles to guide the review, repeal and amendment of these provisions. Thirdly, the ALRC considered the administrative frameworks governing those that handle government information and made recommendations to improve the management of government information within those frameworks.

4.2       A new general offence 

The ALRC’s key recommendation was that the sanctions of the criminal law—in publicly punishing, deterring, and denouncing offending behaviour—should be reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests. Therefore the new general secrecy offence is limited to unauthorised disclosures that are likely to:

• damage the security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
• endanger the life or physical safety of any person; or
• prejudice the protection of public safety.

In formulating a provision to target the protection of essential public interests, the ALRC was drawn to the idea that the general secrecy offence should complement the Freedom of Information Act 1982 (Cth) (FOI Act). The Australian Public Service Commissioner indicates in the APS Values and Code of Conduct in Practice that the exemptions in the FOI Act are a useful starting point in identifying information which, if disclosed, has the potential to prejudice the effective working of government.[56] The ALRC adopted the approach that a subset of the public interests identified in the FOI Act exemptions should inform the development of the public interests to be protected by the general secrecy offence. The new offence, to be included in the Criminal Code, is intended to replace s 70 of the Crimes Act, and to apply to all Commonwealth information and all present and former Commonwealth officers.

The ALRC also recommended two offences for the subsequent disclosure of Commonwealth information by third parties, where the information was initially disclosed to that person in breach of the general secrecy offence or on terms requiring it to be held in confidence.

The ALRC recommended that there should be exceptions in the general secrecy offence for disclosure in the course of an officer’s functions or duties; disclosure with the authority of an agency head or minister; and disclosure of information that is already lawfully in the public domain. Protection from criminal liability under secrecy offences may also arise as a result of whistleblower legislation. With respect to the latter, in February 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs (Standing Committee) issued a report called Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (the Whistleblower Protection report).[57] The Standing Committee recommended that the Australian Government introduce public interest disclosure legislation to provide whistleblower protections in the Australian Government public sector.^[58] The proposed legislation would establish a system whereby Commonwealth employees could make disclosures about ‘serious matters’ within their organisation, to other public service agencies or, in limited circumstances, publicly.

The Standing Committee recommended that the proposed legislation cover a broad range of participants in the Australian Government.^[59] A person who made a disclosure under the framework established by the proposed legislation would be protected from detrimental action in the workplace and receive immunity from criminal liability (including under secrecy offences), civil liability and administrative penalties.^[60]

The Standing Committee’s final recommendation, however, confined protected public interest disclosures to third parties to very narrow circumstances. A disclosure to a third party external to the public service would only be protected where the matter already had been disclosed internally or to an external authority, but had not been acted on in a reasonable time, and the matter threatened immediate serious harm to public health or safety.^[61]

At the time of writing, the Australian Government has not responded to the Whistleblower Protection report, although the Government indicated that it intends to develop public interest disclosure legislation in 2009.^.[62]Given the Standing Committee inquiry and report, and the Government commitment to introduce public interest disclosure legislation, the ALRC confined its consideration in the report to the interaction between the proposed public interest disclosure legislation and secrecy laws. This issue is discussed in Chapters 7 and 10.

The ALRC did, however, reaffirm recommendations made in previous reports that the Australian Government should legislate to introduce a comprehensive public interest disclosure scheme covering all Australian Government agencies.[63] In the ALRC’s view, a robust public interest disclosure regime is an essential element in an effective system of open government. For the purposes of this Report, the ALRC proceeded on the basis that such legislation will be put in place and that it will largely reflect the recommendations made in the Whistleblower Protection report.

Although there has still been no implementation of the proposed public interest disclosure legislation, there has been the introduction of a federal ‘shield law’. As academic AJ Brown remarked in an article published on 1 July 2011, ‘this simply protects journalists from the risk of jail if they refuse to reveal confidential sources—it does nothing, at law, to protect whistleblowers’.[64]

4.3       Specific secrecy offences 

The ALRC concluded that the new general secrecy offence should not be the only criminal provision regulating the unauthorised disclosure of government information. We recognised 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 key principle is that specific secrecy offences should only be enacted where necessary to protect a public interest of sufficient importance to justify the imposition of a criminal sanction. As a general rule, the ALRC considers that the best way to ensure this is to include an express requirement that the unauthorised disclosure of information caused, or was likely or intended to cause, harm to a specified public interest.

The ALRC recognises, however, that, in very limited circumstances, this may not always be the most effective way to address the harm caused by the disclosure of some kinds of information and to achieve the balance required by the Terms of Reference. For example, specific secrecy offences prohibiting the disclosure of information obtained or generated by intelligence agencies—without the need to prove harm in every case—are justified by the sensitive nature of the information and the special duties and responsibilities of officers and others who work in and with such agencies.

Further, in very limited cases, and where the category of information protected is narrowly defined, regulatory agencies—such as taxation and social security, and corporate regulators—may also be able to justify specific secrecy offences that do not include an express harm requirement. This is because the public interest harmed by the unauthorised disclosure of information held by such agencies—that is, harm to the relationship of trust between the government and individuals that is integral to effective regulatory systems and the provision of government services—is not concrete enough to prove beyond reasonable doubt in a criminal prosecution.

The ALRC also developed other best practice principles in relation to specific secrecy offences, including that such offences should:

• differ in significant and justifiable ways from the recommended general secrecy offence;
• not extend to conduct other than the disclosure of information—such as making a record of, receiving, or possessing information—unless such conduct would cause, or is likely or intended to cause, harm to an essential public interest; and
• specify penalties that reflect the seriousness of the potential harm caused by the unauthorised conduct and the criminal culpability of the offender.

While the primary focus of secrecy offences is to prohibit the disclosure of information, many secrecy provisions also include exceptions that set out the circumstances in which the disclosure of information is permitted. Such provisions often reflect the need for the government to share information. The ALRC also made recommendations to ensure that specific secrecy offences are framed to facilitate appropriate information sharing, and are responsive to whole of government needs.

4.4       Administrative duties, practices and procedures 

Secrecy provisions do not operate in a vacuum. Administrative practices and procedures play a key role in influencing the circumstances in which an individual discloses government information. In the final part of the report, the ALRC focused upon the administrative secrecy framework in the Australian Government. We considered that secrecy provisions that impose administrative penalties on public sector employees have a central role to play—particularly where disclosure is inadvertent, there is no intention to cause harm, or where any potential harm caused by the disclosure is relatively minor. Administrative penalties allow misconduct to be addressed in the employment context, reserving criminal sanctions only for those unauthorised disclosures that warrant the very serious consequences of criminal charge and conviction.

The principal administrative secrecy provision in the Australian Government is reg 2.1 of the Public Service Regulations 1999 (Cth), which imposes a duty on all Australian Public Service (APS) employees not to disclose information where it is ‘reasonably foreseeable’ that the disclosure ‘could be prejudicial to the effective working of government’. The ALRC recommended that the scope of conduct regulated by reg 2.1 should be narrowed. That is, it should 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 further recommends that equivalent conduct standards should apply to most Commonwealth employees other than APS employees—such as employees of statutory authorities and ministerial staff.

Complementing this change, the ALRC made a number of recommendations to promote an effective information-handling culture within Australian Government agencies. Importantly, the ALRC recommended that every Australian Government agency should develop and publish information-handling policies and guidelines to clarify the application of secrecy laws to their information holdings. Other strategies canvassed by the ALRC to promote effective information handling include the development of memorandums of understanding between agencies that regularly share information and ongoing training and development for all employees on information-handling obligations relevant to their position.

Finally, the ALRC recognised the importance of independent oversight of the manner in which Australian Government agencies discharge their information-handling responsibilities. To this end, the ALRC recommended a role for the then proposed new Office of the Information Commissioner.

5.       What next?

How would the Wikileaks situation fare under the recommended reforms to Commonwealth secrecy provisions? It provides an instructive ‘road test’ of the proposed new general secrecy provision. First, the initial ‘leaker’. Assume that he was a Commonwealth officer and that he disclosed government information. Was his disclosure reasonably likely or intended to harm essential public interests? Would it—

• damage the security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
• endanger the life or physical safety of any person; or
• prejudice the protection of public safety?

Maybe some of it had this potential. Then, assuming that Assange disclosed this information in ‘wikileaking’ it, this could come within the subsequent disclosure offence. Did he know, or was he reckless as to whether, the information was disclosed in breach of the proposed general secrecy offence? Did he then disclose the information intentionally, knowing, intending, or reckless as to whether the disclosure would harm one of the essential public interests?  Then he could be liable to a criminal offence. Against such potential liability the ALRC recommended that a number of defences or exceptions could be raised, which are discussed in Chapter 7 of the report.  With respect to so-called ‘public interest’ disclosures, or whistleblowing, outside formal channels—such as to Wikileaks—the protection would need to fit within the proposed public disclosure scheme under discussion.  So, for instance, the ALRC considered that if the initial leaker were covered by such legislation and therefore had a defence to their own potential criminal liability, the next person (such as a journalist, or in this context, Wikileaks) would not commit an offence in disclosing such information.[65]

Terms of reference

REVIEW OF SECRECY LAWS

I, ROBERT McCLELLAND, Attorney-General of Australia, having regard to:

• the desirability of having comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information;
• the increased need to share such information within and between governments and with the private sector;
• the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government; and
• previous reports (including previous reports of the Commission) that have identified the need for reform in this area

REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, 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.

1. In carrying out its review, the Commission will consider:

1. relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality;
2. whether there is a need to consolidate and modernise relevant provisions currently in the Crimes Act 1914 and other Commonwealth legislation for inclusion in the Criminal Code;
3. the way in which secrecy laws in the Crimes Actinteract with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistle‑blowing, and data-matching;
4. whether there should be different considerations for secrecy laws relating to the protection of national security and other sensitive Commonwealth information; and
5. any related matter.

