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National law reform: Talking secrecy

Every Issue

Public service or secret service? The ALRC seeks comments about secrecy protocols.

Anyone familiar with the classic 1960s television show Get Smart would be aware of agent Maxwell Smart’s pedantic insistence on following the security protocols of secret US government spy agency Control.

Would Smart’s exuberance for strict compliance be a match for the more than 450 secrecy provisions scattered throughout the commonwealth statute book? Or would he find the plethora of provisions “so all encompassing and unreasonable in their information coverage that strict compliance with them is practically impossible”?1

In all probability Smart would conclude that the key to appropriate secrecy laws is “the old balancing act trick!”.

Most people accept that there is a legitimate public interest in protecting some information from disclosure. For example, government information which relates to national security, which is personal information about an individual or which, if disclosed, would unfairly prejudice or benefit a person may need to be kept secret.2

However, the priority of information protection must be balanced against the increasing expectation of open and accountable government. The “cone of silence” should not operate to deprive individuals of their implied constitutional freedom to communicate about political matters or to obstruct the benefits of “whole-of-government” approaches to policy making, integrated service delivery and cross-agency investigations.

Following the receipt of terms of reference from the federal Attorney-General in August 2008, the Australian Law Reform Commission (ALRC) is currently considering the types of information that should be protected by secrecy laws, the circumstances in which it is appropriate for secrecy laws to apply, the defences that should be available and the consequences for breaching such laws.

On 9 December 2008, the ALRC released the first community consultation paper for the inquiry – Review of Secrecy Laws (IP 34).

IP 34 takes some preliminary steps towards developing a comprehensive and workable framework for secrecy laws – one key step being the identification of provisions that meet the concept of a “secrecy provision”. That is, a provision that has as its principal focus the protection of information through obligations of confidentiality or secrecy.3

The main focus of the issues paper is to prompt ideas and feedback about the best way to balance the need to maintain the secrecy and confidentiality of some government information with a commitment to increased openness and transparency.

All Australians should have a say in reforming laws that affect them and the ALRC has pioneered methods to make the law reform process as open and consultative as possible.

The ALRC is supplementing its traditional consultation processes for IP 34 by making use of a “Talking secrecy forum” and “Talking secrecy phone-in”.

Talking secrecy forum

The Talking secrecy forum is a space for people – commonwealth officers subject to secrecy laws or the public who hold an opinion about the operation of secrecy laws – to share their views, concerns and
experiences in an informal public forum.

The ALRC will use the posts, which can be made anonymously, to understand how secrecy provisions affect Australians and to shape and determine priorities for its review of secrecy provisions.

The forum invites discussion about the operation and effect of secrecy laws at the ground-level by posing several questions that include:

  • what types of information need to be kept secret?;
  • do you need to keep information secret?;
  • how easy or difficult is it to comply with secrecy laws?;
  • when should persons other than public servants be caught by secrecy provisions?;
  • when should you be allowed to disclose secret government information?;
  • have you been in trouble for breaching a secrecy law?; and
  • do you have any other comments?

Talking secrecy phone-in

Because secrecy of commonwealth information is not just an issue for experts or specialists, the ALRC will also conduct a “Talking secrecy phone-in”.

The phone-in is an alternative avenue for the public to share their stories about when they have found secrecy laws and practices workable or obstructive, and their opinions about the optimal role of secrecy laws in our society.

If you are subject to secrecy provisions or have an opinion about their operation the ALRC invites you to have your say by accessing the Talking secrecy forum, taking part in the phone-in or lodging a formal submission. For details see http://www.alrc.gov.au.


KATHERINE McGREE is a student intern with the Australian Law Reform Commission. For further information, visit the website http://www.alrc.gov.au or ph (02) 8238 6312.

1. P Finn, Official Information, Integrity in Government Project: Interim Report 1 (1991), 43-44.

2. ALRC, Review of Secrecy Laws, IP 34 (2008), [1.23].

3. Note 2 above, at [1.99].

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