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Review of Secrecy Laws Review of Secrecy Laws ISSUES PAPER You are invited to provide a submission or comment on this Issues Paper ISSUES PAPER 34 December 2008 This Issues Paper reflects the law as at 1 November 2008. © Commonwealth of Australia 2008 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed by letter to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or electronically via www.ag.gov.au/cca. ISBN-978-0-9804153-4-6 Commission Reference: IP 34 The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King Street, Sydney, NSW, 2000, Australia. All ALRC publications can be made available in a range of accessible formats for people with disabilities. If you require assistance, please contact the ALRC. Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] ALRC homepage: www.alrc.gov.au Printed by Ligare Making a submission Any public contribution to an inquiry is called a submission and these are actively sought by the ALRC from a broad cross-section of the community, as well as those with a special interest in the particular inquiry. Submissions are usually written, but there is no set format and they need not be formal documents. Where possible, submissions in electronic format are preferred. It would be helpful if comments addressed specific proposals and questions or numbered paragraphs in this paper. Open inquiry policy In the interests of informed public debate, the ALRC is committed to open access to information. As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications. As part of ALRC policy, non-confidential submissions are made available to any person or organisation upon request after completion of an inquiry, and may also be published on the ALRC website. For the purposes of this policy, an inquiry is considered to have been completed when the final Report has been tabled in Parliament. However, the ALRC also accepts submissions made in confidence. Confidential submissions may include personal experiences where there is a wish to retain privacy, or other sensitive information (such as commercial-in-confidence material). Any request for access to a confidential submission is determined in accordance with the Freedom of Information Act 1982 (Cth), which has provisions designed to protect sensitive information given in confidence. In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as non-confidential. Submissions should be sent to: The Executive Director Australian Law Reform Commission GPO Box 3708 SYDNEY NSW 2001 Email: [email protected] Submissions may also be made using the online form on the ALRC’s homepage: <www.alrc.gov.au> The closing date for submissions in response to IP 34 is 19 February 2009. Contents Contents Terms of Reference 3 List of Participants 5 List of Questions 7 1. Introduction to the Inquiry 15 Background 15 Context for ‘secrecy’ 17 Information flows 33 Prior reviews 35 Scope of the Inquiry 37 Options for reform 42 Organisation of this Issues Paper 44 Process of reform 45 2. Overview of Secrecy Provisions in Commonwealth Legislation 49 Introduction 49 Government and secrecy in Australia 50 Number and location of Commonwealth secrecy provisions 53 Types of secrecy provisions 54 General secrecy provisions 55 Provisions that protect specific types of Commonwealth information 65 Form of secrecy provisions 75 3. Secrecy Provision Elements 79 Introduction 79 Whose activity is regulated? 80 What kind of activity is regulated? 85 The elements of criminal offences 90 The public interest 96 Constitutional limits 101 4. Exceptions and Defences 105 Introduction 105 ‘Exception’ and ‘defence’ 106 General defences 107 2 Review of Secrecy Laws Summary of existing exceptions and defences 107 Reform issues 115 Public interest disclosure legislation 121 5. Penalties 129 Introduction 129 Purpose of penalties 130 Criminal penalties 131 Administrative penalties 160 Infringement notices 168 Civil penalties 170 6. Practical Framework for Protecting Commonwealth Information 173 Introduction 173 Strategies for protecting Commonwealth information 174 Disciplinary processes 183 Criminal investigations 197 Prosecutorial discretions and processes 198 Managing overlapping proceedings 202 Overseeing the protection of Commonwealth information 204 7. Comparisons and Interactions with Other Laws 211 Introduction 211 Freedom of information 213 Privacy 221 Data-matching 229 Archives 232 Other issues 234 Appendix 1. List of Abbreviations 235 Appendix 2. Table of Secrecy Provisions 239 Appendix 3. Extracts of Key Secrecy Provisions 251 Terms of Reference REVIEW OF SECRECY LAWS I, ROBERT McCLELLAND, Attorney-General of Australia, having regard to: • the desirability of having comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information; • the increased need to share such information within and between governments and with the private sector; • the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government; and • previous reports (including previous reports of the Commission) that have identified the need for reform in this area REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government through providing appropriate access to information. 1. In carrying out its review, the Commission will consider: a. relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality; b. whether there is a need to consolidate and modernise relevant provisions currently in the Crimes Act 1914 and other Commonwealth legislation for inclusion in the Criminal Code; c. 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; d. whether there should be different considerations for secrecy laws relating to the protection of national security and other sensitive Commonwealth information; and e. any related matter. 4 Review of Secrecy Laws 2. In carrying out its review, the Commission is to identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies and private sector bodies. 3. The Commission will provide its final report to me by 31 October 2009. Dated 5 August 2008 Robert McClelland Attorney-General List of Participants Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following: Professor David Weisbrot (President) Professor Les McCrimmon (Commissioner) Professor Rosalind Croucher (Commissioner in charge) Justice Berna Collier (part-time Commissioner) Justice Susan Kenny (part-time Commissioner) Senior Legal Officers Carolyn Adams Bruce Alston Kate Connors Isabella Cosenza Legal Officers Lisa Eckstein Althea Gibson Erin Mackay Research Manager Jonathan Dobinson Librarian Carolyn Kearney Project Assistants Tina O’Brien Legal Interns Larisa Michalko Tracy Nau Katie Schafer Smriti Sriram Rebecca Zaman 6 Review of Secrecy Laws Advisory Committee Members Ms Lynelle Briggs, Australian Public Service Commissioner Mr Ian Carnell, Inspector-General of Intelligence and Security Mr Chris Craigie SC, Commonwealth Director of Public Prosecutions Professor Robin Creyke, College of Law, Australian National University Mr Simon Daley, Australian Government Solicitor Mr Chris Erskine SC, Blackburn Chambers Justice Paul Finn, Federal Court of Australia Mr Kevin Fitzpatrick, Chief Tax Counsel, Australian Taxation Office Mr Stephen Gageler SC, Solicitor-General of Australia Mr John McGinness, Director, National Judicial College of Australia Professor John McMillan, Commonwealth Ombudsman Mr Andrew Metcalfe, Secretary, Department of Immigration and Citizenship Associate Professor Moira Patterson, Law Faculty, Monash University Mr Peter Timmins, Timmins Consulting Ms Annette Willing, Australian Government, Attorney-General’s Department List of Questions 1. Introduction to the Inquiry 1–1 In light of freedom of information laws and other modern moves towards greater openness and accountability on the one hand, and the current international security environment on the other, are secrecy laws still relevant and necessary? Is a statutory duty
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