1. In carrying out its review, the Commission is to identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies and private sector bodies.
2. The Commission will provide its final report to me by 31 October 2009.

Dated 5 August 2008

Robert McClelland

Attorney-General

Justice Susan Kenny, Federal Court of Australia, Part-time Commissioner, Australian Law Reform Commission, addressing the National Information Law Conference in Canberra, on 24 March 2011

 Introduction

James Madison, sometimes called the Father of the United States Constitution, once said that:

… I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations …  [1]

This is relevant to secrecy provisions.  Secrecy provisions deprive citizens of the information created, collected or received by the Commonwealth on their behalf.  They also curtail the freedom of expression of those who have that information.  Secrecy provisions are those legislative provisions that impose confidentiality obligations on individuals or entities.[2]

As it happens, no-one having Commonwealth information can use that information as she pleases.  Commonwealth information – or ‘official’ or ‘government information’ as it is also called – is subject to a matrix of judge-made law and statute.  This legal matrix is designed to foster two main objects: first, the protection of the confidentiality of information; and, second, the provision of access to information by the public and, in some instances, particular individuals.  Plainly enough, these objects oppose one another; and the primacy of the one over the other has changed over time.

The history of this change is, at least in part, about changing relationships between citizens and government; re-evaluation of Westminster-style responsible government; a greater appreciation of participatory democracy; and the adoption of the language of human rights in the civil and political spheres.  To make good these propositions, I propose to discuss the history of secrecy provisions up until the Freedom of Information Act 1982 (Cth); to mention three significant secrecy provisions; and to reflect on the developments that may lead to further change.

The history of secrecy provisions in Australia

In Australia, up until around the 1970s, Commonwealth information was largely protected against public disclosure. 

Writing about secrecy in government in 1967, the late Professor Enid Campbell wrote that Australia was at that time:

… a country in which many of the day to day workings of government are shielded from public view.  The right of public servants to perform their functions anonymously and in camera and the right of executive departments to treat their records as confidential are so firmly rooted in our political tradition that it may be hard to imagine how any form of government could function properly without them.[3]

The idea that a secrecy blanket generally covers Commonwealth information belongs to a legal landscape that has since disappeared.  Australian public lawyers are familiar with the profound changes in Australian administrative law in the 1970s and 1980s.  These changes were the work of the courts and the legislature.

The role of the courts is notable.  By 1913 it was accepted that a court might, in appropriate circumstances, restrain the publication of confidential Government information improperly obtained, or of information imparted in confidence which ought not to be divulged.[4]  In 1976, the House of Lords in England and, in 1980, the High Court in Australia made it clear that the Executive would not be granted relief of this kind unless it could show that some harm would flow from the disclosure over and above the dissemination of the information to the community at large.  I refer, of course, to the Crossman Diaries Case [5] in England, in which the Court refused to restrain the publication of the diaries of a former Cabinet Minister, Richard Crossman, and to Commonwealth v Fairfax & Sons Ltd [6] in Australia.  As the Spycatcher Case in the later 1980s showed, it was accepted by then that no relief would be available unless some distinct harm to the public interest were shown that weighed against freedom of communication and public debate.[7] 

In the mid 70s and early 80s, the Parliament introduced the Commonwealth’s then new administrative law, which initially consisted of the Ombudsman Act 1975 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth).  In the context of information secrecy, however, the most significant of the new pieces of legislation was the Freedom of Information Act 1982 (Cth).  In Australia, the FOI Act, as it is familiarly known, had its origins in a 1972 policy commitment by the Whitlam Labor government to enact legislation along the lines of the US Freedom of Information Act, enacted by the US Congress in 1966.[8]

When enacted, the Australian FOI Act was the first freedom of information legislation to be introduced in a country with a Westminster style of responsible government.[9]

Until the FOI Act, the Westminster system was generally thought to depend on a regime of secrecy governing public servants, especially as regards Cabinet deliberations, information conveyed by public servants to and from ministers and even the workings of the public service.  This was typically seen as a necessary concomitant of the secrecy that underpinned the constitutional convention of Cabinet collective responsibility.  Secrecy and democracy were reconciled by the notion of ministerial responsibility.[10]  Ministers were responsible, collectively and individually, to Parliament and to the electorate, for what a minister’s department, or the government, did or failed to do.  The confidential provision of advice by public servants to their ministers was said to be necessary to preserve the essential political neutrality of the public service.  

In the pre-FOI era, Professor Campbell’s view was that governmental secrecy was a habit of mind “originating in the hands of the monarch”.  Professor Campbell wrote:[11]

The tradition of government privacy grew from the subordination of royal officials to the person of the monarch, the urge of monarchs to protect themselves against the incursions of rival power seekers, and the common medieval tendency of expressing public law principles in proprietary terms.  Documents prepared by Crown servants became Crown property and, as such, matters which the Crown could disclose or withhold at will.

Following the examples of colonial legislatures,[12] the Australian Parliament enacted its first secrecy provisions as part of the Post and Telegraph Act 1901 (Cth).[13]  In his article in the Federal Law Review in 1990, John McGinness commented:[14]

Early secrecy provisions were mainly concerned with the protection of defence and national security.  However, with the expansion of the Commonwealth’s role after the mid-1940s in areas such as taxation, health, education, welfare, scientific research, industry assistance and regulation, secrecy provisions increased in number as a reflection of the increase in personal and commercially sensitive information collected by the government.

Sections 70 and 79 of the Crimes Act 1914 (Cth) entered Australian law in that year.  Section 70 of the Crimes Act originated with s 86 of the Queensland Criminal Code of 1889.[15]  Section 79(3) derived from s 2 of the UK’s Official Secrets Act 1911.[16]  Both provisions prohibit the disclosure of Commonwealth information acquired by a person in the course of his or her duties.  They remain two of the most significant secrecy provisions in Australian law.

Unsurprisingly, secrecy provisions were considered especially important in wartime and in the anti-communist period of the Cold War.[17]  Recently, in his article “WikiLeaks [SEC = UNCLASSIFIED]”, one of Australia’s most experienced diplomats, John McCarthy, explained that, after the Second World War, the maintenance of secrecy remained of paramount concern, especially for international affairs and defence.  John McCarthy wrote:[18]

The Second World War created national security systems which were very largely the preserve of the Executive Branches of Government.  …  Most systems espoused a strict ethic on the protection of information – reflected in the rule that information should be accessed on a need to know basis.  In other words, only those cleared and actually working in on a sensitive issue should see the information pertinent to it.

For the first generation or so after WW2, the imperatives of the Cold War meant that the then prevailing mindset in governments about secrecy was not challenged in a serious way.

The introduction into the Australian legal system of the FOI Act contributed a great deal, first, to diminishing the entrenched tradition of government secrecy and, secondly, to establishing that ‘open government’ (as the post FOI era would have it) is fundamental to a participatory democracy.  By giving the community greater access to Commonwealth information, the FOI Act states that Parliament intends to promote Australia’s representative democracy.[19]  Of course, the FOI Act has always recognized the inevitable tension between ensuring access to information and the continuing need for confidentiality; and has sought to provide exemption from disclosure where there remains a need for continuing confidentiality.

The old and the new ways of thinking about disclosure are evident in the history of s 38, which originally provided that a document was exempt from disclosure if there was in force “an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind”.  The current version of s 38 is more straightforward.

Even so, there still remains at least one area of difficulty in the application of this provision.  What happens when an officer discloses information under the FOI Act if such disclosure is potentially in breach of a secrecy provision?  Secrecy provisions that permit disclosure in the course of duty have been understood as permitting disclosure under the FOI Act.  Difficulties arise, however, where there is no express exception, or the exception to non-disclosure is narrowly defined, as was the case in Kwok v Minister for Immigration and Multicultural Affairs.[20]  In that case, the court held that there could be no permissible disclosure under the FOI Act because the secrecy provision stipulated that the only permissible disclosure was to a minister, or an authorised migration officer, for the purpose of allowing them to exercise certain statutory powers.

Undoubtedly, the legal matrix that governs the secrecy of Commonwealth information has altered over the past 30 years. As the history of s 38 of the FOI Act shows, however, many secrecy provisions remain.

Three significant provisions

I mention three significant provisions, with a view to discussing the nature of anticipated change.[21] 

The first of these three provisions is regulation 2.1(3) of the Public Service Regulations 1999 (Cth).[22]  This provides that an APS employee “must not disclose information which the APS employee obtains or generates in connection with his or her APS employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs”. [23]  The ALRC has proposed that the regulated conduct should be further narrowed to apply only to disclosures that are “reasonably likely” to result in such prejudice.

The other two provisions are ss 70 and 79 of the Crimes Act 1914 (Cth), to which I referred earlier.  Section 79 creates a number of offences relating to the use or disclosure of official secrets.  Section 79(2) deals with obtaining official secrets “with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queen’s dominions”.  Sections 79(3)[24], (4) and (6) create offences in relation to official secrets, without the need to prove intent to prejudice safety or defence.[25]  For present purposes, it probably suffices to say that s 79 is a complicated provision.[26]  Its complicated structure has been severely criticized.[27]  The language of the provision is outmoded.[28]

The effect of s 70 is to criminalize breaches of secrecy obligations by Commonwealth officers.  In Report 112, the ALRC states that, since 2000, most prosecutions for breach of secrecy provisions have been brought under this provision.[29]  Accordingly, it is worth giving the provision some further attention. 

