ALRC on secrecy, calls for new balanced framework

The Australian Law Reform Commission report Secrecy Laws and Open Government in Australia (ALRC Report 112) was tabled in Parliament today after a 15-month inquiry, and welcomed by the Attorney General and the Special Minister of State, but nothing more at this stage. The Commission's media release provides an overview.(Update: Not much in the papers this Friday morning except this AAP report in the Herald Sun, and presumably elsewhere.)

The report makes 61 recommendations for reform, "including a new and principled framework designed to reinforce open and accountable government while ensuring adequate protection for Commonwealth information that should legitimately be kept confidential." There would seem to be years of work ahead within government in undertaking the recommended agency review of 506 secrecy provisions in 176 pieces of legislation, including 358 criminal secrecy offences, but acceptance of a framework, principles to underpin the approach, and a move towards consistency would be a good thing.

There is a lot of welcome news here particularly the recommendation that section 70 of the Crimes Act, the basis for the conviction of Allan Kessing among others, for an unauthorised disclosure, be repealed and replaced [5-1] by a general offence provision for unauthorised release of information that 

has caused, or is likely or intended to cause, harm to identified public interests: damage the security, defence or international relations of the Commonwealth; prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;endanger the life or physical safety of any person; or prejudice the protection of public safety. 

Importantly the ALRC recommends [6-4] the offence should require intention on the part of an officer to cause the harm, or reckless indifference whether this will result.The broad definition of Commonwealth officer [6-1] whose conduct would be regulated would extend to the Governor General, ministers and parliamentary secretaries- all reasonable enough, but interesting to see how this goes.

Potentially controversial recommendations [6-6, 6-7] are that any subsequent disclosure of information of this kind, for example by a journalist, should be an offence. It's easy to see the free speech arguments that are likely to emerge but it shouldn't get lost in transmission that there are three elements to this offence: (a) the information has been disclosed by A to B in breach of the general secrecy offence; B knows, or is reckless as to whether, the information has been disclosed in breach of the general secrecy offence; and B knows, intends or is reckless as to whether the subsequent disclosure will harm—or knows or is reckless as to whether the subsequent disclosure is reasonably likely to harm—one of the specified  public interests. 

The recommendations [7-3] include the need to protect whisteblower disclosures made in accordance with the law, and subsequent disclosures of information. The report restates the need for a robust whistleblower protection scheme, described "as an essential element in an effective system of open government and a necessary complement to secrecy laws." This should prompt action on the Dreyfus report (that some see as not robust enough) which has been with the Attorney General since February last year, and on the promise of legislation in this parliament.

There are some important "culture" and freedom of information issues in the report and recommendations, to be the subject of another post soon.

I was a member of the ALRC Advisory Committee for this reference, but our contribution was merely that. Thanks to former president Professor David Weisbrot, his successor Professor Ros Croucher who conducted the inquiry,  the staff and other members of the committee for some interesting discussion, and a job well done.

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