1990] secrecy provisions in commonwealth legislation 49 · 1990] secrecy provisions in commonwealth...

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1990] Secrecy Provisions in Commonwealth Legislation 49 SECRECY PROVISIONS IN COMMONWEALTH LEGISLATION JOHN McGINNESs· "The Official Secrets Act stiffens the spine of the secretive bureaucrat and softens the vertebrae of the press"! 1 INTRODUCTION Many Commonwealth laws now include provisions which impose criminal penalties on government officials for the act of unauthorised communication of information to other persons. These secrecy provisions have been inserted in Commonwealth legislation since the earliest years of federation. The fIrst was passed in the fIrst session of the Commonwealth Parliament in 1901. 2 Early secrecy provisions were mainly concerned with the protection of defence and national security. However, with the expansion of the Commonwealth's role after the mid-1940s in areas such as taxation, health, education, welfare, scientific research, industry assistance and regulation, secrecy provisions increased in number as a reflection of the increase in personal and commercially sensitive information collected by the government. This growth in statutory secrecy was given further impetus by the perceived need to protect information collected by the increasing number of independent statutory authorities with statutory powers to compel the disclosure of sensitive business information. By the late 1970s it was possible for the Senate Standing Committee on Constitutional and Legal Affairs to comment adversely on what appeared to be fashionable contemporary drafting practice to insert in every new statute a standard provision making it an offence for an official governed by a statute to disclose without authorisation any information of which he has gained knowledge officially.3 The Committee observed that, once enacted, these provisions are often retained "more because of custom or habit than because of necessity".4 There are now approximately 150 secrecy provisions in Commonwealth Acts and regulations. s They are also found in the legislation of Australia States and Territories 6 and in the legislation of other countries. In Australia in recent years secrecy provisions have come to the attention of Royal Commissions, Parliamentary inquiries, Government inquiries, the Courts 2 3 4 5 6 LLB M PubL, Principal Legal Officer, Family Law Branch, Commonwealth Attomey- General. W Hardcastle, "Press Freedom", The Listener. 7 December 1967 quoted by D Williams. "Official Secrecy in England" (1968) 3 FL Rev 20. 34. Post and Telegraph Act 1901. ss 9 and 127. Senate Standing Committee on Constitutional and Legal Affairs. Report on Aspects of the Freedom of Information Bill 1978 and the Archives Bill 1978 (1979) 233 (hereafter referred to as the Senate Committee Report). Ibid 236. See Appendix. Australian Law Refonn Commission Report No 22: Privacy (1983) Vol 1, para 639 (hereafter referred to as the ALRC Report on Privacy); E Campbell and H Whitmore, Freedom in Australia (1973. 347-348; the Senate Committee Report, supra n 6. Appendix 6.

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  • 1990] Secrecy Provisions in Commonwealth Legislation 49

    SECRECY PROVISIONS IN COMMONWEALTH LEGISLATION

    JOHN McGINNESs

    "The Official Secrets Act stiffens the spine of the secretivebureaucrat and softens the vertebrae of the press"!

    1 INTRODUCTION

    Many Commonwealth laws now include provisions which impose criminalpenalties on government officials for the act of unauthorised communication ofinformation to other persons. These secrecy provisions have been inserted inCommonwealth legislation since the earliest years of federation. The fIrst waspassed in the fIrst session of the Commonwealth Parliament in 1901.2 Earlysecrecy provisions were mainly concerned with the protection of defence andnational security. However, with the expansion of the Commonwealth's roleafter the mid-1940s in areas such as taxation, health, education, welfare,scientific research, industry assistance and regulation, secrecy provisionsincreased in number as a reflection of the increase in personal and commerciallysensitive information collected by the government. This growth in statutorysecrecy was given further impetus by the perceived need to protect informationcollected by the increasing number of independent statutory authorities withstatutory powers to compel the disclosure of sensitive business information. Bythe late 1970s it was possible for the Senate Standing Committee onConstitutional and Legal Affairs to comment adversely on what appeared

    to be fashionable contemporary drafting practice to insert in every new statute astandard provision making it an offence for an official governed by a statute todisclose without authorisation any information of which he has gainedknowledge officially.3

    The Committee observed that, once enacted, these provisions are often retained"more because of custom or habit than because of necessity".4 There are nowapproximately 150 secrecy provisions in Commonwealth Acts and regulations.sThey are also found in the legislation of Australia States and Territories6 and inthe legislation of other countries.

    In Australia in recent years secrecy provisions have come to the attention ofRoyal Commissions, Parliamentary inquiries, Government inquiries, the Courts

    23

    4

    56

    LLB M PubL, Principal Legal Officer, Family Law Branch, Commonwealth Attomey-General.W Hardcastle, "Press Freedom", The Listener. 7 December 1967 quoted by D Williams."Official Secrecy in England" (1968) 3 FL Rev 20. 34.Post and Telegraph Act 1901. ss 9 and 127.Senate Standing Committee on Constitutional and Legal Affairs. Report on Aspects ofthe Freedom of Information Bill 1978 and the Archives Bill 1978 (1979) 233 (hereafterreferred to as the Senate Committee Report).Ibid 236.See Appendix.Australian Law Refonn Commission Report No 22: Privacy (1983) Vol 1, para 639(hereafter referred to as the ALRC Report on Privacy); E Campbell and H Whitmore,Freedom in Australia (1973. 347-348; the Senate Committee Report, supra n 6.Appendix 6.

  • 50 Federal Law Review [VOLUME 9

    and academic writers.7 Their attitudes to secrecy provisions have varied becauseeach has approached the topic in the course of dealing with the wider subjects ofpublic access to government infonnation, privacy protection, national security,investigation of organised crime, refonn of Commonwealth criminal law or theapplication of the laws of evidence by the Courts. Secrecy provisions have neverbeen reviewed as a single consistent subject matter in Australia. Given thehaphazard way in which these provisions have been enacted, and their importancein regulating the flow of infonnation within government and to the public, sucha review is now appropriate. The recent reform of official secrets legislation inBritain8 may also re-awaken interest in refonn of secrecy provisions in Australia.

    For the purpose of reviewing the operation of secrecy provisions inCommonwealth legislation, a number of categories need to be considered. Theseare secrecy provisions

    (1) of a general nature, such as those found in the sections 70 and 79 of theCrimes Act 1914 (Cth);

    (2) restricting disclosure of defence and national security information;(3) restricting disclosure of information affecting individual privacy;(4) restricting disclosure of business secrets;(5) restricting disclosure of information supplied to government in confidence;(6) protecting the investigatory functions of law enforcement agencies;(7) concerned with discipline in the public service;(8) regulating the flow of information between government agencies;(9) otherwise limiting the use or acquisition of information.

    A General Secrecy ProvisionsFrom an early date the Crimes Act 1914 (Cth) established a fmn approach in

    totally prohibiting the unauthorised disclosure of official infonnation. Section70(1) provides:

    A person who, being a Commonwealth officer, publishes or communicates,except to some person to whom he is authorized to publish or communicate it,any fact or document which comes to his knowledge, or into his possession, byvirtue of being a Commonwealth officer, and which it is his duty not todisclose, shall be guilty of an offence.