Section 70(1) provides that:

A person who, being a Commonwealth officer,[30] publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it,[31] any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

The maximum penalty for contravention of s 70 is two years imprisonment.[32] 

Prosecutions under s 70 are instructive because they highlight the difficulties with the provision.[33]  R. v Goreng Goreng[34]in 2008 is illustrative.

The defendant in Goreng Goreng was a branch manager at the Office of Indigenous Policy Coordination.  The defendant disclosed information relating to the first draft of the Declaration on the Rights of Indigenous Peoples to her daughter, by email, to assist with a university assignment.  She also provided information relating to the Government’s Indigenous policy to a member of an indigenous community in the Northern Territory, including plans to include sexual health checks for children. The defendant was ultimately given a fine of $2000, and a three-year good behaviour bond.[35]

As Goreng Goreng illustrates, the first point to make about s 70 is that s 70 does not itself create a duty not to disclose.  This duty must be found elsewhere in the law, typically in a specific secrecy provision.[36]  In Goreng Goreng, the duty of confidence was said to arise from reg. 2.1(3) of the Public Service Regulations.

The defendant argued, however, that reg. 2.1(3) could not be relied on in the prosecution because, first, the regulation breached the constitutional guarantee of freedom of political communication; second, the regulation was uncertain in its operation; and, third, it was ultra vires as an impermissible exercise of regulation-making power.

The defendant’s constitutional argument relied in part on the decision of Justice Finn in Bennett v President, Human Rights and Equal Opportunity Commission[37].  Justice Finn held that an earlier version of the regulation, reg. 7(13) of the Public Service Regulations 1999 (Cth), was invalid as infringing the implied constitutional freedom of political communication.  In applying Lange v Australian Broadcasting Corporation,[38] Justice Finn said that reg. 7(13) effectively burdened freedom of political communication because, although aimed at a legitimate end – the effective working of government – it was not reasonably appropriate and adapted to furthering that end without unnecessarily or unreasonably impairing the constitutional freedom.  The control imposed by the regulation impeded unreasonably the possible flow of information to the community, being information, which, without prejudicing the interests of the Commonwealth, could only enlarge the public’s knowledge of the operation and policies of the executive government.[39]

In contrast, in Goreng Goreng, Justice Refshauge had no difficulty in rejecting the defendant’s submissions that the new regulation 2.1(3) was unconstitutional or ultra vires, although he said that he had “considerable hesitation” in concluding that the regulation was not invalid as uncertain.  Justice Refshauge noted that reg. 2.1(3) was a more limited prohibition than that considered by Justice Finn in Bennett and focussed on “on a legitimate interest that government has to protect, which failure to comply with the prohibition may prejudice”.[40]

Other doubts about s 70 remain unanswered.  I refer here to four.  In particular, what kind of non-disclosure duty is relevant to s 70?  Is a non-disclosure duty in common law or equity as relevant as non-disclosure under a secrecy provision?[41]  Does the obligation under s 13(10) of the Public Service Act 1999 (Cth) not to publish certain information give rise to a duty the breach of which can attract s 70?  Justice Refshauge in Goreng Goreng found it unnecessary to decide whether these additional sources of obligation might be relied on by the Crown in a prosecution under s 70 of the Crimes Act.  Whether or not they can remains an open question.

Second, the requirement that disclosure under s 70 be of a “fact or document”, instead of information, introduces the possibility of anomalies.  As Paul Finn noted:

“Where a document is not disclosed all that is protected is a ‘fact’; where a document is disclosed its contents need not be ones of fact.  Unless ‘fact’ is given a meaning which covers disclosure of advice, opinion, intention etc, the scope of the offence is manipulated simply by the particular means (oral or documentary) used in the disclosure.”[42]

Third, the activity to which s 70 applies is broadly described—the publication or communication of any fact or document.  In Kessing[43] Bell JA, with whom the other members of the Court agreed,[44] said that:

“Communication of the contents of a document requires no more than that the contents be conveyed or transmitted to another.  This may be done directly by handing the document to another or by reading the document to another.  It may be done indirectly by leaving the document on a park bench for another to collect or in any of a variety of ways.”

Is, then, the only real limitation on the breadth of the regulated activities the fact that they must be intentional?

Fourth, the application of s 70 depends on the scope of the duty not to disclose;[45] it does not depend on any harm to the public interest, whether anticipated or actual.[46]  A number of experts have criticized the failure of s 70 to distinguish between a disclosure that likely harms the public interest and that which cannot.  Are they right to do so?

Over a decade ago now, the Gibbs Committee, under the Chairmanship of Sir Harry Gibbs, recommended the repeal of s 70 and s 79(3) and their replacement by more streamlined provisions.[47]  In Report 112, the ALRC has also recommended the repeal of s 70 and the introduction of a new, targeted secrecy offence.[48] Is this recommendation in keeping with likely shifts in community attitudes?  I now turn to the developments that may lead to change.

Developments that may lead to change

In order to appreciate the role that these secrecy provisions will play in the foreseeable future, it is, so it seems to me, instructive to refer once again to history, this time to recent history.  There have, so it seems to me, been three major recent developments.

First, as John McCarthy notes in his discussion of the effect of WikiLeaks on diplomatic communications, there would appear to have been a major change in community attitudes to secrecy in government.[49]  In any event, there is a body of opinion to the effect that Australians should have information about the conduct of government and the merits of governmental policies in order to exercise proper judgment about who should govern and the rules that should apply.[50]  This body of opinion finds expression most recently in the movement for more effective whistleblower legislation, which is to be introduced into Parliament in its Autumn sittings this year.[51]  Furthermore, the decision of the High Court in Lange affirms constitutionally-entrenched protection for freedom of political communication.  “Open government”, of some kind or another, is, it seems, here to stay for the foreseeable future.  If openness in government is desirable, however, it cannot be entirely unlimited.  Secrecy too is essential to governing in some circumstances.  The difficult question – addressed by the ALRC in its recent report on secrecy provisions – is just how to strike the balance.

The second development is the widespread use of the Internet.  The Internet has brought an information revolution so far as the storage and dissemination of information is concerned.[52]  Much Commonwealth information is readily available through search engines that locate it in minutes.  This makes public access to government information practicable, cheap, and efficient.  In an online world, once Commonwealth information has been disseminated via the web, it becomes virtually irretrievable.

Finally, there is globalisation.  This has had a number of effects.  First, the internationalisation of attitudes to knowledge exchange may have an effect, both direct and indirect, on attitudes to the disclosure of government information.  John McCarthy referred to this development in the context of information sharing between nations. [53]  Second, over time, major international agreements tend to affect domestic opinions, whether legislative, judicial or otherwise, about the proper relationship of citizens and government in a democracy, and the role that access to government information has in defining this relationship.  In this connection, I note that article 19 of the International Covenant on Civil and Political Rights apparently requires that secrecy provisions be of a specific kind, made in pursuit of a legitimate end and proportionate to that end, in order to be a justifiable restriction on the right to freedom of expression that the article recognizes.[54]  Whilst the effect of the ICCPR as a standard setting instrument within Australia is a topic for another day, it seems clear enough that it has the potential to affect domestic attitudes to what is and is not permissible with respect to government secrecy.  This kind of analysis may be expected to find greater purchase in Australia in future.

Third, global WikiLeaks may in the longer term threaten the existing secrecy regimes governing Commonwealth information.  This threat is evident in the publicized disclosures of Australian international cables.  It is also evident in what WikiLeaks proclaims itself to be.  On its webpage WikiLeaks declares that it “has provided a new model of journalism”.  WikiLeaks continues:

“In the years leading up to the founding of WikiLeaks, we observed the world’s publishing media becoming less independent and far less willing to ask the hard questions of government, corporations and other institutions. We believed this needed to change.”

WikiLeaks and the ready availability of information via the Internet create challenges for secrecy in democratic societies.  The effect of WikiLeaks on attitudes to government information and, in particular, secrecy provisions is presently a matter for conjecture.  With regard to Australia’s international affairs, McCarthy considered that the “initial tendency … will … be towards less rather than more openness” but that WikiLeaks might “prompt a surge of thinking and activity within those circles in Australia pushing for more freedom of information”.  Perhaps the trends will be the same in other areas of government.  

One thing is clear: WikiLeaks has brought the issue of government secrecy into the limelight; and has galvanized opinions across the generations and sectors of society.  With this is mind, the ALRC’s recommended reforms would, if implemented, assist the Australian government to keep up with the likely drift of informed thinking, without endangering the effective working of government.  This is because the

 ALRC’s recommendations recognize that secrecy provisions can have an important role to play in effective governance, but that their retention depends upon some principled justification compatible with the contemporary conception of participatory democracy.  

Professor Rosalind Croucher^** President, Australian Law Reform Commission, National Information Law Conference 2011, 24 March 2011

Abstract: This paper discusses the inquiry conducted by the Australian Law Reform Commission (ALRC) into Commonwealth secrecy laws: Secrecy Laws and Open Government in Australia (ALRC Report 112) tabled in March, 2010. It considers how, from a law reform perspective, the ALRC approached the challenge of reviewing the wide range of secrecy provisions on the Commonwealth statute books and working out a policy framework for the law reform recommendations proposed.

1. Introduction

I am delighted to be here today to give this presentation on the policy of secrecy laws, as the other half of this session with the Hon Justice Susan Kenny, who is tackling the practice side of secrecy provisions. The inclusion of such a session in the inaugural National Information Law conference is timely. The management of information can be conceived of as a spectrum, with openness of information and protection of information as opposite ends of that spectrum. Secrecy provisions are situated at different points in the spectrum—at times emphasising protection; at times facilitating information handling, sharing and disclosure.

