Media Briefing – Review of Secrecy Laws: Discussion Paper 74

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.