ALRC reforms strike a blow to the old culture of secrecy

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.