The appropriate handling of information is integral to the effective functioning of government. Secrecy laws are one element in the broader information handling framework across government—including elements such as security classification systems, information-sharing regimes, and agency-specific information-handling policies. As part of the spectrum of information handling in the public sector, secrecy laws may serve a legitimate role in generating personal responsibility for the handling of Commonwealth information.

Secrecy laws that impose ‘extreme’ 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.

Examples keep popping up. Let’s take a very recent one—Julian Assange, described in Wikipedia as:

an Australian publisher, journalist, software developer and Internet activist. He is the editor in chief of WikiLeaks, a whistleblower website and conduit for worldwide news leaks, with the stated purpose of creating open governments. Assange worked as a computer programmer and was a hacker during his youth. He has lived in several countries and has made public appearances in many parts of the world to speak about freedom of the press, censorship and investigative journalism.

On 28 November 2010, WikiLeaks and its five international print media partners (Der Spiegel, The New York Times, Le Monde, The Guardian and El País) began publishing US diplomatic cables. That has got Assange into serious trouble and placed him on the front pages of many papers. One described him as ‘the weirdest Bond villain ever, putative head of the WikiLeaks collective, and possibly the only celebrity Australian not to have an invite from Oprah’.^[1]

There are many issues involved here. How did he get this information that was ‘leaked’? Imagine the leaker was an Australian Commonwealth officer. Would this attract a secrecy provision? What about Mr Assange and the publishing of the information on the WikiLeaks site? Would—or should—the original leaker be guilty of a criminal offence? And Mr Assange? And can he be compelled to reveal his sources?

These are typical of the kinds of questions that lie behind a consideration of secrecy laws. The focus is not on the protection of information, as such, but when it is appropriate to punish a person for disclosing it—and with a criminal penalty.

2. The law reform brief

2.1 Terms of Reference

On 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the 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 by providing appropriate access to information. The ALRC was also asked to consider the increased need to share information within and between governments and with the private sector.

2.2 Background to the review

The consistency and workability of Commonwealth secrecy provisions has been considered in a number of prior reviews, leading up to and prompting the ALRC Inquiry. 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’.^[2]

A number of problems had been identified, including, for example:

• inconsistency with the freedom of expression contained in art 19 of the International Covenant on Civil and Political Rights;^[3]
• the potentially indiscriminate operation of secrecy provisions targeted at all unauthorised disclosures;^[4]
• lack of consistency in drafting and penalties across the secrecy provisions in other Commonwealth statutes.^[5]

The ALRC had also 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.^[6]

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.^[7]

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)].^[8]

Such calls led to the ALRC secrecy inquiry.

3. Law reform process

The law reform process involves a number of steps: sizing up the problem within the constraints of the Terms of Reference; defining the conceptual/policy landscape in which the development of law reform recommendations will occur; consultation, consultation, consultation; and, finally, the report, containing recommendations for reform.

3.1 Mapping the provisions

A first step in the ALRC’s work was to size up the problem. How many secrecy provisions did we have to deal with? Where were they? What did they look like? To answer these questions, the ALRC undertook a comprehensive mapping exercise to catalogue the secrecy provisions currently on the federal statute book. I must say that the wonderful interns we routinely recruit contributed significantly to this exercise, beginning with statutes beginning with ‘A’—eg ‘A New Tax System etc’. The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences—a ‘plethora’ of provisions.^[9] This mapping exercise provided a sound evidence base for the ALRC’s analysis of secrecy provisions and the recommendations for reform in this Report.

A number of key issues emerged—including the catch-all nature of some of the provisions and an over-reliance on criminal sanctions. The ALRC also identified considerable inconsistency in the framing and elements of specific secrecy provisions, reflecting their introduction at different times, using different language and often with widely ranging penalties. For example,^[10]

the unauthorised disclosure of information relating to the affairs of a person in some cases attracts a low-level fine of $550,^[11] and in others a term of imprisonment for two years and a fine of $13,200.^[12] Disclosing information about the identity of a person in the national witness protection program carries a maximum penalty of 10 years imprisonment,^[13] whereas publishing information that discloses the identity of an agent or officer of the Australian Security Intelligence Organisation carries a maximum penalty of imprisonment for one year—even in circumstances where such publication could endanger the life of that agent or officer.^[14] Commonwealth officers may also face administrative action for breach, ranging from reprimands to dismissal.

3.2 Defining the conceptual landscape

Another fundamental task is identifying the conceptual landscape in which the development of law reform recommendations will be located. The concept of secrecy as a mechanism for protecting government information, on the one hand, and the commitment to openness of government, on the other, reflect certain historical understandings of the relationship between a government, citizens, officials and information.

The secrecy of government information has a long history. Justice Kenny’s paper provides an excellent discussion of this important background. Two principal rationales for secrecy in the modern context are the Westminster system of government and the need to protect national security. The Westminster system was premised on secrecy. As summarised in 2008 by the Independent Review Panel examining the Freedom of Information Act 1992 (Qld):

Secrecy had been an essential ingredient of the system—secrecy to protect the deliberations of the cabinet, secrecy to protect the advice proffered by public servants to their ministers, secrecy to hide what happened within the public service. The democratic element that allowed this closed system to function was provided by the concept of ministerial responsibility—ministers were responsible, collectively and individually, directly to parliament and indirectly to the electorate, for what the government did, and for what their departments did.^[15]

In this way, the conventions of the Westminster system were seen to demand official secrecy. For example, the doctrine of collective ministerial responsibility was said to depend to a large extent on the secrecy of Cabinet deliberations and documents. Further, the confidential provision of advice to ministers by public servants is linked to the principle that the government of the day is served by a professional and politically neutral public service carrying out the instructions of the elected government.^[16]

For most of Australia’s history, ‘official secrecy has been the legislatively enforced norm’.^[17] The first Australian secrecy provision, introduced in the colony of Victoria in 1867, ‘set the pattern for the various public services of Australia’, requiring that:

no information out of the strict course of official duty shall be given directly or indirectly, by any officer without the express direction or permission of the responsible Minister.^[18]

The first Commonwealth secrecy provisions were passed during the initial session of the Australian Parliament in 1901.^[19] Their primary focus was the protection of national security information.^[20]

Periods of international conflict have precipitated an awareness of the need for, and experience of, secrecy provisions. In 1960, for example, amendments were made to s 70 of the Crimes Act 1914 (Cth),^[21] inspired in part by the anti-communist climate of the Cold War.^[22] The amendment, which extended the reach of s 70 to former Commonwealth officers, was ‘just one of many secrecy provisions inserted or strengthened in legislation after the war’.^[23]

The increase in the size and role of government in the period following World War II, combined with technological advances that increased the ability of governments to deal with large amounts of information, has had a significant impact on the relationship between citizens and government.^[24] And the increased reach of government was matched by a growth in secrecy provisions—‘a reflection of the increase in personal and commercially sensitive information collected by the government’.^[25] In addition, the Privacy Act 1988 (Cth) was enacted to ensure that the government appropriately handled and protected personal information. Both reflected the impetus to protect certain information in the hands of government.

As the reach of government expanded, however, there was increasing pressure to ask questions about what government was doing. This led to a shift in attitude to official secrecy in the 1960s with the development of a new philosophical and practical approach to government, leading to the description ‘open government’.^[26] The move to more open government was reflected in the development of ‘freedom of information’ (FOI) and related administrative laws.

In 1970, the then Leader of the Opposition, the Hon Gough Whitlam MP, noted with concern that ‘excessive secrecy has become commonplace in governmental decision making’.^[27] Introduction of FOI legislation became an issue in the lead up to the 1972 federal election,^[28] at which time the Australian Labor Party claimed that the government’s monopoly of knowledge had ‘led to bad decisions and bad government’.^[29]

The introduction of the Freedom of Information Act 1982 (Cth) formed part of a package of administrative law reforms.^[30] These legislative reforms aimed to facilitate effective public administration while at the same time safeguarding the civic rights of the individual citizen.^[31] As Associate Professor Moira Paterson has noted, FOI laws ‘form a vital part of a broader network of laws, both formal and informal, which affect the overall transparency of the executive branch of government’.^[32]

The importance of access to information to the accountability of government for its actions was reiterated by Senator the Hon John Faulkner, the then Cabinet Secretary and Special Minister of State, in proposing reforms to the FOI framework in March 2009:

There is a growing acceptance that the right of the people to know whether a government’s deeds match its words, to know what information the government holds about them, and to know the information that underlies debate and informs decision-making is fundamental to democracy.^[33]

The relationship between FOI and secrecy provisions—which appear to stand in direct juxtaposition to each other—was a key issue in the ALRC’s secrecy inquiry.

The Terms of Reference acknowledge both the public interest in open and accountable government and the increased need to share Commonwealth information within and between governments and with the private sector. A seamless flow of information within and between governments is referred to as a ‘whole of government’ approach—‘the public administration of the future’.^[34] This flow of information, however, may pose particular problems in relation to certain sensitive information, for example, personal information. In the context of such information, the concern is not about ‘open government’, but rather about the appropriate protection of the information itself in the hands of government officers.

