A chance to tackle the culture of secrecy in government

The Australian Law Reform Commission’s newly-released report on secrecy laws in Australia has revealed a staggering 506 secrecy provisions in 176 separate pieces of legislation, with more than two thirds of these constituting criminal offences.

Many of these are punishable by prison sentences of 12 months or more. In some cases, these penalties are out of all proportion to the harm caused because they do not discriminate between circumstances as diverse as the dairy subsidies, for instance, right through to classified disclosures to foreign powers.

Unsurprisingly, one of the ALRC’s recommendations is that the Government should review these laws and repeal or consolidate them into a single general secrecy offence wherever appropriate. But the review needs to do more than this.

The Government needs to revise the entire policy framework for managing government information to incorporate a clear presumption that public access must be given to official information in all cases and excluded only if necessary to protect essential public interests, such as the protection of national security and sensitive international relations, the enforcement of law, threats to life and public safety, and other similar matters.

Currently there is still a culture in government which maintains that information should be kept secret unless there is a reason for public disclosure. This approach should be turned squarely on its head.

Secrecy laws need to be based on a synthesised set of principles that reflect the right to open government and that encourage and engage public participation. The benefits are obvious - raising awareness, educating the public as to the operation of its governments, greater accountability from our elected representatives, for a start.

And in an era where technical advances have so swiftly lifted the barriers to the widespread dissemination of even vast tracts of information, it is unforgivable that the institutionalised stubbornness of officialdom continues to constrain what the Internet has set free.

Certainly, the review process has to some extent begun with the introduction of the Government’s proposed amendments to freedom of information laws last year. Under the proposed changes, government departments will be required to publish a wider range of details about their activities and the information they hold, as a matter of course. 

Officials would also be required to follow a public interest test in determining whether to provide interim access to requested information.  However, it’s not clear how far this test will reach. For instance, it does not apply to certain categories of information, such as cabinet and national security documents.

While it’s unlikely that providing open access to national security or cabinet-in-confidence information would be in the public interest in every case, it may be that extraordinary circumstances could arise to justify such disclosure. Good laws should be able to deal with the extraordinary, as well as the ordinary.

Going further back, the Commonwealth’s standing committee on legal and constitutional affairs released a report in February 2009 with recommendations for strengthening federal public interest disclosure immunity laws – in other words, beefing up whistleblower protection for civil servants who go public with details of corruption, cover-ups and maladministration in their agencies.

Public officers are currently subject to the spectre of criminal prosecution for informing the public of corruption or maladministration in government.  By raising the release of information to the level of criminality and exposing public officers to imprisonment, a forceful message is sent that secrecy is the norm in government administration.

But progress on these fronts seems to have slowed recently. The government is yet to introduce public interest disclosure legislation. And it’s doubtful that federal whistleblower laws will ever have the teeth needed to be effective.

For instance, the standing committee’s report recommended immunity for public interest disclosures made to the media in certain cases, but only where the matter has already been disclosed to authorities both internally and externally without a reasonable response, and only where the matter threatens immediate serious harm to public safety.

It is not difficult to imagine circumstances in which a public officer might be loath to disclose sensitive matters internally at the first instance.

What if the disclosures related directly to the conduct of a superior – the very person to whom initial disclosure is required by law?  Also, the immunity does not apply to other important public administration matters such as corruption and malfeasance – matters which the media seek to report on every day.

The Government is now considering the ALRC’s secrecy report and recommendations. This looks like a good opportunity to re-ignite efforts to push forward with real reform so that public interest considerations are properly enshrined as the key determinants of access to government information, and so that such access remains an essential right for all of us.