Balancing secrecy, freedom of expression and open government

2.80       The challenge for the ALRC in this Inquiry is 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, is 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.

2.81       The appropriate role for secrecy provisions in an era of open government was acknowledged from the outset during the debate about FOI laws in the 1970s. When commenting on the Freedom of Information Bill 1978 (Cth), the Senate Standing Committee on Legal and Constitutional Affairs noted that the philosophy of open government appears to conflict with that underlying secrecy provisions.[106] The Senate Standing Committee also criticised what it then described as ‘a fashionable contemporary drafting practice’:

to insert in every new statute a standard provision making it an offence for an official governed by the statute to disclose without authorisation any information of which he has gained knowledge officially.[107]

2.82       The conflict between the secrecy required of Commonwealth officers and open government—as a philosophy of government—remains today. For the individual Commonwealth officer this may generate uncertainties:

the individual official—and particularly the public servant—is often enough caught between the present commitment both of modern legislation and of the common law to open government and the enduring demands of illiberal official secrecy regimes.[108]

2.83       In this Report, the ALRC makes a number of recommendations aimed at clarifying the obligations of confidentiality imposed on Commonwealth officers and others handling government information. Reflecting the commitment towards openness expressed in recent policy initiatives of the Australian Government, including Government 2.0 and the proposed reforms relating to the FOI Act, the ALRC also recommends the reform of secrecy laws so that unauthorised disclosures are only criminalised in circumstances where the disclosure causes, or is likely or intended to cause, harm to an essential public interest.

2.84       The recommendations also reflect Australia’s international obligations under the ICCPR. The Australian Law Reform Commission Act 1996 (Cth) expressly directs the ALRC that in performing its functions ‘the Commission must have regard to all of Australia’s international obligations’ that are relevant to the matter in the Terms of Reference.[109] In particular, the ALRC ‘must aim at ensuring that the laws, proposals and recommendations it reviews, considers or makes’, are, ‘as far as practicable’ consistent with the ICCPR.[110]

2.85       In this Inquiry, the ALRC recommends a new and principled framework that strikes a fair balance between the public interest in open and accountable government and protecting essential public interests—such as national security, defence, law enforcement and investigation, and public safety. This requires a focus on the idea of the public interest, both in the general sense of an overriding justification for government action and the specific sense of those matters that are regarded as so essential, or reflective of ‘essential public interests’, as to require specific protection through secrecy provisions.

[1]           International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976).

[10]         Section 70 of the Crimes Act 1914 (Cth) is set out in Appendix 5.

[11]         G Terrill, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond (2000), 45.

[106]       Parliament of Australia—Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and Aspects of the Archives Bill 1978 (1979), 236.

[107]       Ibid, 233.

[108]       P Finn, Official Information, Integrity in Government Project: Interim Report 1 (1991), 94.

[109]       Australian Law Reform Commission Act 1996 (Cth) s 24(2).

[110]       Ibid s 24(1)(b).