Wherever information-sharing objectives arise, a parallel concern is the role of secrecy provisions, or other mechanisms, to protect that information in appropriate circumstances. Ensuring that channels for the communication of protected information are built into, or complement, secrecy provisions may be crucial to achieving an appropriate balance between protecting information and providing effective service delivery. As noted by the DHS in relation to the wide range of personal information collected and managed by their agencies:

While the appropriate protection of personal information about customers must, of course, remain paramount, it is essential that secrecy provisions complement and assist, rather than frustrate, improvements to service delivery.^[35]

While open government is central to this Inquiry, another key principle of relevance is freedom of expression. The International Covenant on Civil and Political Rights (ICCPR) includes art 19:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.^[36]

The Human Rights Committee of the United Nations (Human Rights Committee) has commented that the right to freedom of expression includes:

Not only freedom to impart information and ideas of all kinds but also freedom to seek and receive them regardless of frontiers and in whatever medium, either orally, in writing or in print, in the form of art, or through any other media of his choice.^[37]

The right set out in art 19(2) is qualified by the provisions in art 19(3)—that freedom of expression may be subject to ‘certain restrictions’. How do secrecy provisions—that appear to restrict freedom of expression—sit within the framework of art 19? The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights state that any such limitations on the ICCPR must: be recognised by the relevant article of the ICCPR; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim.^[38] The principles also state that the expression ‘public order’, as used in the ICCPR, ‘may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded’. This expression is not limited to criminal law enforcement in the context of the ICCPR and includes, for example, respect for human rights.^[39]

By restricting Commonwealth officers and others from communicating government information, secrecy provisions limit freedom of expression in certain respects. Their legitimacy, therefore, must be tested internationally against the backdrop of the ICCPR, and domestically against the implied freedom of political communication. In what have been called the ‘free speech cases’, the High Court has held that the system of representative and responsible government established by the Australian Constitution implies a commitment to the freedom of political communication.^[40] This sets the backdrop against which the validity of secrecy provisions must be tested.

In 2003, the matter arose in Bennett v President, Human Rights and Equal Opportunity Commission (Bennett).^[41] Peter Bennett, a public servant employed by the Australian Customs Service and President of a registered industrial organisation representing customs officers, publicly advocated the establishment of a Single Border Protection Agency and commented in the media on other customs matters. The Chief Executive Officer of Customs issued Bennett with a formal direction not to make comments in the media ‘about public business or anything of which you have official knowledge’.^[42] After Bennett made comments in a radio interview about proposed cuts to waterfront officers, he was disciplined for breach of the now repealed reg 7(13) of the Public Service Regulations 1999 (Cth):

An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

As Justice Kenny explains in her paper, in Bennett Finn J held that reg 7(13) was inconsistent with the implied freedom of political communication and declared it to be invalid. He held that, while there may be public interests, or ‘legitimate ends’, that justify the burden that secrecy provisions impose on freedom of political communication—including national security, cabinet confidentiality, protection of privacy and the maintenance of an impartial and effective public service—a ‘catch-all’ provision that did not differentiate between the types of information protected or the consequences of disclosure went too far:

Official secrecy has a necessary and proper province in our system of government. A surfeit of secrecy does not. It is unnecessary to enlarge upon why I consider the regulation to be an inefficient provision other than to comment that its ambit is such that even the most scrupulous public servant would find it imposes ‘an almost impossible demand’ in domestic, social and work related settings …

The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community—information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operation, practices and policies of executive government.^[43]

Following the decision in Bennett, reg 7(13) of the Public Service Regulations was repealed and replaced by reg 2.1.^[44] The latter is expressly limited to situations in which it is reasonably foreseeable that the disclosure of official information could be prejudicial to the effective working of government.^[45] The constitutional validity of this new regulation was challenged in R v Goreng Goreng.^[46] In that case, Refshauge J of the Supreme Court of the Australian Capital Territory considered that, unlike former reg 7(13), reg 2.1 was not a ‘catch-all’ provision, but much more limited and targeted to the protection of a legitimate public interest in the effective working of government.^[47]

Within this broad conceptual context, the challenge for the ALRC was to strike the right balance between the public interest in open and accountable government and the public interest in maintaining the confidentiality of some government information. The goal, then, was to identify the proper place, if any, for secrecy provisions in the context of a system of open and accountable government—consistent with Australia’s obligations under international law.

In particular, regulatory theory cautions against the over-use of criminal penalties. Criminal penalties sit at the top of the ‘enforcement pyramid’ developed by Professors Ian Ayres and John Braithwaite to describe a model regulatory approach.^[48] Under the ‘enforcement pyramid’ model, breaches of increasing seriousness are dealt with by penalties of increasing severity, with the ultimate penalties—such as imprisonment—held in reserve. Braithwaite has described the operation of the pyramid in the regulatory environment as follows:

My contention is that compliance is most likely when the regulatory agency displays an explicit enforcement pyramid … Most regulatory action occurs at the base of the pyramid where initially attempts are made to coax compliance by persuasion. The next phase of enforcement escalation is a warning letter; if this fails to secure compliance, civil monetary penalties are imposed; if this fails, criminal prosecution ensues; if this fails, the plant is shut down or a licence to operate is suspended; if this fails, the licence to do business is revoked … The form of the enforcement pyramid is the subject of the theory, not the content of the particular pyramid.^[49]

Although this model was developed for the corporate regulatory environment, the principles of the enforcement pyramid model are broadly applicable to the issues under consideration in this Inquiry. At the bottom of the enforcement pyramid lie the techniques described in Chapters 14 and 15 of the report, which are designed to foster a culture in which Commonwealth information is handled effectively—such as agency policies and guidelines, staff training and development, and secrecy oaths and affirmations. Where these techniques fail to prevent unauthorised disclosure, administrative penalties, or general law or contractual remedies may be available. Where the disclosure is more serious—for example, where the disclosure has the potential to cause serious harm or is intended to cause harm—criminal penalties may be applied.

3.3 Consultation

The Terms of Reference indicated that the ALRC was ‘to identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies and private sector bodies’. One of the most important features of ALRC inquiries is the commitment to widespread community consultation.^[50] The nature and extent of this engagement is normally determined by the subject matter of the reference—particularly whether the topic is regarded as a technical one, of interest largely to specialists in the field, or is a matter of interest and concern to the broader community.

During the course of this Inquiry the ALRC conducted 35 meetings with a number of Australian Government agencies, academics, judges and members of the legal profession. The consultations were designed to capture the views of a wide cross-section of interested stakeholders.^[51]

Two community consultation documents—an Issues Paper and a Discussion Paper^[52]—were produced before proceeding to the final Report with recommendations for reform. In addition, to facilitate communication about the nature and focus of this Inquiry, the ALRC released an overview document, Review of Secrecy Laws—Inquiry Snapshot, in February 2009, written in plain language and providing ready access to information about the Inquiry.

The ALRC received 46 submissions in response to the Issues Paper and 38 submissions in response to the Discussion Paper.^[53] A number of individuals, groups and federal bodies made submissions to both IP 34 and DP 74. The ALRC utilised two additional strategies for consultation—an online forum and a national phone-in. The online forum attracted comments that included matters about agency culture; the security classification system; the application of tax secrecy provisions to information about public companies; internet censorship proposals; the need for, and problems in devising, effective information and risk management systems; and who should be subject to secrecy obligations. During the national phone-in the ALRC received 34 calls expressing concerns about matters such as: inappropriate revelations of personal information or perceived breaches of privacy; difficulties in gaining access to personal information, for example, for the purpose of family reunion; problems with security classifications and obtaining security clearances; cultures of secrecy in agencies; the need for whistleblower protection; difficulties in the sharing of information amongst agencies; and the draconian nature of s 70 of the Crimes Act.

4. The reform framework

To underpin the recommendations for reform, the ALRC developed what we consider to be a new and principled framework for secrecy provisions, striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential. We constructed a conceptual framework based on the following principles, that:

• administrative and disciplinary frameworks play the central role in ensuring that government information is handled appropriately, and that every person in the information chain understands their responsibilities in respect of that information;
• criminal sanctions should only be imposed where they are warranted—when the disclosure of government information is likely to cause harm to essential public interests—and where this is not the case, the unauthorised disclosure of information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies;
• there is a continuing role for properly framed secrecy offences—both general and specific—in protecting Commonwealth information, provided that they are clear and consistent, and directed at protecting essential public interests.

5. Key recommendations

The ALRC identified three broad areas for reform. First, we recommended the repeal of the wide catch-all provisions currently in the Crimes Act 1914 (Cth)—ss 70 and 79(3), and the introduction of a new general secrecy offence, limited to disclosures that harm essential public interests. Secondly, the ALRC considered the wide variety of other specific secrecy offences and recommended best practice principles to guide the review, repeal and amendment of these provisions. Thirdly, the ALRC considered the administrative frameworks governing those that handle government information and made recommendations to improve the management of government information within those frameworks.

5.1 A new general offence

The ALRC’s key recommendation was that the sanctions of the criminal law—in publicly punishing, deterring, and denouncing offending behaviour—should be reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests. Therefore the new general secrecy offence is limited to unauthorised disclosures that are likely to:

• damage the security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
• endanger the life or physical safety of any person; or
• prejudice the protection of public safety.

In formulating a provision to target the protection of essential public interests, the ALRC was drawn to the idea that the general secrecy offence should complement the Freedom of Information Act 1982 (Cth) (FOI Act). The Australian Public Service Commissioner indicates in the APS Values and Code of Conduct in Practice that the exemptions in the FOI Act are a useful starting point in identifying information which, if disclosed, has the potential to prejudice the effective working of government.^[54] The ALRC adopted the approach that a subset of the public interests identified in the FOI Act exemptions should inform the development of the public interests to be protected by the general secrecy offence. The new offence, to be included in the Criminal Code, is intended to replace s 70 of the Crimes Act, and to apply to all Commonwealth information and all present and former Commonwealth officers.

The ALRC also recommended two offences for the subsequent disclosure of Commonwealth information by third parties, where the information was initially disclosed to that person in breach of the general secrecy offence or on terms requiring it to be held in confidence.

