4.3 In Chapter 2, the ALRC considers the role of secrecy in the context of modern trends to more open and accountable government, including the development of freedom of information (FOI) laws, and the need to share government information more widely across government and with the private sector. In this section, the ALRC considers whether statutory secrecy provisions still have a legitimate role to play in protecting Commonwealth information.
Submissions and consultations
4.4 In the course of this Inquiry, there was sustained support for the principle of open access to government information. For example, the Law Council of Australia commented that:
the principle of open and accountable government, which underpins the [Freedom of Information Act 1982 (Cth) (FOI Act)], is concerned with ensuring Governments, Ministers and other public officials behave appropriately and in accordance with public expectations. This includes allowing the public to scrutinise whether a public or elected official has misused power, misrepresented the truth, maintained false records, made a decision on improper grounds, etc. Further, it allows the public to investigate the basis upon which certain decisions have been made and provides an avenue to access information held by government instrumentalities which will better inform debates about matters of public interest.
4.5 To similar effect, the Media, Entertainment and Arts Alliance argued that:
democracy requires accountability and that accountability is best ensured through open government. In its policy document released prior to the 2007 Federal Election, the [Australian Labor Party] identified a ‘culture of concealment’ which had grown up within the government and public service and promised to ‘drive a cultural shift across the bureaucracy to promote a pro-disclosure culture’. The Alliance supports this objective which we believe to be greatly in the public interest.
4.6 However, stakeholders also recognised the need to protect government information in some circumstances. The Australia’s Right to Know (ARTK) coalition argued that, while access to government information is ‘an essential right’ of every Australian and ‘fundamental to openness, transparency and accountability in government’, access could be restricted in certain limited circumstances:
Any approach to the question of secrecy should be that public access should only be excluded if it is in the public interest. More narrow and restrictive political or bureaucratic considerations that persist in much of the current legislation should not be relevant considerations.
4.7 While the Australian Government Attorney-General’s Department (AGD) acknowledged that ‘openness and accountability are very important principles in a modern democracy’, it also emphasised that secrecy provisions ‘have a place in modern government because there is still a public interest in certain information being protected from general disclosure’.
4.8 The Australian Securities and Investments Commission (ASIC) noted that a high proportion of the information it receives and develops is confidential. It considered that unauthorised disclosure of such information has the potential to impact adversely on both public and private interests, including the effective functioning of the Australian economy as well as the effective functioning of ASIC such as the conduct of investigations. Such disclosures might also impact on the free and frank exchange of information with government, regulated entities and foreign regulators.
4.9 ASIC emphasised that while general law obligations were useful, they were not ‘without uncertainty’:
ASIC believes that, given the significance and materiality of the issue of disclosure, there should be certainty in relation to the scope of confidentiality obligations that apply to Commonwealth bodies and the persons who perform services for them. That certainty would best be achieved by the operation of a statutory duty on Commonwealth officers not to disclose confidential information.
4.10 A number of other agencies also highlighted the importance of secrecy provisions with respect to their particular operations. For example, the Australian Bureau of Statistics (ABS) considered that secrecy laws are necessary to maintain the integrity and quality of the statistics that the ABS produces:
High quality statistical information is fundamental to effective government. Assuring the secrecy of information provided to the ABS is essential to establishing its quality. The secrecy provisions of the Census and Statistics Act 1905 enable the ABS to make this assurance.
4.11 The ABS noted that this assurance is based on an ‘unwritten compact’ between the ABS and census respondents that their personal information will be protected. This compact is underwritten by the secrecy provisions in the ABS governing legislation.