    7

    8

    Report of the Royal Commission on Australian Government Administration (1976) paras10.7.19-10.7.23, Appendices 2A, 2B, 4K, (hereafter referred to as the RCAGA); PMunro and J McMillan, Freedom of Information, the RCAGA Report, Appendix 2A(hereafter referred to as the RCAGA Minority Report); Royal Commission onIntelligence and Security (1977) 4th Report Vol 2 Appendix 4E; Royal Commission onthe Activities of the Federated Ship Painters and Dockers Union Interim Reports No 3(1981) and 4 (1982), Final Report (1984) (hereafter referred to as the Costigan RoyalCommission); Office of Special Prosecutor, Annual Report (1982/1983) Chs 10, 11, 12,15; Special Prosecutor Redlich Annual Report (1983-1984) para 5.67; SenateCommittee Report, supra n 3, Ch 21; Senate Standing Committee on Regulations andOrdinances Report disallowed by effluxion of time (1986); Report of the Joint SelectCommittee on an Australia Card (1986) Ch 2; Report of the Inter DepartmentalCommittee on policy proposals for Freedom of Information legislation (1976) s 12;Human Rights Commission Report: Review of the Crimes Act 1914 and other Crimeslegislation of the Commonwealth (1983) 7; ALRC Report: Privacy, supra n 6, paras798-803, 937-952; Review of Commonwealth Criminal Law Discussion Paper No 20:Disclosure of official information (1988) (hereafter referred to as the Gibbs CommitteeReport).Official Secrets Act 1989

  • 1990] Secrecy Provisions in Commonwealth Legislation 51

    Penalty: Imprisonment for two years

    Section 70 had as its basic purpose the regulation of the conduct of publicofficers. It appears in Part VI of the Crimes Act (offences by and against publicofficers) not in Part VII (espionage and official secrets). Section 70 does notoriginate in the United Kingdom Official Secrets Act but in s 86 of theQueensland Criminal Code 1889, the fust criminal code in Australia.9 TheCommonwealth equivalent to the notorious s 2 of the United Kingdom OfficialSecrets Act 1911 is found in s 79(3) of the Crimes Act which provides:

    79(3) If a person communicates a prescribed sketch, plan, photograph, model,cipher, note, document or article, or prescribed information, to a person,other than -

    (a) a person to whom he is authorized to communicate it; or

    (b) a person to whom it is, in the interest of the Commonwealth or a part ofthe Queen's dominions, his duty to communicate it, or permits a person,other than a person referred to in paragraph (a) or (b), to have access to it,he shall be guilty of an offence.

    Penalty: Imprisonment for two years

    "Prescribed information" is defined in s 79(1) to include any infonnation obtainedby a Commonwealth officer or person holding office under the Queen which:

    "by reason of its nature or the circumstances under which it was entrusted to himor it was made or obtained by him or for any other reason, it is his duty to treatit as secret"

    It is apparent that ss 70 and 79(3), although historically different in origin,overlap to a substantial degree. They both prohibit the disclosure of anyinformation acquired by an official in the course of his duties.

    There are more than 50 provisions in Commonwealth Acts and regulationswhich, like ss 70 and 79(3), prohibit the disclosure by an official of any kind ofinformation which he has acquired in the course of his duties. The AustralianLaw Reform Commission identified the purpose of these provisions as thepreservation of the secrecy of government operations in the belief that theymight thereby be more effective.l 0 In Kavvadias v CommonwealthOmbudsman11 the Federal Court identified their primary purpose as the disciplineor integrity of officers and said that in fulfilling this wider purpose they meet aperceived need to preserve the secrecy of government operations in order forgovernment to function effectively.

    When general secrecy provisions are relied on by government officials to resistdisclosure of information in litigation, the Courts have acknowledged that theprovisions have a very wide operation. They effectively prohibit the revelation,orally or in writing, of anything that is "secret". They commonly prohibit the"divulging" of information which means letting out a secret.12 The provisions

    9 Attorney-General's second reading speech on the introduction of the Crimes Bill 1914, HReps Deb 1914, Vol 15, 265; the first UK Official Secrets Act, enacted in the same yearas the Queensland Criminal Code 1889, had been under consideration for many years:see generally D Williams, Not in the Public Interest (1965) Ch 1; see also RoyalCommission Criminal Code Report, Qld ParI Papers 38-1899.

    10 ALRC Report: Privacy, supra n 6, Vol 2, para 1319.11 (1984) 52 ALR 728; (see also News Corporation v NCSC (1984) 52 ALR 211.)12 R y Clarlcson [1982] VR 522, 521; diwlging includes incorporating infonnation in a

    document and supplying it to another person: Canadian Pacific Tobacco Co Ltd v

  • 52 Federal Law Review [VOLUME 9

    penalise indiscreet gossip just as heavily as a deliberate breach of confidence.l3They protect information generated within government as well as informationsupplied by the public)4 The provisions make no distinction between the natureor importance of the duties of a Minister and those of the lowest public servant.The liability of an official does not depend on whether information is inherentlysensitive or on any prejudice that might result from its disclosure (though theseare matters which may bear on whether a prosecution is institutedlS or on thepenalty imposed by a COurt16). The scope of these provisions reflect a nowoutdated attitude that, except in very special circumstances, the public has noproper concern with having information about government processes. Thatattitude is inconsistent with more recent Commonwealth legislation whichattempts to open up Government operations to public scrutiny.

    The liability of an official under the Crimes Act for unauthorised disclosure ofinformation depends on whether he or she can be shown to have had a "duty tokeep the information secret" under s 79 or a "duty not to disclose" it under s 70.In 1983 the Commonwealth Attorney-General expressed the view in Parliamentthat the different language of these provisions indicates that s 79(3) is wider thans 70.17 However, it is doubtful whether these words in ss 70 and 79 wereintended to have any different effect Until s 70 was redrafted in 1960 for thepurpose of extending it to former Commonwealth officers,18 that provision alsoused the words "his duty to keep secret".l9 In Cortis v R,20 a case involving theprosecution of a State Housing Commission officer for unauthorised disclosureof documents to an Opposition member of Parliament, the West AustralianCourt of Criminal Appeal decided that a duty not to disclose, if expressed inpositive terms, is the same as a duty to keep secret.

    The general law does not specifically impose any duty on officials to keepinformation secret though such a duty may arise where the elements necessary toestablish a breach of an equitable duty of confidence21 or a breach of contract canbe shown to exist. A statutory duty not to disclose "information concerningpublic business or any matter of which an employee has knowledge officially" isimposed on Australian Public Service employees by regulations made under thePublic Service Act 1922.22 In Cortis v R23 it was accepted that such a general

    Stapleton (1952) 86 CLR 1, 7; Re Actors Equity and Australian Broadcasting Tribunal(1984) 1 AAR 222, 231.

    13 Bonner y Kara~a Shipping Co [1973] 2 NZLR 375, 379.14 Cf R y Ho~stalu [1977] 3 WWR 629, 634.15 Crimes Act 1914 s 85; see opinion of Attorney-General Evans 29 August 1983

    incorporated in Sen Deb 1983, Vol 101, 3613 (9 December 1983) (hereafter referred toas the Attomey-General's opinion).

    16 See Cortis y R [1979] WAR 30; R y Crisp and Homewood (1919) 83 JP 121, 123;17 Attomey-General's opinion, supra n 15, 361518 Attomey-General's second reading speech on introduction of the Crimes Bill 1960, H

    Reps Deb 1960, Vol 28, 1023 (8 September 1960).19 Crimes Act 1960, s 49. For a discussion of the meaning of the word "secret" in

    s 79(3), see Royal Commission on Intelligence and Security (1977) 4th Report Vol 2,Appendix 4E.

    20 [1979] WAR 30,32.21 See Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50; Allied Mills

    Industries Pty Ltd v Trade Practices Commission (1981) 34 ALR 105, 118; Attorney-General y Jonathon Cape Ltd [1976] 1 QB 752.

    22 Public Service Regulations r 35.

  • 1990] Secrecy Provisions in Commonwealth Legislation 53

    duty under public service regulations was a duty to keep secret for the purpose ofprovisions equivalent to s 79 of the Crimes Act. Employees of statutoryauthorities have similar statutory duties imposed on them.24 Sections 70 and79(3) do not necessarily refer only to legal duties. Section 79 of the Crimes Act,which expressly states that the nature of information or the circumstances inwhich information is entrusted to or obtained by an official may give rise to aduty, has been interpreted as suggesting that something other than a legal dutymay be sufficient.2S On the other hand it may be that a Court would be reluctantto conclude that the word "duty" in a provision creating a criminal offence of thiskind includes a moral obligation arising from mere convention, reasonableexpectation or honourable relations between officials.26

    It is clear that a duty for the purposes of ss 70 and 79(3) of the Crimes Actmay exist without any direction from an official's superiors and without theofficial realising that a duty has arisen. These secrecy provisions were framedwith the specific intention of penalising careless disclosures just as much ascommunications deliberately intended for a prejudicial purpose.27 In Grant vHeadland28 a probationary officer of the Australian Security IntelligenceOrganisation was convicted on an attempted breach of s 79(3) of the Crimes Act,although it was argued that he was unaware of any duty to keep informationsecret. The Court found that a duty arose by necessary inference from thecircumstances.

