Secrecy laws under the microscope

The Australian Law Reform Commission, just released from its review of the Freedom of Information Act, has now been asked to look at Federal laws that contain secrecy provisions.

“I have asked the ALRC to develop options for ensuring a consistent approach across government to the protection of Commonwealth information,” said Attorney‑General Robert McClelland. There are currently more than one hundred secrecy and confidentiality provisions in Commonwealth legislation. The interaction of these provisions with one another, and with other legislation, is overly complex.” “We are committed to open and accountable government and want to ensure that Commonwealth information is only protected where there is a legitimate reason for doing so.Where there are legitimate reasons for protecting Commonwealth information – such as information relating to national security – we need to ensure that our laws provide sufficient protection against unauthorised disclosure."

The terms of reference are broad and include "the way in which secrecy laws in the Crimes Act interact with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistle‑blowing, and data-matching."

It's a bit much to be critical of this move, as the whole area is a hell of a mess. But reform is a long way off . The Commision will not report until the end of October 2009. And some, most, a lot of the territory, is well trodden.

For example Section 70 of the Crimes Act criminalises all unauthorised disclosures, and excludes any public interest or other defence. In 1991 the Review of Commonwealth Criminal Law chaired by former Chief Justice of the High Court, Sir Harry Gibbs recommended among other things, repeal and replacement with a provision limited to specific categories of information "no more widely stated than is required for the effective functioning of government."

Nothing happened.

In 1995, the Australian Law Reform Commission Open Government Report recommended (12):

" The recommendations of the Gibbs Committee should be implemented as soon as possible."

Nothing happened, at least in respect of Section 70, except that it continued to be used to prosecute, most notably against Allan Kessing arising from publication of a report about deficiencies in security at Sydney Airport.

And a deja vu moment for the Commission, now about to commence an examination of Federal secrecy laws.Recommendation 13 in the 1995 Report:

"A thorough review of all federal legislative provisions that prohibit disclosure by public servants of government held information should be conducted as soon as possible to ensure that they do not prevent the disclosure of information that would not be exempt under the FOI Act."

There was some tidying up of the FOI Act subsequently, but almost 13 years later, and four years after the Commission again recommended it have another crack, the parcel is back with the Commission.

Understandably, the Commission is enthusiastic about the task, given its previous work in this area:

"ALRC President Professor David Weisbrot noted that the Commission has been actively involved in this general area for some time.“Over the last decade or so, the ALRC has provided reports and recommendations to government about improving freedom of information laws, privacy laws and practices, the protection of classified and security sensitive information, the preservation of archival resources, and client legal privilege in federal investigations."