In the final part of the Report, the ALRC focuses upon the administrative secrecy framework in the Australian Government. The ALRC considers that secrecy provisions that impose administrative penalties on public sector employees have a central role to play—particularly where disclosure is inadvertent, there is no intention to cause harm, or where any potential harm caused by the disclosure is relatively minor. Administrative penalties allow misconduct to be addressed in the employment context, reserving criminal sanctions only for those unauthorised disclosures that warrant the very serious consequences of criminal charge and conviction.
The principal administrative secrecy provision in the Australian Government is reg 2.1 of the Public Service Regulations 1999 (Cth), which imposes a duty on all Australian Public Service (APS) employees not to disclose information where it is ‘reasonably foreseeable’ that the disclosure ‘could be prejudicial to the effective working of government’. The ALRC recommends that the scope of conduct regulated by reg 2.1 should be narrowed. That is, it should only apply to disclosures that are ‘reasonably likely’ to result in such prejudice. This reform recognises the importance of promoting information sharing in appropriate circumstances. The ALRC further recommends that equivalent conduct standards should apply to most Commonwealth employees other than APS employees—such as employees of statutory authorities and ministerial staff.
Secrecy provisions do not operate in a vacuum. Administrative practices and procedures play a key role in influencing the circumstances in which an individual discloses government information. The ALRC makes a number of recommendations to promote an effective information-handling culture within Australian Government agencies. Importantly, the ALRC recommends that every Australian Government agency should develop and publish information-handling policies and guidelines to clarify the application of secrecy laws to their information holdings. Other strategies canvassed by the ALRC to promote effective information handling include the development of memorandums of understanding between agencies that regularly share information and ongoing training and development for all employees on information-handling obligations relevant to their position.
Finally, the ALRC recognises the importance of independent oversight of the manner in which Australian Government agencies discharge their information-handling responsibilities. To this end, the ALRC recommends a role for the proposed new Office of the Information Commissioner.