    B Defence and National SecurityA number of secrecy provisions in Commonwealth legislation are expressly

    directed at the protection of defence and national security information. Someprohibit disclosure of particular categories of defence or security relatedinformation29 while others, applying to any kind of information, penalise onlythose disclosures made with the purpose of prejudicing security or defence.30

    In the latter category the most important provisions are sub-ss 78(1) and 79(2)of the Crimes Act concerning espionage. Under these provisions a person isguilty of an offence if, for a purpose intended to be prejudicial to the safety ordefence of the Commonwealth or the Queen's dominions, he communicates toanother person any document or information that might be useful to an enemy orforeign power (s 78(1 or prescribed infonnation (defined to include information

    23 Supra n 16, 32; see also Guidelines on official conduct: Commonwealth Public ServiceBoard Personnel Management Manual (1983) Vol 3.

    24 Defence Act 1901 s 73A; Supply and Development Act 1939 s 25; Australian FederalPolice (Discipline) Regulations r 13.

    25 Royal Commission on Australia's Security and Intelligence Agencies, Report on tenn ofreference (c) (1983), 194; Attorney-Genera!'s opinion, supra n IS, 3615.

    26 G Sawer, "Cabinet Secrecy -limits of the law" The Canberra Ti~s, 10 August 1983.27 See Attorney-General's Second reading speech on the introduction of the Crimes Bill

    1960, H Reps Deb 1969, Vol 28, 1032 (8 September 1960).28 (1977) 17 ACfR 29, 31; see also R v Doe referred to by D Williams, Not in the Public

    Interest (1965) 20.29 Atomic Energy Act 1953 ss 44, 46, 48; Crimes Act 1914 s 83; Defence Act 1901

    s 73A; Defence (Special Undertakings) Act 1952 s 9; Defence Force Discipline Act1982 s 58.

    30 Crimes Act 1964 ss 78, 79(2); Australian Security Intelligence Organisation Act 1979ss 18, 81.

  • 54 Federal Law Review [VOLUME 9

    relating to prohibited places, for example, defence installations) unless he isauthorised, or it is in the course of his duty, to communicate it (s 79(2.

    Although s 78(1) and s 79(2) of the Crimes Act have not been the subject ofreported cases, in the United Kingdom the equivalent provisions of the OfficialSecrets Act 1911 have been the subject of a number of decisions which indicatethat the Courts interpret the provisions quite widely.31 In R v Bettaney,32 it washeld that the quality of the information disclosed or its usefulness to an enemyare irrelevant in determining whether a defendant had prejudicial purpose. Anenemy is not limited to someone with whom the nation is at war. It includesany potential enemy.33

    In Chandler v DPP,34 a case in which members of a nuclear disarmamentorganisation were convicted of a breach of s 1 of the Official Secrets Act(entering a prohibited place for a purpose prejudicial to the interests of the State),the House of Lords decided that proof of a purpose of committing acts which areprejudicial to defence or national security is all that is required to establish themental element of the offence. Whether or not the accused intends that prejudiceto result is irrelevant. Thus a defendant cannot lead evidence to establish thatGovernment policy on national defence measures is wrong. The House of Lordsruled that the Crown alone is entitled to make decisions about the interests of thestate and such decisions cannot be questioned in a comt of law. The words "for apurpose intended to be prejudicial", which were inserted in s 78(1) of the CrimesAct 1914 (Cth) in 1960, would produce a different result in Australia. The recentreview of the Crimes Act by the Gibbs Committee, which generally favouredwidening the practical operation of these secrecy provisions in the Crimes Act,suggested that s 78(2) be amended once again to give it the scope of s 1 of theUnited Kingdom Official Secrets Act (1911).35

    The width of the espionage prohibitions of the Crimes Act is furtheremphasised by the distinctive supplementary provisions dealing with proof of apurpose of prejudice to the safety or defence of the Commonwealth. Underss 78(2)(a) and 79(7) of the Crimes Act a person may be convicted,notwithstanding the prosecution's inability to prove such a purpose, if it appearsfrom the circumstances or the accused's known conduct or character that he had aprejudicial purpose. These provisions originated in United Kingdom legislationdealing with vagabonds and were the subject of substantial public controversyduring debate on the Crimes Bill 1960.36 To safeguard against the possiblemisuse of the provisions, the presiding judge is given a discretion to exclude theevidence of the known character of a defendant if it would prejudice the fair trial

    31 See generally D Williams. "Official Secrecy and the Courts". in P Glazebrook (ed)Reshaping the Criminal Law (1978); 1 Aitken. Officially Secret (1971) (hereafterreferred to as Aitken).

    32 [1985] Crim LR 104.33 R v Parrot (1913) 8 Cr App R 186; R v Sutch [1975] 2 NZLR 1.34 [1964] AC 763.35 Gibbs Committee. supra n 7. Review of Commonwealth Criminal Law - Discussion Paper

    17 - Part vn of the Crimes Act. 9.36 Attorney-General's second reading speech on introduction of Crimes Bill 1960. H Rep

    Deb 1960. Vol 28 1030 (8 September 1960); 0 Williams. supra n 28.27; 1 Coxsedge.K Caldicutt. G Harant: Rooted in Secrecy: The Clandestine Element in AustralianPolitics (1982) 209-210.

  • 1990] Secrecy Provisions in Commonwealth Legislation 55

    of the defendant.37 This safeguard was rejected as inadequate by the HumanRights Commission during its review of the Crimes Act.38 The Commissionfound that the provisions considerably eroded the principle, which is recognisedin the International Covenant on Civil Political Rights, that a person ispresumed innocent until proven guilty. It can be argued that the provisionsconflict with the principle of general law stated in Makin v Attorney-General(NSW)39 that evidence of an accused's previous conduct or character is notadmissible to establish his propensity to commit the crime with which he ischarged. Section 78(2)(b) of the Crimes Act arguably involves an even greaterdeparture from ordinary principles of criminal justice by expressly placing theonus on a person charged with an unauthorised disclosure of information about aprohibited place40 to prove that the communication was not for a prejudicialpurpose.

    C PrivacyThe majority of secrecy provisions in Commonwealth legislation are directed

    to the protection of personal or commercially sensitive information obtained byGovernment from individuals or organisations. In over a third of allCommonwealth secrecy provisions, legislation intended to protect individualprivacy and business secrets prohibits the disclosure of information relating to"the affairs of another person".

    The scope of the protection offered by secrecy provisions of this kind oftendepends on whether information in the possession of a government agency can beshown to have been acquired under the legislation. Information provided understatutory powers of compulsion will clearly be covered. But the position inrelation to information supplied in the mistaken belief that it is required, orinformation derived from facts observed by officers, is less clear.41 In CanadianPacific Tobacco Co Ltd v Stapleton,42 Dixon J observed that, a very wideoperation should be given to these provisions in determining whetherinformation is obtained "under" the Act. However, it may be that the Courts infuture may not be so ready to give these provisions a wide scope. In Foley vTectran Corporation Pty Ltd43 Kirby P noted that Dixon J's approach to secrecyprovisions limiting the gathering of evidence by the courts was adopted thirtyyears ago, before moves by the High Court in Sankey v Whitlam & Ors44 andCommonwealth v John Fairfax & Sons Ltd45 to uphold the integrity of the courtprocess and its importance to the proper administration of justice.

