Government to change secrecy laws

By Joseph Hull

Commonwealth Attorney General Robert McClelland has commissioned the Australian Law Reform Commission (ALRC) to review secrecy laws, in a report due in late October this year.

The Commission is now conducting a ‘Talk to us’ online discussion forum about the proposed changes.

Commonwealth secrecy laws restrict public access to information for various reasons including national defence, ongoing criminal investigations, confidentiality and public safety.

But the ALRC claims existing secrecy laws are problematic due to “the range of secrecy provisions and the lack of clarity for an individual who is subject to them”. It has identified 507 secrecy provisions, 358 of which are offences with a wide range of variation in criminal penalties. The result is an unintelligible mosaic of regulations, codes, and statutory provisions.

The ALRC said the traditional bulwark against such secrecy provisions, the Freedom of Information Act 1978, is often ineffective. Currently, an exemption provision allows the Commonwealth to deem information ‘secret’, protecting many government documents from FOI requests. The exemption provision has been used extensively, which runs counter to transparency and government accountability.

According to the Commission, an appropriate balance is needed to protect certain information while ensuring effective, open and accountable government.

To this end, the ALRC has put together a range of proposals that include the consolidation of existing provisions into a general secrecy law, and an assessment of current common law and legislative provisions to achieve a simpler, more consistent framework.

The Commission is also calling for protection of ‘whistleblowers’, so government employees who disclose secret information are immune from prosecution when their action is deemed to be in the public interest.

Earlier this year, then Special Minister of State John Faulkner introduced two draft bills for FOI reform that represent a significant shift towards greater government transparency and accountability.

Faulkner proposed reducing the 30-year access rule to 20 years, and providing access to Cabinet notebooks after 30 years rather than 50. He also recommended a simplified ‘public interest test’ for disclosure, similar to that proposed by the ALRC.

Faulkner recommended changes to the Freedom of Information Act, saying the culture of FOI at a federal level is biased towards non-disclosure and the Australian people have a “right to know” what goes on within government.

He said making such information public “strengthens Australia’s democracy through increased public participation in Government processes, better informed decision making, and increased scrutiny and discussion of government activity”.

ALRC reports are advisory, with recommendations implemented only with government approval. Have your say at the ALRC ‘Talking Privacy’ online forum at http://talk.alrc.gov.au.