The ALRC recommended that there should be exceptions in the general secrecy offence for disclosure in the course of an officer’s functions or duties; disclosure with the authority of an agency head or minister; and disclosure of information that is already lawfully in the public domain. Protection from criminal liability under secrecy offences may also arise as a result of whistleblower legislation. With respect to the latter, in February 2009, the House of Representatives Standing Committee on Legal and Constitutional Affairs (Standing Committee) issued a report called Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (the Whistleblower Protection report).^[55] The Standing Committee recommended that the Australian Government introduce public interest disclosure legislation to provide whistleblower protections in the Australian Government public sector.^[56] The proposed legislation would establish a system whereby Commonwealth employees could make disclosures about ‘serious matters’ within their organisation, to other public service agencies or, in limited circumstances, publicly.

The Standing Committee recommended that the proposed legislation cover a broad range of participants in the Australian Government.^[57] A person who made a disclosure under the framework established by the proposed legislation would be protected from detrimental action in the workplace and receive immunity from criminal liability (including under secrecy offences), civil liability and administrative penalties.^[58]

The Standing Committee’s final recommendation, however, confined protected public interest disclosures to third parties to very narrow circumstances. A disclosure to a third party external to the public service would only be protected where the matter already had been disclosed internally or to an external authority, but had not been acted on in a reasonable time, and the matter threatened immediate serious harm to public health or safety.^[59]

At the time of writing, the Australian Government had not responded to the Whistleblower Protection report, although the Government has indicated that it intends to develop public interest disclosure legislation in 2009.^[60] Given the recent Standing Committee inquiry and report, and the Government commitment to introduce public interest disclosure legislation, the ALRC has confined its consideration in this Report to the interaction between the proposed public interest disclosure legislation and secrecy laws. This issue is discussed in Chapters 7 and 10.

The ALRC did, however, reaffirm recommendations made in previous reports that the Australian Government should legislate to introduce a comprehensive public interest disclosure scheme covering all Australian Government agencies.^[61] In the ALRC’s view, a robust public interest disclosure regime is an essential element in an effective system of open government. For the purposes of this Report, the ALRC proceeded on the basis that such legislation will be put in place and that it will largely reflect the recommendations made in the Whistleblower Protection report.

5.2 Specific secrecy offences

The ALRC concluded that the new general secrecy offence should not be the only criminal provision regulating the unauthorised disclosure of government information. We recognised 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 key principle is that specific secrecy offences should only be enacted where necessary to protect a public interest of sufficient importance to justify the imposition of a criminal sanction. As a general rule, the ALRC considers that the best way to ensure this is to include an express requirement that the unauthorised disclosure of information caused, or was likely or intended to cause, harm to a specified public interest.

The ALRC recognises, however, that, in very limited circumstances, this may not always be the most effective way to address the harm caused by the disclosure of some kinds of information and to achieve the balance required by the Terms of Reference. For example, specific secrecy offences prohibiting the disclosure of information obtained or generated by intelligence agencies—without the need to prove harm in every case—are justified by the sensitive nature of the information and the special duties and responsibilities of officers and others who work in and with such agencies.

Further, in very limited cases, and where the category of information protected is narrowly defined, regulatory agencies—such as taxation and social security, and corporate regulators—may also be able to justify specific secrecy offences that do not include an express harm requirement. This is because the public interest harmed by the unauthorised disclosure of information held by such agencies—that is, harm to the relationship of trust between the government and individuals that is integral to effective regulatory systems and the provision of government services—is not concrete enough to prove beyond reasonable doubt in a criminal prosecution.

The ALRC also developed other best practice principles in relation to specific secrecy offences, including that such offences should:

• differ in significant and justifiable ways from the recommended general secrecy offence;
• not extend to conduct other than the disclosure of information—such as making a record of, receiving, or possessing information—unless such conduct would cause, or is likely or intended to cause, harm to an essential public interest; and
• specify penalties that reflect the seriousness of the potential harm caused by the unauthorised conduct and the criminal culpability of the offender.

While the primary focus of secrecy offences is to prohibit the disclosure of information, many secrecy provisions also include exceptions that set out the circumstances in which the disclosure of information is permitted. Such provisions often reflect the need for the government to share information. The ALRC also made recommendations to ensure that specific secrecy offences are framed to facilitate appropriate information sharing, and are responsive to whole of government needs.

5.3 Administrative duties, practices and procedures

Secrecy provisions do not operate in a vacuum. Administrative practices and procedures play a key role in influencing the circumstances in which an individual discloses government information. In the final part of the Report, the ALRC focused upon the administrative secrecy framework in the Australian Government. We considered that secrecy provisions that impose administrative penalties on public sector employees have a central role to play—particularly where disclosure is inadvertent, there is no intention to cause harm, or where any potential harm caused by the disclosure is relatively minor. Administrative penalties allow misconduct to be addressed in the employment context, reserving criminal sanctions only for those unauthorised disclosures that warrant the very serious consequences of criminal charge and conviction.

The principal administrative secrecy provision in the Australian Government is reg 2.1 of the Public Service Regulations 1999 (Cth), which imposes a duty on all Australian Public Service (APS) employees not to disclose information where it is ‘reasonably foreseeable’ that the disclosure ‘could be prejudicial to the effective working of government’. The ALRC recommended that the scope of conduct regulated by reg 2.1 should be narrowed. That is, it should 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 further recommends that equivalent conduct standards should apply to most Commonwealth employees other than APS employees—such as employees of statutory authorities and ministerial staff.

Complementing this change, the ALRC made a number of recommendations to promote an effective information-handling culture within Australian Government agencies. Importantly, the ALRC recommended that every Australian Government agency should develop and publish information-handling policies and guidelines to clarify the application of secrecy laws to their information holdings. Other strategies canvassed by the ALRC to promote effective information handling include the development of memorandums of understanding between agencies that regularly share information and ongoing training and development for all employees on information-handling obligations relevant to their position.

Finally, the ALRC recognised the importance of independent oversight of the manner in which Australian Government agencies discharge their information-handling responsibilities. To this end, the ALRC recommended a role for the then proposed new Office of the Information Commissioner.

6. What next?

How would the Wikileaks situation fare under the recommended reforms to Commonwealth secrecy provisions? It provides an instructive ‘road test’ of the proposed new general secrecy provision. First, the initial ‘leaker’. Assume that he was a Commonwealth officer and that he disclosed government information. Was his disclosure reasonably likely or intended to harm essential public interests? Would it—

• damage the security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
• endanger the life or physical safety of any person; or
• prejudice the protection of public safety?

Maybe some of it had this potential. Then, assuming that Assange disclosed this information in ‘wikileaking’ it, this could come within the subsequent disclosure offence. Did he know, or was he reckless as to whether, the information was disclosed in breach of the proposed general secrecy offence? Did he then disclose the information intentionally, knowing, intending, or reckless as to whether the disclosure would harm one of the essential public interests? Then he could be liable to a criminal offence. Against such potential liability the ALRC recommended that a number of defences or exceptions could be raised, which are discussed in Chapter 7 of the report. With respect to so-called ‘public interest’ disclosures, or whistleblowing, outside formal channels—such as to Wikileaks—the protection would need to fit within the proposed public disclosure scheme under discussion. So, for instance, the ALRC considered that if the initial leaker were covered by such legislation and therefore had a defence to their own potential criminal liability, the next person (such as a journalist, or in this context, Wikileaks) would not commit an offence in disclosing such information.^[62]

Secrecy laws, and the prosecution of public servants for the unauthorised disclosure of Commonwealth information, can sit uneasily with the Australian Government’s commitment to open and accountable government.

The final report of the Australian Law Reform Commission’s comprehensive review of Commonwealth secrecy laws, Secrecy Laws and Open Government in Australia (ALRC Report 112) was tabled in federal Parliament today. The report is the product of a 15-month inquiry and makes 61 recommendations for reform. It sets out a new and principled framework designed to reinforce open and accountable government while ensuring adequate protection for Commonwealth information that should legitimately be kept confidential.

The Commissioner in charge of the inquiry, now ALRC President, Professor Rosalind Croucher stated “The management of information can be conceived of as a spectrum, with openness of information and protection of information at opposite ends. Secrecy provisions are situated at different points on the spectrum—at times emphasising protection; at times facilitating information handling, sharing and disclosure.”

The ALRC identified 506 secrecy provisions in 176 pieces of Commonwealth legislation, including 358 criminal secrecy offences. A number of key issues emerged during the inquiry, including the catch-all nature of some of the secrecy provisions and an over-reliance on criminal sanctions. The ALRC also identified considerable inconsistency in the framing and elements of specific secrecy provisions, reflecting their introduction at different times, using different language and often with widely ranging penalties.

Prof Croucher stated that a key focus of the ALRC report was to “wind back” the use of criminal sanctions, for the unauthorised disclosure of information, including the repeal of s 70 of the Crimes Act 1914, which has attracted consistent criticism over the years. “Criminal sanctions should only be imposed where the unauthorised release of information has caused, or is likely or intended to cause, harm to identified public interests.”

The principles underpinning the ALRC’s recommendations are that administrative and disciplinary frameworks should play the central role in ensuring that government information is handled appropriately. “In most cases, unauthorised disclosure of Commonwealth information can be dealt with through better education and training, improved information-handling practices and, where necessary, public service disciplinary procedures.”

The ALRC recommends that every Australian Government agency should develop and publish information-handling policies and guidelines to clarify the application of secrecy laws. The ALRC also recommends a role for the proposed new Office of the Information Commissioner to provide independent oversight of the manner in which Australian Government agencies discharge their information-handling responsibilities. Prof Croucher said the ALRC’s report suggested changes that would achieve greater clarity for public servants and others who handle Commonwealth information. She congratulated the inquiry team on the challenging task of identifying an appropriate balance between the protection of government information and open and accountable government.