    The many secrecy provisions which use the formulation "information withrespect to the affairs of another person" apply to both information in the form in

    37 Crimes Act ss 78(3), 79(8).38 Human Rights Commission, Review of the Crimes Act 1914 and other cri~s legislation

    of the Commonwealth (1983) 8.39 [1894] AC 57; see also Marlcby 1I R (1978) 140 CLR 108; Perry 1I R (1982) 150 CLR

    580.40 Prohibited place is defined in the Crimes Act 1914 s 80.41 See I Eagles, "Public Interest Immunity and Statutory Privilege" (1983) 42 Camb U 118,

    137-139 (hereafter referred to as "Eagles"); AG (NT) 1I Maurice (1986) 65 ALR 230,245; Huoa Mari" 1I Hutt Timber Co [1950] NZLR 458, 460.

    42 (1952) 86 CI.R 1, 5.43 (1984) 57 ALR 26, 31.44 (1978) 142 CLR 1.4S (1980) 147 CLR 39.

  • 56 Federal Law Review [VOLUME 9

    which it is provided to Government and to information which has been re-statedor paraphrased in Government documents.46 Information ceases to beinformation with respect to the affairs of a person if the potential invasion ofprivacy caused by its disclosure is removed. Thus the Privy Council in GaminiBus Co Ltd v Commissioner of Income Tax for Colomb047 held that if thedetails identifying the person to whom the information relates are deleted, thesecrecy provision does not apply (for example, information extracted in ananonymous form from personal files). One would not expect an invasion ofprivacy to result when the only disclosure is to the person to whom theinformation relates ("the record-subject") but it is often unclear whether secrecyprovisions allow such disclosure. Disclosure to the record subject is usuallypermitted under an exception commonly found in secrecy provisions whichallows disclosure in the course of an officer's duty.48 But in any event disclosureto a record-subject cannot be prevented under a secrecy provision if theinformation is subject to disclosure under the Freedom of Information Act1982.49 A secrecy provision using the "affairs of a person" formulation preventsdisclosure to any person other than the record-subject, even where the record-subject consents to disclosure.50

    A number of other secrecy provisions prohibit the disclosure of specificcategories of information on personal privacy grounds. Legislation prohibitingdisclosure of information relating to the vote of an elector falls within thiscategory, though it also has the wider purpose of protecting the integrity of theelectoral system.51 Legislation protecting air traffic communication recordingsand air accident investigation reports has a role in privacy protection as well as inthe maintenance of good industrial relations.52 Census information also receivesspecific protection in provisions prohibiting the publication of any statisticalinformation which identifies the record-subject.53 One area of privacy protectionwhich has traditionally been the subject of specific secrecy provisions is mail andtelecommunications interception.54 The integrity of the telecommunicationssystem, the invasion of privacy and protection of personal liberty have been

    46 R v Clarkson (1982) VR 522; Re Actors Equity and Australian Broadcasting Tribunal(1984) I AAR 222.

    47 [1952] AC 571; see also Federal Commissioner of Taxation v Swiss Aluminium (1986)66 ALR 159, 163; Attomey-General's answer to parliamentary question re disclosure oftax information 1982, Sen Deb 1982, Vol 96, 1534 (14 October 1982).

    48 Mobil Oil Australia v FCf (1963) 113 CLR 475.49 Sections 32, 38 Freedom of Information Act 1982 (Cth) (hereafter referred to as the FOI

    Act).

    50 Spong v Spong [1914] VLR 77; Honeychurch v Honeychurch [1943] SASR 31, 31;Coonan v Richards (1947) QWN 19; Nunan v Gerblich (1974) 10 SASR 39; cfGeraghty v Woodforth and Stewart [1957] QWN 41; McLeod v Phillips (1905) 5 SR(NSW) 503; see G Nettheim, Private Infonnation in Public Hands (1979) 10 FL Rev 329,342 (hereafter referred to as Nettheim).

    51 Commonwealth Electoral Act 1918 s 323; Referendum (Machinery Provisions) Act1984 ss 67, 116; Australian Wine and Brandy (Election of Members) Regulations r 30.

    52 Air Navigation Regulations; Air Navigation Act 1920 s 27A; see also AustralianNational Airlines Commission v Commonwealth (1975) 132 CLR 589.

    53 Census and Statistics Act 1905 s 19.54 Telecommunications (Interception) Act 1979 s 63; Telecommunications Act 1975 s 82;

    Telecommunications commissions (TP) Act 1975 s 37; Overseas TelecommunicationsAct 1946 s 33A; Satellite Communications Act 1984 s 16; Customs Act 1901s 219F; Postal Services Regulations r 47.

  • 1990] Secrecy Provisions in Commonwealth Legislation 57

    identified as policy concerns justifying criminal penalties for unauthoriseddisclosure of this information.55

    D Business SecretsIn Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd56 Spender], in

    upholding an objection by the Australian Trade Commission to a subpoena,noted that many secrecy provisions are enacted in recognition of "[t]he need toprotect the business secrets of those who in the faith of the confidentiality oftheir dealings with the Commonwealth and its agencies disclose sensitiveconfidential information in the hope of securing a benefit conferred bylegislation". Statutory protection of business secrets is based not merely on thesensitivity of business about public exposure of its activities but also thedamage that may result to a business from disclosure of information useful to itscompetitors. A number of secrecy provisions prohibit disclosure of specificbusiness documents containing commercially sensitive information.57 However,the more common provisions, prohibiting disclosure of information relating to"the affairs of another person", also protect business information of individualsand corporations.58

    E Protection ofInformation SuppliersSecrecy provisions are often inserted in legislation as a guarantee to the record-

    subject that information will not be used or disclosed for purposes other than forwhich it is supplied.59 The record-subject should, in theory, be more truthful inhis disclosures if this guarantee is given (for example, taxpayers disclosingincome from illegal activities). But even where the information supplier (forexample, banks, employers, a State government) is not directly concerned toprotect the record-subject's interests, the supplier may expect the information tobe treated in confidence. The courts have frequently recognised a public interestin the efficient working of government agencies which depend upon the supplyof information by individuals and companies in order to perform their functions.As Lord Cross noted in Alfred Crompton Amusement Machines Ltd vCommissioners for Customs and Excise:

    ...it would cause general resentment if it were known that information of thissort obtained by the exercise of compulsory powers was liable to be disclosed toother persons ... traders hereafter asked for information of this sort would betempted to withhold it and ... the good relations which usually exist between[agencies] and their officers, on the one hand, and the traders with whom theydeal, on the other, would be impaired.60

    55 Report of the Royal Commission of Inquiry into Alleged Telephone Interceptions (1986)351, 352; Report of the Joint Select Committee on Telecommunications Interception(1986) (iv); see I D Elliot. "Controlling the Use of Electronic Surveillance in LawEnforcement" (1982) 6 Crim L J 327.

    56 (1986) 65 ALR 539. 543.57 Companies Act 1981 s 306; National Health Act 1953 s 73(4); Affirmative Action

    (Equal Employment Opportunity for Women) Act 1986 s 32; Designs Act 1906 s 40F;Patents Act 1952 s 55.

    58 Acts Interpretation Act 1901 s 22 (a); Federal Commission of Taxation v SwissAluminium Australia (1986) 66 ALR 159. 163; Mobil Oil Australia Ltd v Commissionerof Taxation (1963) 113 CLR 475.

