Policy guidance and drafting directions

11.48 The AGD has a central role in developing and implementing criminal law policy. The Department is responsible for assisting the Attorney-General to ensure that criminal law enforcement provisions are framed in a sound, effective and coherent manner. It scrutinises all offence, civil penalty and law enforcement provisions in proposed legislation and provides policy advice and assistance to agencies developing such provisions.[43] As part of this role, the AGD has produced the Guide to Framing Commonwealth Offences,[44]which consolidates the principles and precedents relevant to the framing of offences and enforcement provisions in Commonwealth laws.

11.49 Drafting directions are instructions issued by the head of the Office of the Parliamentary Counsel. The principal function of the Office of Parliamentary Counsel is to draft bills for introduction into Parliament and draft amendments to bills. All drafters are required to comply with drafting directions, to help ensure consistency.[45]

11.50 Drafting directions already cover some aspects of drafting secrecy provisions. Drafting Direction No. 3.5 provides that secrecy provisions should take into account the possibility that information may be the subject of inquiry by the Parliament or a parliamentary committee and that, in such cases, the secrecy provision should specify the circumstances in which information may be disclosed to the Parliament or parliamentary committee.[46]

11.51 Drafting Direction No. 3.5 states that legislative drafters should have regard to the Guide to Framing Commonwealth Offences in drafting provisions covered by the Guide, but should bear in mind that:

the Guide is neither binding nor conclusive, and that Commonwealth criminal law policy necessarily develops in response to changes in Government policy, novel legal issues, and emerging enforcement circumstances.[47]

11.52 In DP 74, the ALRC proposed that the AGD should incorporate guidance in the Guide to Framing Commonwealth Offences on: the circumstances in which the enactment of a specific secrecy offence may be justified; the drafting of secrecy offences; and benchmark penalties.[48] While only a few stakeholders commented on these proposals, those that did so, supported them.[49]

ALRC’s views

11.53 The recommendations made by the ALRC in this Report are intended to establish a principled basis for the drafting of secrecy provisions, based on an understanding of the appropriate relationship between the public interests protected by secrecy and the public interests in open and accountable government and freedom of expression.

11.54 There is a need, in this regard, for both general policy guidance, including in relation to when the enactment of a specific secrecy offence may be justified, and more detailed drafting advice. The Guide to Framing Commonwealth Offences would be an appropriate source of guidance for agencies reviewing current secrecy offences or developing new legislative proposals.

11.55 If required, drafting directions issued by the Office of Parliamentary Counsel could draw from this document to provide more detailed directions aimed at technical drafting matters, giving effect to the desired policy framework.

11.56 In conjunction with the development and publication of guidance on when the enactment of specific secrecy offences is justified and how such offences should be framed, the AGD should have a role in encouraging the proposed ongoing review of existing secrecy offences.

Recommendation 11–2 The Australian Government Attorney-General’s Department should incorporate guidance on the principles contained in Recommendations 8­–1 to 8–3, 9–1 to 9–9 and 10–1 to 10–4 in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, including:

  1. the circumstances in which the enactment of a specific secrecy offence will be justified; and
  2. the elements of specific secrecy offences, including the requirement that the disclosure cause harm to an essential public interest.

[43] Attorney-General’s Department, Organisational Structure: Criminal Law and Law Enforcement Branch (2009) <www.ag.gov.au/www/agd/agd.nsf/Page/OrganisationalStructure_CriminalLawBranch> at 30 November 2009.

[44] Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007).

[45] Office of Parliamentary Counsel, OPC Drafting Directions Series <www.opc.gov.au/about/draft_
directions.htm> at 19 November 2009.

[46] Parliamentary Counsel, Drafting Direction No 3.5: Offences, Penalties, Self-Incrimination, Secrecy Provisions and Enforcement Powers, Office of Parliamentary Counsel, 13 November 2007, [58]–[62].

[47] Ibid, [2].

[48] Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposals
11–7, 12–5.

[49] Department of Health and Ageing, Submission SR 81, 28 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.