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Monday, September 22, 2014

What chance a 'principled framework to balance secrecy and open and accountable government' ?

Close to zero I venture.

The August 2012 briefing note finally released (well, minus attachments) in response to my FOI application for work undertaken on the Australian Law Reform Commission Report Secrecy Laws and Open Government of December 2009 reveals little progress in those three years on what should have been a major project across government but it doesn't tell the full or current story. 

FOI reforms mooted in 2009 and referred to in the ALRC report were introduced in 2010, but as we know the government is intent on removing a central element of those reforms by disbanding the Office of Australian Information Commissioner.The ALRC strongly supported the concept in its report.

Whistleblower protection law referred to in the ALRC report and mentioned in the briefing note came to pass (finally again) in 2013.

The Attorney General could enlighten us with a statement about where things stand in 2014 although the file might be buried at the bottom of in-trays in AGD. The advice from within no doubt says the report was commissioned by the previous government and arguably no response is required from this one.

However the disclosure reminds that the ALRC recommends a rational, comprehensive approach to reform of the crazy patchwork of secrecy laws currently on the books and sits there possibly gathering dust while the government today introduces changes to legislation that will add to our sizable collection of secrecy laws. I haven't seen any mention of the report in the discussion of the National Security Legislation Amendment Bill (No. 1) 2014 or  the changes to legislation foreshadowed by the Attorney General and still to come. 

Maybe it's too much to expect in the current climate but the ALRC proposed "a new and principled framework striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential."

More than 60 recommendations outline what should be done to bring about some coherence and consistency in the statute book's 500 plus secrecy provisions:

  • repeal the wide catch all offence provisions in the Crimes Act - s 70 is described as "seriously out of step with public policy developments in Australia and internationally" - and introduction of a new general offence provision limited to disclosures that harm essential public interests, 
  • principles to guide review of the hundreds of specific secrecy offences in legislation and the creation of any new ones such as those currently before parliament,
  • and measures to improve information handling practices across government including sorting out in a more definitive fashion the relationship between FOI and secrecy laws. 
The draconian s 70 'unauthorised disclosure' provision is among the worst of the complex, confusing and uncertain secrecy laws on the books. We have had voices urging change to this provision that go back to former High Court Chief Justice Sir Harry Gibbs in 1991. One of the few  against change however was the recently replaced secretary of the Attorney General's Department Roger Wilkins, who told a senate committee way back in 2008 (page three of the transcript Thursday 27 November 2008 (PDF 192KB):"My personal view. I am not sure of the government's view on this. My personal view would be that you should not interfere with section 70 of the Crimes Act. That should remain intact". 

Whether in Wilkins time, extending to 2014, ministers had a chance to consider the matter is another question.

In 2014 a new principled framework for secrecy and open government is way overdue.

The ALRC has laid out how to go about this. Alas, no sign of starters. 

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