    59 See D Meagher. Organised Crime (1983) 90 (hereafter referred to as Meagher).60 [1973] 2 All ER 1169. 1179.

  • 58 Federal Law Review [VOLUME 9

    A number of secrecy provisions in Commonwealth legislation expresslyprohibit any disclosure of information which is a breach of confidence.61 Otherprovisions prohibit the disclosure of information which the supplier claims isconfidential,62 prohibit the use of information except for the purpose it isacquired,63 or prohibit disclosure of information prejudicial to the interest of anyperson.64

    F Law Enforcement and Other Investigatory AgenciesSome secrecy provisions are included in Commonwealth legislation to support

    the investigatory functions of law enforcement agencies. For example in ReNews Corporation Ltd and the National Companies and Securities Commission6sthe Administrative Appeals Tribunal identified the public policy underlying s 47of the National Companies and Securities Act 1979 (Cth) as ensuring thatinvestigations are not impeded by offenders discovering how much investigatorsknow of their activities. Secrecy provisions in tax and social security legislationalso have a role in guaranteeing protection for the identity of informers. Outsidethe area of law enforcement, there are secrecy provisions supporting theoperations of safety compliance agencies. For example Air NavigationRegulations prohibit publication of air accident investigation reports. Theprovision gives paramount importance to the public interest in ensuring thatwitnesses are uninhibited in giving information to investigators. TheAdministrative Appeals Tribunal has accepted that to make such informationavailable for litigation by air accident victims, or to expose pilots and others todisciplinary action, would have an adverse effect on the flow of information toinvestigators.66

    G Regulating the Conduct ofOfficialsAll secrecy provisions, even those with a clear primary purpose of protecting

    the privacy of personal or commercial information, have a wider role in their useas disciplinary measures. They are in part directed at preserving what wasdescribed by the Federal Court in Commissioner of Taxation v SwissAluminium Australia Ltd67 as the "orderly administration and discipline of the[public] service". One writer68 has suggested that secrecy provisions in UnitedKingdom legislation originated as one mechanism used by elected representatives(that is, by Ministers) to gain control of the civil service. Many secrecyprovisions contain a general prohibition on disclosure, qualified by a powerpermitting disclosure at the discretion of a Minister or senior public servant.Thus, quite apart from their role in protecting public and private interests ininformation, secrecy provisions operate as a means of confining to seniorofficials all decisions about the dissemination of important information within

    61 Customs Administration Act 1985 s 16; Industry Research and Development Act 1986s 47; Automotive Industry Authority Act 1984 s 29.

    62 Trade Practices Act 1974 s 165(3).63 Fisheries Act 1952 s 17(3).64 Broadcasting Act 1942 s 124(5).65 (1983) 5 ALD 334, 342.66 Re Jamieson and Department of Aviation (1983) 5 ALN 216; see also Eggers & Wilson

    Construction (Nelson) Ltd (1964) NZLR 901.67 (1986) 66 ALR 159, 163, per Bowen C1; see also Re Mann and Commissioner of

    Taxation (1985) 3 AAR 261, 269.68 K G Robertson, Public Secrets (1982) 42

  • 1990] Secrecy Provisions in Commonwealth Legislation 59

    Government and to the public. Secrecy provisions can therefore be seen to havean important role in maintaining the power base of Ministers and senior publicservants.

    H Regulating the Flow ofInformation between Government AgenciesSecrecy provisions fulfil a purpose, not only in preventing disclosure of

    information to the public, but also in limiting the circulation of informationbetween government agencies. The Australian Law Reform Commission hasargued that when information is collected by the Government from outsidesources, there is a common expectation on the part of the supplier that it will beused only for the purpose for which it is collected.69 The recent enactment of thePrivacy Act 1988 (Cth) has given legislative force to this expectation. Howeverin practice there is a "conflict between the requirements of secrecy and the pullwhich the exingencies of administration inevitably exerted towards the freeexchange of information among ... governmental departments".7o Thus secrecyprovisions have been used to try to control the exchange of information withinGovernment. Secrecy provisions in taxation legislation have in recent yearsbeen the subject of frequent amendment to permit disclosures to law enforcementand investigatory bodies.71 As discussed below it is open to question whethersecrecy provisions are really suited to the task of regulating the flow ofinformation in government

    I Other Provisions Limiting the Use or Acquisition ofInformationThe categories of secrecy provisions discussed above directly prohibit the

    disclosure of information to the public. But many other provisions inCommonwealth legislation may have the effect of limiting the use ofinformation in particular circumstances. These include provisions:

    (a) empowering a Court, tribunal or other body to prohibit the communicationor publication of information or documents disclosed in the course ofproceedings; these provisions, which usually accompany provisionspermitting a court or Tribunal to conduct proceedings in private, are listedin the appendix;

    (b) stating that information or documents are not admissible, or that questionsneed not be answered, in judicial proceedings;72 these provisions usuallyaccompany provisions requiring persons to answer incriminating questions;

    (c) prohibiting the inclusion of information in government publications (forexample, annual reports) or statements of reasons for decision73;

    (d) creating an offence for a person to acquire information74;

    (e) requiring officials to take an oath of secrecy;75 these provisions do notoperate as a legal bar to disclosure of information by officials unless the

    69 ALRC Report: Privacy, supra n 6, Vol 1, para 798.70 Jaclcson v Magrath (1941) 75 CLR 293, 312 per Dixon J.71 Income Tax Assessment Act 1936 ss 16(4)-16(6); National Crime Authority

    (Miscellaneous Amendments) Act 1985.72 Bounty (High Alloy Steel Products) Act 1983 s 18.73 Aboriginal Development Commission Act 1980, s 40(3) prohibiting inclusion of sacred

    aboriginal material in an Annual Report. See also Senate Committee Report, supra n 3,235.

    74 Crimes Act 1914 s 168.75 These provisions are listed in the Appendix.

  • 60 Federal Law Review [VOLUME 9

    statute also makes a breach of the oath an offence76 - an oath gives rise toa moral obligation but not a legal obligation77;

    (f) specifying the uses to which an agency may put information;78 theseprovisions might by implication constitute an exhaustive code and prohibitany other use of disclosure of the information; the invitation to draw suchan implication has been resisted by the Courts in considering objections todisclosure of documents for the purposes of litigation,79 and claims forexemption under the FOI Act.80

    None of these provisions of their own force prohibit public disclosure ofinformation by officials.sI But some may indirectly be the source of authorityfor limitations on access to information. This distinction is relevant to the issuewhether secrecy provisions operate as a bar to authorised public disclosure ofinformation under the FOI Act.

    A number of provisions in Commonwealth legislation prohibit the"publication" of information by officials.s2 The ordinary meaning of "publish"is to make public,s3 meaning the giving of information to the public or asignificant section of it. However in secrecy provisions the word is generallyused in a narrower sense. To establish a breach of a secrecy provision whichprohibits publication, it is not necessary to show that information has been madewidely known in the community. Communication to any person (who is thenfree to make use of it as he pleases) will suffice.84 In Re Jamieson andDepartment of Aviation85 a government agency successfully argued that aprohibition on disclosure of this kind is an effective barrier to authorised publicdisclosure of documents under the FOI Act.

    Provisions which prohibit the "production" of documents to a person86 arecommonly directed at preventing disclosure of documents to courts and tribunals.

    76 Sankey v Whitlam (1978) 142 CLR I, 42, 100; Whitlam v Australian ConsolidatedPress (1985) 60 ACTR 7; Lee v Birrell (1813) 170 ER 1402; Cf In re JosephHargreaves Ltd [1900] 1 Ch 347; Coonan v Richardson (1947) QWN 19.

    77 Attorney-General v Johnathon Cape Ltd (1976) 1 QB 752, 767; in relation to use of abreach of an oath in disciplinary proceedings see Ontario Law Refonn Commission:Report on Political Activity, Public Comment and Disclosure by Crown Employees(1986), 90.

    78 See Industry Assistance Commission Act 1973 s 40A; Australian Military Regulationsr 770.

    79 Barton v Csdei [1979] 1 NSW LR 524; Wran v ABC [1984] 3 NSWLR 241, 260;Norwich Pharmacal Co v Commissioners of Customs and Excise [1973] 2 All ER 943,954, 968; cf In re D (infants) [1970] 1 All ER 1088, 1089.

    80 Kavvadias v Commonwealth Ombudsman (1984) 52 ALR 728, 734; Re Actors EquityAssociation and Australian Broadcasting Tribunal [1984] 1 AAR 222, 234; Re Z andAustralian Taxation Office [1984] 2 AAR 190, 193; Re Mann and Australian TaxationOffice (1985] 3 AAR 261, 269;

    81 Senate Committee Report, supra n 3, 234-235; see P J Bayne, Freedom of Information(1984), 164.

    82 These provisions are listed as category E in the Appendix.83 Boucicault v Chatterton (1877) 5 Ch 267, 279; Crowe v Graham (1968) 121 CLR 375 t

    388.84 Re Nolan and Department of Aviation unreported AAT decision 8 March 1985, 6; see

    also Humpherson v Syer (1887) 4 RPC 407, 413; cf Ex parte Black Re Morony (No 1)[1965] NSWR 932.