4.12 Other federal bodies also emphasised the importance of secrecy provisions in areas that deal with personal information. The Australian Taxation Office (ATO), for example, stressed that it was ‘fundamental’ to the administration of taxation laws ‘that all information concerning the affairs of a particular taxpayer is protected by a tax secrecy provision’. The expectations of the Australian community in relation to the handling of personal information were also emphasised by the Department of Employment, Education and Workplace Relations (DEEWR):
there is a level of community expectation that information held by the Department will be protected from not only the unauthorised disclosure of that information but also the inappropriate collection and use of that information. It is generally recognised that the harm that can be caused to the interests of an individual or the Commonwealth from the inappropriate disclosure of information held by the Department can be significant. Because of this, there is a recognised need for there to be consequences flowing from such inappropriate action.
4.13 Both the Treasury and the ATO submitted that taxation secrecy provisions were ‘not inconsistent’ with measures ‘designed to increase the openness and transparency of government’, including FOI laws. The Treasury stated that taxation secrecy provisions are not designed to conceal the deliberations of government but to give effect to the legitimate expectations of Australia’s taxpayers that the sensitive personal information they are required to provide will be appropriately protected.
4.14 The Department of Human Services (DHS) drew attention to the broad role that secrecy provisions fulfil:
Secrecy laws … serve a number of functions not fully realised in reliance on other laws … They ensure individuals who handle sensitive information have a clear sense of personal responsibility for the protection of that information, not just Australian Public Service employees; they support public confidence in the appropriate management of private information; they provide practical acknowledgement that some information in the possession of the government is more inherently sensitive, and therefore worthy of greater protection, than other information; and they provide a legitimate basis for agencies to refuse to disclose information in appropriate circumstances, and to recover sensitive information inappropriately disclosed. While other legal mechanisms achieve these outcomes to a greater or lesser extent, they are generally not as targeted and direct as secrecy laws can be.
4.15 Information in the hands of intelligence agencies was also seen to require the protection of secrecy provisions. The Australian Intelligence Community (AIC) submitted that ‘a statutory duty on Commonwealth officers not to disclose information is fundamental to the operation of AIC agencies’.
4.16 The Australian Transaction Reports and Analysis Centre (AUSTRAC) reiterated the relevance and necessity of secrecy provisions to prevent the disclosure of information that:
may not be in the public interest or which might be harmful to individuals or
relates to persons that are the subject of reports to the AUSTRAC CEO under the [Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)] and the [Financial Transaction Reports Act 1988 (Cth)], or who are reporting entities or dealers under those Acts.
4.17 Some stakeholders cited other reasons for needing secrecy provisions, such as the ability to ensure that commercially-sensitive information is protected. For example, the Department of Climate Change submitted that:
In particular circumstances, it is both necessary and desirable to impose a statutory obligation on Commonwealth officers not to disclose information. In the case of the [National Greenhouse and Energy Reporting Act 2007 (Cth)], this is necessary to ensure that commercially sensitive information reported under the Act by corporations is protected, and to ensure confidence in the integrity of the reporting system.
4.18 In Chapter 3, the ALRC discusses the application of the general law to the protection of Commonwealth information—including the common law duty of loyalty and fidelity owed by employees and the equitable duty of confidence. The chapter highlights the difficulties and uncertainties that have arisen in applying these legal principles—developed in the private sector—to the protection of information in the public sector.
4.19 The recommendations in this Report are aimed at providing a conceptual framework for the protection of information in the Australian Government public sector that takes account of the various public interests that do not operate to the same degree in the private sector—including, for example, the need for openness and accountability, the requirement to release information under FOI laws, and the shift to a pro-disclosure culture in government. The ALRC recognises that a balance must be found between the principles of open government and the need to protect Commonwealth information where unauthorised disclosure would harm identified public interests.
4.20 The problems identified throughout this Inquiry have not been in relation to the existence of secrecy provisions, as such, but rather in relation to the scope and number of provisions, and the lack of clarity in particular provisions. The ALRC’s view is that there is a legitimate need for statutory secrecy provisions regulating the handling of Commonwealth information, provided that they are clear and consistent, and directed at protecting important public interests. In the following section, the ALRC considers whether such protection is best achieved by relying on the criminal or civil law, or through the use of administrative provisions and penalties.