Process of reform

Mapping secrecy laws

1.20       An integral component of the background research undertaken by the ALRC for this Inquiry was a ‘mapping exercise’ to identify and analyse the multitude of secrecy provisions in Commonwealth legislation. The 506 secrecy provisions identified by the ALRC are scattered throughout 176 pieces of primary and subordinate legislation administrative responsibility for which is spread across 19 departments of state.[17] Approximately 70% of the statutory secrecy provisions identified expressly impose criminal penalties.[18]

1.21       The ALRC has used this map of secrecy laws as a basis for comparing and analysing the scope of current secrecy laws and to inform the development of recommendations for reform. Figures drawn from the data are expressed throughout this Report in approximate percentage values, usually rounded to the nearest 5%. Percentage values will differ according to whether the assessment includes all secrecy provisions or only offence provisions.

Advisory Committee

1.22       A key aspect of the ALRC’s reform process is to establish an expert Advisory Committee or ‘reference group’ to assist with the development of its inquiries. In this Inquiry, the Advisory Committee included a federal court judge, senior officers of Australian Government agencies, academics, senior lawyers, and an FOI consultant.[19]

1.23       The Advisory Committee has particular value in helping the ALRC to identify the key issues and determine priorities as well as providing quality assurance in the research, writing and consultation processes. The Advisory Committee also assists with the development of proposals and recommendations for reform. Ultimate responsibility for the Report and recommendations, however, remains with the Commissioners of the ALRC.

1.24       The Advisory Committee met for the first time on 30 October 2008, to consider the questions to be included in the Issues Paper. It met for the second time on 19 March 2009, to consider the proposals contained in the Discussion Paper. A third meeting was held on 24 September 2009 to obtain input on options for reform.

Community consultation and participation

1.25       The Terms of Reference indicate that the ALRC ‘is 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.[20] 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.

Consultation meetings

1.26       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. A full list of agencies, organisations and individuals consulted is set out in Appendix 2.

Consultation documents

1.27       Two community consultation documents—an Issues Paper and a Discussion Paper[21]—were produced before proceeding to this 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.


1.28       The ALRC received 46 submissions in response to the Issues Paper, Review of Secrecy Laws (IP 34) and 38 submissions in response to the Discussion Paper, Review of Secrecy Laws (DP 74). A list of submissions is set out in Appendix 1. A number of individuals, groups and federal bodies made submissions to both IP 34 and DP 74. The ALRC acknowledges the considerable amount of work in preparing submissions and thanks all individuals and organisations who made submissions to this Inquiry.

Online forum and national phone-in

1.29       In this Inquiry the ALRC utilised two additional strategies for consultation—an online forum and a national phone-in.

1.30       The national secrecy phone-in was conducted on 11 and 12 February 2009. 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.

1.31       To facilitate public communication in relation to the Inquiry, the ALRC also initiated a ‘Talking Secrecy’ online forum.[22] After moderation, the ALRC posted 12 contributions to the online forum. Comments 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.

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

[2]           Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 1.

[17]         These provisions are listed in a table in Appendix 4.

[18]         These provisions are listed in the first section of the table in Appendix 4.

[19]         A list of Advisory Committee members can be found in the List of Participants at the front of this Report.

[20]         B Opeskin, ‘Measuring Success’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2005), 202.

[21]         Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008); Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009).

[22]         Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC 108 (2008), [1.92]–[1.93].