Do we need secrecy laws in an open society?

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.