Introduction

This briefing provides an overview of the ALRC’s Discussion Paper, Review of Secrecy Laws (DP 74).

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 and, in particular, to review the secrecy laws currently on the federal statute book. The Terms of Reference for the Inquiry ask the ALRC to consider the balance between the need to protect some Commonwealth information and the need to maintain an open and accountable government through providing appropriate access to information.

The ALRC has identified and considered 507 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties. DP 74 indicates the Inquiry’s current thinking in the form of specific reform proposals. In trying to move towards a more open and ‘pro-disclosure culture’, the ALRC proposes a substantial decrease in the use of criminal sanctions—limiting prosecutions to those unauthorised disclosures in which it is alleged that harm has been caused, or was likely to be caused, to a compelling public interest. In most cases, however, the ALRC proposes that concerns about the protection of Commonwealth information should be addressed through better education and training, improved information handling practices, and public service disciplinary procedures.

The proposals contained in DP 74 do not represent the final recommendations of the Inquiry. The ALRC is seeking further submissions and is undertaking a further round of national consultations on the proposals in DP 74. It is not uncommon for there to be some significant changes of approach between a Discussion Paper and Final Report.

In recent times, the ALRC’s approach to law reform has involved a mix of strategies including: legislation and subordinate regulations, official standards and codes of practice, industry and professional guidelines, and education and training programs. Proposals—and, later, recommendations—may be directed to the Attorney-General, to whom the Report is presented, and also to other government and non-government agencies, associations and institutions.

Discussion Paper structure

DP 74 is divided into 15 chapters. Proposals for reform are not spread evenly throughout. The early chapters provide mainly contextual or background material, which does not lend itself to specific reform proposals. Later chapters are more focused on technical aspects of the law and practice—it is in these chapters that the reform proposals are mainly found.

The chapters fall into four broad areas:

• concepts and comparisons;
• a general criminal secrecy offence;
• specific secrecy offences; and
• administrative duties, practices and procedures.

Concepts and comparisons

The appropriate handling of information is integral to the effective functioning of government. Secrecy laws are one element in a broader government-wide information handling framework. This framework includes other elements such as security classification systems, information sharing regimes, and agency-specific information-handling policies.

However, the legitimate need to maintain the secrecy of some information needs to be balanced against the growing commitment to increased openness and transparency in government.

Freedom of information laws are intended to facilitate the Australian public’s right to know what information the Government holds about them, as well as what information the Government uses to make its decisions. This places the Australian community in a better position to examine and discuss Government activities and to hold the Government to account. Secrecy laws can sit uneasily with such aspirations. The courts have also held that widely drafted secrecy provisions can infringe upon the implied right to freedom of political communication in the Australian Constitution.

In reviewing secrecy laws and considering proposals for reform, the ALRC has tried to balance the public interest in keeping some information confidential with the public interest in open and transparent government. The ALRC examined two contrasting approaches to secrecy laws—regulation based on categories of information that justify secrecy, and regulation based on preventing harm to the public interest caused by the unauthorised disclosure of information. The ALRC prefers the second approach, and proposes that information should only be protected by secrecy laws where disclosure of the information is intended to cause harm, or is likely to cause harm, to identified public interests.

The first five chapters of DP 74 set out this conceptual framework in more detail, including a discussion of other relevant legislation—such as freedom of information, archives and privacy legislation—and provides an overview of confidentiality and secrecy obligations imposed by Commonwealth legislation and the common law. Consistently with the ALRC’s harm-based approach to non-disclosure provisions, the ALRC proposes that the ‘secrecy exemption’ contained in s 38 of the Freedom of Information Act 1982 (Cth)—which provides that documents or information subject to certain secrecy provisions need not be disclosed under the Freedom of Information Act—should be repealed.

A new general offence

Chapter 6 examines the role of administrative, civil and criminal penalty provisions in regulating the disclosure of Commonwealth information, as well as the need for a general overarching secrecy offence applying to all Commonwealth information and all ‘Commonwealth officers’. The chapter proposes that the existing general secrecy offences in the Crimes Act should be repealed and replaced by a new general secrecy offence in the Criminal Code. The existing offence in s 70 of the Crimes Act imposes criminal liability where a Commonwealth officer discloses information ‘which it is his or her duty not to disclose’, but does not require that the disclosure harm the public interest in any way.

In Chapter 7, the ALRC proposes that the new general secrecy offence should only impose criminal liability where a particular disclosure did, was reasonably likely to, or was intended to:

• harm the national security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction, the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue;
• endanger the life or physical safety of any person;
• pose a serious threat to public health or public safety;
• have a substantial adverse effect on personal privacy; or
• have a substantial adverse effect on a person in respect of his or her lawful business or professional affairs or on the business, commercial or financial affairs of an organisation.

Chapter 8 considers some of the essential elements of the proposed new offence—including who should be covered. The ALRC proposes that initial unauthorised disclosures by Commonwealth officers, including Commonwealth contractors, should be covered, and also that subsequent disclosures by third parties should be covered in some circumstances. A subsequent disclosure by a third party would be a criminal offence where the information was disclosed by a Commonwealth officer in breach of the proposed general secrecy offence; and the person knew, or was reckless as to whether, the information had been disclosed in breach; and the person knew, intended, or was reckless as to whether, the subsequent disclosure of the information would harm, or was reasonably likely to harm, one of the public interests set out above.

Chapter 9 considers what exceptions and defences should be available under the proposed general secrecy offence, and what penalties should apply for breach. In particular, Chapter 9 considers the interaction between the new offence and the Australian Government’s proposal to develop public interest disclosure, or ‘whistleblower’ protection legislation in the course of 2009. Due to the timing of the secrecy Inquiry, it may not be possible for the ALRC to make concrete recommendations in relation to this issue but the ALRC has expressed the preliminary view that the two regimes should be consistent, and that comprehensive public interest disclosure legislation is preferable to developing a public interest exception to the general secrecy offence.

Specific secrecy offences

In proposing a general secrecy offence, the ALRC is not suggesting that this should be the only criminal offence provision regulating the disclosure of Commonwealth information. The general secrecy offence is intended to serve as an umbrella offence applying to all current and former Commonwealth officers. However, a plethora of existing specific secrecy offences need to be reviewed in the light of the proposed new general secrecy offence and the policy basis for that offence. In Chapters 10 to 12, the ALRC develops proposals to promote consistency in, and simplification of, Commonwealth secrecy offences—including by repealing a significant number of existing offences.

For example, the ALRC proposes that specific secrecy offences should generally incorporate a requirement that, for an offence to be committed, there must be a reasonable likelihood that the disclosure of information will cause harm to some specified public interest.

The ALRC also proposes that the maximum penalties provided by specific secrecy offences, which vary from a fine of $110 to imprisonment for 25 years, be made more consistent. There is currently wide variation in the maximum penalties provided by secrecy offences protecting very similar types of information.

Most importantly, the ALRC examines instances of substantial replication between the proposed new general secrecy offence and specific secrecy offences, which might justify the repeal of many of the latter offences. It also suggests a process for implementing ongoing review of existing secrecy offences that is informed by detailed drafting directions and other guidance against which existing and proposed secrecy offence provisions can be evaluated.

Administrative duties, practices and procedures

Statutory secrecy provisions and criminal offences play an important role in protecting against the harms caused by the disclosure of some government information. However, the most effective way to prevent the unauthorised disclosure of information is to ensure that individual public servants and others who deal with government information on a regular basis are guided by effective information-handling policies and practices.

Secrecy provisions in the Australian Public Service (APS) Code of Conduct should provide a clear statement to APS employees and the public about the level of protection of Commonwealth information that can be expected from APS employees. In Chapter 13, the ALRC makes several proposals aimed at clarifying and consolidating the administrative secrecy obligations imposed on public servants. In particular, the ALRC proposes that the APS Code of Conduct only apply where the disclosure of information is reasonably likely to harm the effective working of government. The ALRC also suggests an interpretive framework for determining when disclosure is likely to cause such harm including the requirement that a disciplinary authority should have regard to the likelihood that the information would be subject to release under the Freedom of Information Act or through some other means.

Many people that have access to Commonwealth information are not APS employees—they may be employed under another statutory regime, employees of a state or territory government, or private sector contractors. In Chapter 14, the ALRC proposes models for harmonising the administrative secrecy regimes that apply to other Commonwealth employees—such as members of the Australian Defence Force, and the Australian Federal Police and employees of public authorities—with the Public Service Act framework. In addition, the ALRC makes several proposals regarding confidentiality provisions in government contracts and in the terms and conditions of appointment for members of boards and committees to better protect confidential Commonwealth information.

Finally, in Chapter 15, the ALRC considers the tools available to government agencies to foster effective information-handling practices, for example, through developing and implementing information-handling policies, engaging employees in training programs, and maintaining suitable ICT infrastructure. In order to facilitate information sharing, the ALRC proposes that Australian Government agencies that regularly share information with other agencies or bodies should enter into memorandums of understanding setting out the terms and conditions for the exchange of information.

Further information

The full Discussion Paper can be downloaded from the ALRC’s website www.alrc.gov.au.

Hard copies and CDRoms are available from the ALRC.

Submissions on the ALRC’s proposals are due by 7th August. The final report and recommendations in this Inquiry are due to be provided to the Attorney-General by 30 October 2009.

The Australian Law Reform Commission (ALRC) today released a Discussion Paper for its current inquiry into federal secrecy laws—Review of Secrecy Laws (DP 74, June 2009)—which makes 65 proposals for reform.

