Official secrecy has a necessary and proper province in our system of government. A surfeit of secrecy does not.
Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.
Against this background, on 5 August 2008, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to conduct an Inquiry into options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government by providing appropriate access to information. The lack of consistency in secrecy provisions has been identified in a number of prior reviews, leading up to and prompting this Inquiry—including three prior reviews by the ALRC. The ALRC was also asked to consider the increased need to share information within and between governments and with the private sector.
The management of information can be conceived of as a spectrum, with openness of information and protection of information as opposite ends of that spectrum. Secrecy provisions are situated at different points in the spectrum—at times emphasising protection; at times facilitating information handling, sharing and disclosure.
The appropriate handling of information is integral to the effective functioning of government. Secrecy laws are one element in the broader information handling framework across government—including elements such as security classification systems, information-sharing regimes, and agency-specific information-handling policies. As part of the spectrum of information handling in the public sector, secrecy laws may serve a legitimate role in generating personal responsibility for the handling of Commonwealth information.
In the course of this Inquiry, the ALRC undertook a comprehensive mapping exercise to catalogue the secrecy provisions currently on the federal statute book. The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences—a ‘plethora’ of provisions. This mapping exercise provided a sound evidence base for the ALRC’s analysis of secrecy provisions and the recommendations for reform in this Report.
A number of key issues emerged—including the catch-all nature of some of the provisions and an over-reliance on criminal sanctions. The ALRC also identified considerable inconsistency in the framing and elements of specific secrecy provisions, reflecting their introduction at different times, using different language and often with widely ranging penalties.
The challenge for the ALRC in this Inquiry was to identify the proper place for secrecy provisions in the context of a system of open and accountable government—consistent with Australia’s obligations under international law, in particular the right to freedom of expression.
In addition, the ALRC considers that a regime enabling robust public interest disclosure—or whistleblower protection—is an essential element in an effective system of open government and a necessary complement to secrecy laws. In this regard, the ALRC reaffirms its recommendations made in previous reports that the Australian Government should legislate to introduce a comprehensive public interest disclosure legislation covering all Australian Government agencies.
Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334, –.
Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77 (1995), Rec 13; Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004), Rec 5–2; Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC 108 (2008), Rec 15–2.
P Finn, Official Information, Integrity in Government Project: Interim Report 1 (1991), 92.
Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004), Rec 3–1; Australian Law Reform Commission, Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems, ALRC 82 (1996), Rec 117.