    85 (1983) 5 ALN 216.86 Racial Discrimination Act 1975 s 27F(1 )(c); Australian Security Intelligence

    Organisation Act 1979 s 925.

  • 1990] Secrecy Provisions in Commonwealth Legislation 61

    But the word "produce" is not limited in meaning to bringing evidence forward ina court of law. Its ordinary grammatical meaning includes bringing forward adocument for inspection by any person.87 Accordingly a secrecy provision whichcreates an offence of producing a document to a person is an effective prohibitionon public disclosure.88

    2 EXEMPTIONS AND QUALIFICATIONS IN SECRECY PROVISIONS

    The imposition of total secrecy to protect information from public disclosure,or from unauthorised dissemination to other government agencies, would lead toinflexibility in the use of that information by Government agencies. To preservesome flexibility, most secrecy provisions include a list of exceptions from theprohibition on disclosure. However the impact of many exceptions, enacted overmany years with a "bewildering diversity of drafting styles" ,89 has confused theprinciples regulating the handling of information within government.90

    Many secrecy provisions include exceptions permitting disclosure by an officerin the course of his duties or at least for the purpose of his duties under thelegislation containing the secrecy provision. In relation to the former type ofexception, the ALRC Report on Privacy91 suggested that the word "duty" shouldbe read narrowly and that it allows disclosure only for the purposes of dutiesunder the legislation containing the secrecy provision. Such an interpretationwould of course limit the potential for breaches of privacy which may resultfrom the use by other government agencies of personally sensitive information.However the courts, which are concerned to limit the scope of secrecy provisionswhich deprive them of evidence relevant to issues in dispute before them haveadopted a wide interpretation of the word "duty" in this context. In CanadianPacific Tobacco Co Ltd v Stapleton92 the High Court decided that:

    the word 'duty' ... is not ... used in a sense that is confined to a legalobligation, but really would be better represented by the word 'function'. Theexception governs all that is incidental to carrying to what is commonly called'the duties of an officer's employment'; that is to say, the functions and properactions which his employment authorises".93

    Unless a secrecy provision expressly excludes disclosure to authoritiesempowered to compel the disclosure of information or documents, disclosuremay be compell~d by courts, tribunals,94 Royal Commissions,95 statutorycommissioners96 and certain parliamentary committees.97

    87 Bulton v Evans (1984) 56 ALR 317.88 Re Actors Equity Association and Australian Broadcasting Tribunal (1984) 1 AAR 222,

    231.89 I Eagles, supra n 41, 118.90 See Office of Special Prosecutor Redlich Annual Report (1982-83), 47-48; ALRC Report

    on Privacy, supra n 6, paras 404-408.91 ALRC Report: Privacy, supra n 6, Vol I, para 947.92 (1952) 86 CLR 193 Ibid 6 per Dixon I .94 Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475.95 RCAGA, supra n 7, Volume 4, 356-358; Hallet, Royal Commissions and Boards of

    Inquiry (1982) 125, 126.96 Attorney-General (Northern Territory) v Maurice (1986) 65 ALR 230.

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    Many secrecy provIsIons include exceptions permitting disclosure if aMinister, senior officer or other authority is satisfied that disclosure is in thepublic interest or that certain other conditions have be met. The conferral ofsuch unregulated discretions on unaccountable officials has been the subject ofcriticism on the basis that they undermine the independent review function offreedom of information legislation,98 that they may be inconsistent with properprivacy protection principles,99 that they may undermine obligations ofconfidence owed to information suppliers100 and, in relation to disclosure ofinformation to the Courts, that they allow selective claims of privilege and theediting of evidence given to the COurts.101 The general secrecy provisions of theCrimes Act are notable for the conferral of wide discretions on senior officials toauthorise otherwise unlawful acts of disclosure. Sections 70 and 79(3) do notspecify who may authorise the disclosure of information. A committee102 whichreviewed equivalent provisions in the United Kingdom suggested that in practiceauthorisation for this purpose is implied, flowing from the nature of publicservant's duties. It accepted that Ministers and 'senior' civil servants are self-authorising. Therefore the United Kingdom Official Secrets Act has noapplication to what to an outsider might appear to be unauthorised briefings orleaks. One writer103 has summarised the Franks Committee conclusion as towho is authorised with the words "those who have it know, and those who areuncertain do not". The same assumptions are made in the Australian context.l04Guidelines issued to officers of the Australian Public Service require that"proper" clearance by obtained for any use of unpublished official information.losRegulations made under the Public Service Act 1922 require the expressauthority of the Chief Officer of a public service Department for any disclosurewhich is not made in the course of their dUty.106

    A few secrecy provisions attempt to lay down a code regulating the disclosureof information to the public or between government agencies. The ALRCReport on Privacy,l07 although generally opposed to discretionary disclosure,acknowledged the difficulty of setting down a code to narrowly define thecircumstances in which disclosure is warranted. Any attempt to include such acode leads to further complexity in a secrecy provision and results in regulardemands for amendment to deal with changing criteria for information sharingwithin government In 1947 in Jackson v Magrath, Dixon J commented on the

    97 See "Questions to Commonwealth officers: privilege" opinion by Solicitor-General K HBailey to Senate Regulations and Ordinances Committee. 14 September 1956. reproducedin J R Odgers Australian Senate Practice (5th ed 1976) 548-554.

    98 Senate Committee Report. supra n 3,236.99 ALRC Report on Privacy, supra n 6. paras 937, 951, 1319.100 Ibid, paras 947, 1319.101 Eagles. supra n 41. 131 citing R v Saint Merat [1958] NZLR 1147.102 Departmental Committee on s 2 of the Official Secrets Act 1911 (1972) Vol 1, 14-15

    (hereafter referred to as the Franks Committee).103 J Michael, The Politics of Secrecy (1982) 30.104 See Royal Commission on Australia's Security and Intelligence Agencies, Report on term

    of reference (c) (1983), 190-191; Curtis, Freedom of Information Legislation, RCAGA.supra n 7, Vol 2, 168-169.

    Ins Guidelines on official conduct, Commonwealth Public Service Board Personnel Manual(1983) Vol 3, para 4.8.

    Ins Public Service Regulations r 35.107 ALRC Report: Privacy, supra n 6, Vol 1, para 951.

  • 1990] Secrecy Provisions in Commonwealth Legislation 63

    growing complexity of the secrecy provision in the Income Tax Assessment Act1936:

    There is plenty of evidence in the rather lengthy provisions contained in s.16that the conflict between the requirements of secrecy and the pull which theexingencies of administration inevitably exerted towards the free exchange ofinformation among fiscal and other government departments has proved arecurring problem for the draftsman. It is apparent that no ready formula hasbeen found for its solution.108

    Forty years later the position remains much the same. One means used toavoid the resulting administrative problems to enact further legislation to providethat secrecy provisions do not, unless the contrary intention is expressed,preclude disclosure to a particular agency (for example, CommonwealthOmbudsman,l09 Auditor-GeneraI110). Another means is for legislation tospecifically provide that only those secrecy provisions listed in a schedulepreclude disclosure to an agency (for example, National Crime Authoritylll).Some secrecy provisions include a power to make regulations specifying thepurposes for which infonnation may be disclosed.