The ALRC is seeking community feedback about how to balance a growing commitment to increased openness and transparency in government with the legitimate need to maintain the secrecy and confidentiality of some Commonwealth information. 

ALRC President, Professor David Weisbrot, stated “Secrecy provisions are generally found in laws relating to national security and in areas in which citizens have a right to expect that their sensitive personal information will be protected from unauthorised disclosure—such as the information provided to the Tax Office or Medicare. That’s appropriate and unsurprising. However, the ALRC’s ‘mapping’ of the federal statute book has identified 507 secrecy provisions scattered across 175 pieces of legislation, including 358 distinct secrecy offences carrying a wide variety of criminal penalties. That’s more reflective of the old culture of secrecy than the current preference for openness.

“Information handling, management and protection by the Commonwealth should be seen as part of a continuum. At the ‘open government’ end, there’s information that should be disclosed as a matter of course. Most departments and agencies now maintain websites that provide an enormous amount of information. This is desirable, both in the interests of promoting open and accountable government, as well as being efficient—the more information that’s publicly available, the fewer requests, questions and FOI applications departmental officers have to handle.

“At the opposite end, there is the information that is strictly secret and closely protected—most obviously, information relating to national security. Even at this end of the spectrum, however, the system allows for information-sharing among government agencies and private partners where necessary, and there may be circumstances in which secret information should be revealed through prescribed ‘whistleblower’ mechanisms.”

ALRC Commissioner in charge of the Inquiry, Professor Rosalind Croucher, commented “In trying to shift the system towards a more open and ‘pro-disclosure culture’, the ALRC proposes a substantial decrease in the use of criminal sanctions—limiting prosecutions to those unauthorised disclosures in which it is alleged that harm has been caused, or was likely to be caused, to a compelling public interest. These include harm to: national security, defence or international relations; law enforcement operations; the physical safety of a person; or public health.  Of course, the offence is more severe where the person intends to cause harm or is recklessly indifferent to the consequences. Mostly, however, it seems preferable to deal with these issues through better education and training, improved information handling practices, and by utilising public service disciplinary procedures. 

“The key focus of the ALRC’s proposed reforms is on achieving much greater clarity for the public servants and others who handle Commonwealth information. This involves creating a new general secrecy offence applicable to Commonwealth officers; substantially consolidating the scattered specific offences, based on a common set of principles; and imposing a rationalised penalty structure. Importantly, we also propose recasting the Australian Public Service Code of Conduct in this area to clarify the duty owed by officers.

“Finally, in doing all of this, we must be careful to fit in with the surrounding matrix of laws on Freedom of Information, privacy and whistleblower protection—areas which are also currently under review.” 

Submissions on the ALRC’s proposals are due by 7 August 2009.  The final report and recommendations in this Inquiry will be provided to the Attorney-General at the end of October. 

The Australian Law Reform Commission (ALRC) today announced a national two day phone-in and new online discussion forum as part of its commitment to engaging in widespread community consultation on reform of Commonwealth secrecy laws. 

Anyone who has ever been involved in handling Commonwealth information will have the chance to speak out about their personal experiences and concerns in a national secrecy phone-in on Wednesday 11 February and Thursday 12 February. The ALRC is also launching a new consultation vehicle through its Talking Secrecy online forum.

ALRC President, Professor David Weisbrot, said:

“Consultation is part of the ALRC’s DNA and we are determined to use new technologies to expand that process. The online forum and national phone-in together comprise the next critical steps in the ALRC’s consultation process following the recent release of the Issues Paper, Review of Secrecy Laws (IP 34, 2008). This paper seeks feedback about how to balance the need to maintain an open and transparent government, while still protecting some Commonwealth documents and information—for the purposes of national security, for example.

“The ALRC now has mapped over 500 secrecy provisions spread across 173 pieces of legislation and these—associated with a myriad of administrative, civil and criminal penalties—present a complex and confusing scenario of options for individuals handling Commonwealth information.

“Some secrecy provisions—normally pertaining to defence and security—regulate the activities of anyone, including the media, who comes into possession of Commonwealth documents or information, imposing obligations on them. If the individual handles the information incorrectly, he or she may face heavy penalties, including jail.”

Commissioner-in-charge of the Secrecy Inquiry, Professor Rosalind Croucher, said that the phone-in will enable individuals to speak about their personal experiences with complete anonymity and will assist in shaping the development of proposals, and ultimately recommendations, for workable laws and practices.

“To facilitate more public discussion about secrecy laws, the ALRC’s Talking Secrecy online forum will encourage interactive comments and debate that will run the course of the Inquiry. This is a first for the ALRC.

“The ALRC would like to hear people’s views about a range of questions such as: do secrecy laws stop you from doing your job; what information, if any, should be kept secret; how easy is it to comply with secrecy laws; when should you be allowed to disclose Commonwealth information; and have you or someone you know been in trouble for breaching a secrecy law and, if so, what happened?”

To participate in the secrecy phone-in call 1800 760 291 between 8:00am and 8:00pm (EST) on Wednesday 11 February and Thursday 12 February 2009 (calls are free from landlines but calls from mobiles will incur a charge).

The Talking Secrecy online forum can be accessed at http://talk.www.alrc.gov.au.

The Australian Law Reform Commission (ALRC) today released a community consultation paper for its current inquiry into Commonwealth Secrecy laws.—Review of Secrecy Laws (Issues Paper 34)—which seeks ideas and feedback about how we balance the need to maintain the secrecy and confidentiality of some government documents with a commitment to increased openness and transparency.

ALRC President, Professor David Weisbrot stated “The federal statute book has become riddled with secrecy provisions, which make unauthorised disclosure of government information a criminal offence.  So far the ALRC has identified over 370 distinct secrecy provisions scattered across 166 pieces of legislation—many more than we expected to find. 

“Some of these laws relate to matters of national security or other classified or sensitive information, and seem appropriate.  However, we’re less sure about the need for secrecy provisions in such laws as the Dental Benefits Act, the Dairy Produce Act or the Port Statistics Act. 

“A threshold question is whether we should ever charge someone with a crime for disclosing information that a citizen has the right to obtain under Freedom of Information laws?  And how do we reconcile the increasing need of public officials to share information with each other and with the private sector to tackle the big issues facing us, such as terrorism, climate change and dealing with the global financial crisis?

“We seem to be caught in a time warp, between an old culture of secrecy in government and more modern ideas about the fundamental importance to democracy of ensuring openness and accountability.”

The Commissioner in charge of the Inquiry, Professor Rosalind Croucher, points out that “Mapping all of these secrecy provisions and penalties has been a massive task for the ALRC, but has demonstrated the critical need for rationalisation and harmonisation of these laws.

“The mapping exercise highlights the lack of clarity and consistency across Secrecy laws.  For example, sometimes these provisions are contained in primary legislation and sometimes they are buried away in regulations.  Sometimes unauthorised disclosure amounts to a criminal offence in itself, while in other cases we require proof that the disclosure is likely to cause harm to Australia’s security or other national interests.  And why would disclosing the identity of a person in the witness protection program carry up to ten years imprisonment, when disclosing the identity of an ASIO agent has a maximum penalty of only one year?

“This is both very confusing and potentially damaging to the person who has to decide how to treat the information they have received.  A wrong call could lead to heavy fines and severe penalties, including a jail term.  These are not just abstract concerns—we’ve had a few convictions in the courts recently, including the Allan Kessing and Goreng Goreng cases. 

“The ALRC’s task is to develop a clearer and more workable system that distinguishes between those circumstances in which strict confidentiality and secrecy are warranted, and those in which openness should be the rule.”

The Review of Secrecy Laws and further information about this Inquiry are available from this website.  The closing date for written submissions in response to the Issues Paper is 19 February 2009. 

The ALRC has been asked to submit its final report and recommendations in this Inquiry to the Attorney-General in October 2009. 

The Australian Law Reform Commission (ALRC) welcomed the announcement today by the Commonwealth Attorney-General, the Hon Robert McClelland MP, of new Terms of Reference for the ALRC to review secrecy provisions in federal legislation.
The Terms of Reference ask the ALRC to focus on:

• ‘the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government’;
• ‘the increased need to share information within and between governments, and with the private sector’; and
• achieving more ‘comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information’.

ALRC President Professor David Weisbrot noted that the Commission has been actively involved in this general area for some time.

“Over the last decade or so, the ALRC has provided reports and recommendations to government about improving freedom of information laws, privacy laws and practices, the protection of classified and security sensitive information, the preservation of archival resources, and client legal privilege in federal investigations.

“Federal legislation currently contains a large number of secrecy and confidentiality provisions that impose duties on public servants not to disclose information that comes to them by virtue of their office—and many of these provisions create serious criminal offences for unauthorised disclosure, whether or not that results in any harm to the national interest.

“This inquiry fits squarely into our continuing effort to promote more open, transparent and accountable government in Australia. In fact, in 2004, the ALRC recommended a major review of federal secrecy provisions—and so we are pleased to be the body asked to undertake this project.

Professor Rosalind Croucher, Commissioner in charge of the new inquiry, stated that “Our first task is to map all of the secrecy and confidentiality provisions, which are found across a wide range of laws and regulations.

“Given the importance of this area, there is a pressing need to consolidate the scattered legislation, and ensure the terms are consistent with the Constitution and harmonised across the statute book. Most of all, we need to balance the need for protection of Commonwealth information with an underlying ethos that places a premium on maintaining an open and accountable government by providing access to information wherever possible.”

In keeping with its standard procedures, the ALRC will prepare one or more discussion documents for widespread community consultation, before providing its final report and recommendations to the Attorney-General by 31 October 2009.