    Most secrecy provisions include some specification of the persons to whomdisclosure is allowed. They commonly permit disclosure to law enforcementagencies (including Customs and the Commissioner of Taxation), or otherspecified Commonwealth Government bodies. Some provisions allow disclosureto State government agencies. Although a Minister theoretically may haveadministrative responsibility for administering legislation, a secrecy provisionwill be effective to prohibit disclosure to the Minister unless the legislationincludes an exception permitting disclosure to the Minister. Disclosure to aMinister may be permitted if it is necessary in the course of the official's duties.Many Tax Acts expressly prohibit disclosure to the Minister and these have beenthe subject of strong criticism on the ground that they have hidden fromministerial scrutiny public service inefficiency and fraud against theCommonwealth. 112 Often secrecy provisions fail to provide for obviousdisclosure problems. Some secrecy provisions advert to the possibility thatdisclosure of information may be justified in the public interest. II3 Someexpressly provide for disclosure to others with the supplier's consent.114 Oftenprovisions prohibiting disclosure of the affairs of a person are drafted on theassumption that in the absence of an express exception no disclosure would bepermissible to the record-subject,115 a person authorised by the record-subject,116

    1~ (1947) 75 CLR 293, 312.1(9 Ombudsman Act 1976 s 9(4).110 Audit Act 1901 s 14C.111 National Crime Authority Act 1984 s 20 and Schedule 1.112 See Costigan Royal Commission Interim Report No 4 (1982), supra n 7, 95; Meagher,

    supra n 59, 94-95.113 Ombudsman Act 1976 s 35; Merit Protection (Australian Government Employees) Act

    1984 s 84; Australian Trade Commission Act 1985 s 94.114 Ombudsman Act 1976 s 35(3); Complaints (AFP) Act 1981 s 41; Income Tax

    Assessment Act 1936 s 16(4B)(a)115 Census and Statistics Act 1901 s 19.116 Homes Savings Grants Act 1964 s 13(4)(C); Disability Services Act 1986 s 28(5)(c);

    Student Assistance Act 1973 s 29B(I)(a)(iii).

  • 64 Federal Law Review [VOLUME 9

    or his legal representatives.117 These provisions may be more concerned withprotecting the interests of suppliers of information than the interests of therecord-subject Secrecy provisions protecting information relating to the affairsof a person occasionally provide that infonnation may be disclosed if identifyingdetails of the record-subject are removed.118 In any event the decision of thePrivy Council in Gamini Bus Co Ltd v Commissioner of Income Tax,Colombo 119 has introduced some flexibility in this area, allowing disclosure ofinformation covered by a privacy secrecy provision if the record-subject is notidentified.

    Where a secrecy provision permits disclosure to other government agenciesthen, in the absence of a specific provision, the persons receiving theinformation are not bound by that statute to maintain its confidentiality)20Some secrecy provisions attempt to deal with this by imposing a furtherprohibition on disclosure by recipients.

    3 SECRECY PROVISIONS AND THE GATHERING OF EVIDENCE BYTHE COURTS

    In a decision by the House of Lords in 1938 Lord Wright, upholding anobjection to a subpoena addressed to a statutory authority on the basis of asecrecy provision, stated the Court's approach to secrecy provisions as follows:

    It is inevitable that a Court of law should approach in a critical spiritlegislation which is calculated to impede the court in the discharge of its duty toadminister justice by preventing it from obtaining any material evidence of anature likely to assist it to ascertain the truth. Hence a Court will be disposed... to construe the section if possible so as to avoid that result.l 21

    This statement also reflects the approach of courts in Australia to secrecyprovisions. The pattern was established in Canadian Pacific Tobacco Co Ltd vStapleton.l22 A company prosecuted in contempt proceedings objected to a TaxDepartment officer giving evidence of admissions made by the company'sofficers. The High Court decided that a secrecy provision, prohibiting thedisclosure by officers of information to "any person", had no application to aCourt In the words of Dixon J, "Courts could hardly be called persons".123 Thereading down of most secrecy provisions on this arguably narrow view of theword "person" had been the subject of academic criticism,l24 and has not beenaccepted by all members of the High Court in the past l25 It has however been

    117 Income Tax Assessment Act 1936 s 16(4C); Designs Act 1906 s 40F; see also FCT vOfficial Receiver (1956) 95 CLR 300, 329.

    118 Census and Statistics Act 1905 s 12; Air Navigation Regulations r 107(3); FisheriesRegulations r 19(2).

    119 [1952] AC 571.l~ Supra n 79, 532; Re Sheepskin and Opal Exporters and Export Development Grants

    Board (1984) 2 AAR 115.121 Rowell v Pratt [1938] AC 101, 104; courts in the United States adopt a similar narrow

    approach: see "Discovery of Government Documents and the Official InfonnationPrivilege" (1976) 76 Colum Law Rev 142.

    122 (1952) 86 CLR 1.123 Ibid 6.124 I Eagles, supra n 41, 121; G Nettheim, supra n 50, 347-348; see also Auckland Hotel v

    Pagni (1915) 17 GlR 311.125 See Jacobs J in Miller v Miller (1978) 141 CLR 269, 219.

  • 1990] Secrecy Provisions in Commonwealth Legislation 65

    consistently followed by lower courts,126 and the High Court affirmed theinterpretation in Hilton v Wells.l 27 In any event, both before and after thedecision in Canadian Pacific, courts in Australia had been ready to read downsecrecy provisions without reference to the question whether the word "person"includes a court In Re O'Brienl28 the South Australian Supreme Court ruledthat the production of a telegram in court could not be regarded as "divulging" acommunication within the meaning of a secrecy provision in Telegraph Act1857 (SA). In Lander v Mitsonl29 it was decided that entirely passive conduct infailing to resist execution of a warrant is not "divulging" information in breachof a secrecy provision. The courts may interpret exceptions in secrecyprovisions allowing disclosures required by law as permitting disclosure to aCOurtl30

    In Gardner v Kogarah Municipal Council131 the New South Wales Court ofAppeal was prepared simply to assume that the legislature did not intend asecrecy provision to extend to disclosure to a court. In a recent decision the FullFederal Court drew on the "legislative and historical context" of a secrecyprovision in the Aboriginal Land Rights (Northern Territory) Act 1976 in orderto read down its alleged effect in excluding disclosure of information to the courtand a statutory tribunal.132 It is perhaps preferable to see the various approachesby the courts to secrecy provisions as one based on the view that the primarypurpose of a secrecy provision is to regulate disclosure to the public, that a courtis one of the arms of government and that Parliament should not be taken to beaddressing its directives to the courts unless a statute clearly says so.1 33

    In any event the legislature may be taken to have accepted the limitation placedby the courts on secrecy provisions. It is now common for these provisions toexpressly include a provision stating that an official shall not be required todisclose information to a court. In addition, secrecy provisions now commonlyextend this prohibition to disclosure to any tribunal or other person with powerto compel the disclosure of information. l34 This practice follows the HighCourt's ruling in Mobil Oil Australia Ply Ltd v Commissioner of Taxation13Sthat a secrecy provision in Public Service Regulations, which permitteddisclosure by an official in the course of his duty, did not provide the DefenceStandard Laboratories with grounds for refusing to disclose confidentialinformation to a Tax Board of Review. Justice Kitto said the

    if an officer is required, by a body having legal authority to obtain informationcompulsorily, to give information or disclose the contents of documents which

    126 Stapleton v Wilson [1956] QWN 48; Geraghty v Woodforth and Stewart [1957] QWN41; Ex parte Black. re Monrony (1965) NSWR 932.

    171 (1985) 157 CLR 57; see also supra n 125, 277; Wran v ABC (1984) 3 NSWLR 241.128 [1879] SALR 79; see also R v Beynon (1963) NZLR 635: communicating infonnation

    does not include giving testimony.129 (1988) 83 ALR 466.130 Cf Ship v The King (1949) 95 CCR 143.131 [1924] 24 NSWR 474.132 Attorney-General Northern Territory v Maurice (1986) 65 ALR 230, 245.133 Cowan v Stanhill [1966] VR 604, 609.134 Eg National Health Act 1953, s 135A.135 Supra n 58.

  • 66 Federal Law Review [VOLUME 9

    he has in his official capacity, it is in the course of his official duty to obey therequirement.136

    Secrecy provisions prohibiting disclosure to a court often include exceptionspermitting disclosure to the court at the discretion of an official, in the course ofan official's duty, or at the discretion of a court where disclosure is necessary.137Courts generally interpret the latter kind of exceptions widely in order tomaximise disclosure of information relevant to their proceedings. It may be partof an official's duties to disclose information to a court whenever it is necessaryin the interests of ensuring a fair and just hearing.l38 The courts (not officials)determine whether disclosure is "necessary". Thus the Income Tax AssessmentAct 1936 permits disclosure to taxpayers in appeals against tax assessments, inappeals against Tax Board of Review decisions, in bankruptcy proceedingsbrought by the Commissioner for Taxation, and in litigation against theCommissioner under the Administrative Decisions Judicial Review Act 1977.139Where disclosure to a court is solely at the discretion of officials, in practice itmay seldom be exercised in favour of disclosure.I40

    Difficult questions of interpretation can arise where a secrecy provision doesnot directly impose any prohibition on disclosure to a court but, as an exceptionto the general prohibition on disclosure by officials, provides that disclosure to acourt is permitted in certain proceedings. In Rowell v Pratt141 the House ofLords decided that an exception in an Act, which prohibited disclosure ofinformation by officers of a statutory marketing authority except for the purposeof legal proceedings under that Act, by implication necessarily excludeddisclosure for the purpose of any other legal proceedings. However in Australiain Hilton v Wells142 the High Court by a majority decided that an Act,prohibiting disclosure of intercepted telecommunications except in a limitedcategory of legal proceedings, did not impliedly preclude disclosure in those otherlegal proceedings. The majority view was that the absence of an expressprohibition on disclosure in other proceedings due to "a legislative oversight"permitted disclosure in other proceedings. The majority decision has beenfollowed subsequently but the "considerable attraction" of the opposite view hasbeen notOO.143

    Almost all secrecy provisions limiting disclosure to a court are expressed interms which make it clear that, while an official cannot be compelled by a courtto disclose information, he is still competent to do so. If information isdisclosed by an official to a court under instruction by his superiors there is no

    136 Ibid 505; see also Nestle Australia Ltd v FCI' (1986) 67 ALR 128t 131.137 The differences in scope of these exceptions are discussed in Honeychurch v

    Honeychurch [1943] SASR 31; Rowell v Prall [1938] AC 101 t 106; I Eaglest supra n41 t 135-146; G Nettheim t supra n 50t 344.

    138 Re Fortex Pty Ltd (1986) 86 ATC 4351 t 4357.139 Nestle Australia Ltd v FCT (1986) 67 ALR 128; Krew v FCT (1971) 45 AUR 249;

    L'Estrange v FCT (1973) 47 AUR 319; Norper Investments Pty Lld v DCI' [1977] ATe4211; cf O'Flaherty v McBride (1920) 28 CLR 283; DCT v Glastonbury SteelFabrications Pty Ltd (1984) 15 ATR 887.

    140 ALRC Report: PrivacYt supra n 6t Vol It para 388.141 [1938] AC 101 t 106.142 (1985) 157 CLR 57.143 Wilcox J in Duff v McCulloch (1985) 65 ALR 677 t 682; cf Barton v Csidei [1979] 1

    NSWLR 524; Attorney-General (Northern Territory) v Maurice (1986) 65 ALR 230, 245.

  • 1990] Secrecy Provisions in Commonwealth Legislation 67

    breach of the provision and his evidence is admissible.l44 Some decisions bycourts in Australia have suggested that the protection of the confidences ofprivate citizens is the paramount consideration and that officials had a moral, ifnot legal, duty to refuse disclosure even if competent to permit it.14S Howeversubsequent decisions show that this view has not always been accepted. Thecourts have been provided with information by officials, at least for the purposeof prosecutions under legislation.l46

    Many secrecy provisions fail to specifically address privacy issues in limitingdisclosure to courts. Where a secrecy provision permits disclosure to a court inthe course of an official's duty, this includes disclosure by the official directly tothe court or disclosure during an step in proceedings which may ultimately leadto the infonnation being adduced in evidence.t47 Thus it may include disclosureto legal representatives, court staff, any members of the public who happen to bein court and even to trade competitors of the person to whom the informationrelates.148

    The court or tribunal may itself decide to permit further disclosures. Where asecrecy provision permits disclosure of information by officials to the court, thecourt is not precluded from giving the infonnation to any person or body who is"properly concerned" with the subject matter but an agency subject to a secrecyprovision may have a" duty to object to disclosure by the COurt.149 It has beensuggested that secrecy provisions should expressly provide for a record subject tobe given notice of the possible disclosure.1so

    One unresolved issue is the nature of the protection given by a secrecyprovision which limits disclosure to the courts. Some decisions suggest theprovision effectively stands as a separate head of privilege.1S1 The question is ofsome practical importance because of the general rule of evidence that secondaryevidence of the contents of a document is not admissible where the original isprivileged. lS2 A number of courts have been confronted with this issue whendiscovery is sought against a party of copies of his tax returns. The tax returnitself is protected from disclosure in official hands by a secrecy provision. Thequestion raises a policy issue in such cases as the taxpayer may argue that, butfor the tax legislation, he would not have created or kept copies of such adocument. Compulsory disclosure of his copy undermines the assurance ofconfidentiality given to the taxpayer by secrecy provisions in return for honestdischarge of the statutory duty to disclose his affairs to the Government. Theweight of authority now seems to favour the view that secrecy provisions only

    144 Canadian Pacific Tobacco Co v Stapleton (1952) 86 CLR I, 7 per Dixon CJ; 10 perMcTiernan J; National Discounts Ltd v JaqlUs, Re Doyle (1955) 33 CLR 449, 463.

    145 Honeychurch v Honeychurch [1943] SASR 31.146 Re Goretslci (1970) Argus LR 805; supra n 79.147 Irvin v Whitford (1978) Qd R 137, 140; but cf Nestle Australia Ltd v FCT (1986) 67

    ALR 128.148 Mobil Oil Australia Ply Ltd v FCT (1963) 113 CLR 475; R v Padman (1979) 25 ALR

    36, 40; Rowell v Prall [1938] AC 101, 114; see also Austin v Tax Agents Board(NSW) (1985) 60 ALR 589.

    149 Re Sheepskin [1984] 2 AAR lIS, Brown v Commissioner AFP (1988) 83 ALR 477.150 ALRC Report: Privacy, supra n 6, Vol 1, para 389.lSI Honeychurch v Honeychurch [1943] SASR 31, 36; R v Beynon (1963) NZLR 635;

    Nunan v Gerblich (1974) 10 SASR 39, cf Rowell v Prall [1938] AC 101, 112; R eGoretzki [1970] Argus LR 80S.

    IS2 O'Flaherty v McBride (1920) 28 CLR 283, 288.

  • 68 Federal Law Review [VOLUME 9

    protect documents in the hands of officials. No implication of a wider privilegeis to be made.l53 Regardless of the legal position in relation to copies of taxreturns, the High Court's decision in Mobil Oil Australia Pty Ltd v TheCommissioner ofTaxation154 is clear authority for the proposition that a secrecyprovision does not prevent a taxpayer being required to give oral evidence ofinfonnation in a tax return.

    Secrecy provisions which restrict the ability of courts to compulsorily acquireinfonnation from Government are growing in number. To some extent this mayrepresent a reaction to recent developments in the law of public interestimmunity. In 1943 the South Australian Supreme Court in Honeychurch vHoneychurch (1943)155 could say with confidence that

    even if there was no such statutory [secrecy] provision the responsible Ministerof the Crown woul~ on the ground of policy. claim privilege in respect of[documents and information furnished by the public under statute] ... and thuseffectively prevent their being produced in Court.

    More recently the effectiveness of public interest immunity claims has cometo depend on a balancing by the courts of the interests of the administration ofjustice against the interests of the proper functioning of the Executive arm ofGovernment. In the absence of statutory provisions the courts no longer accept aMinister's certificate as conclusive of the public interest issue.Is6 Some haveargued that these developments in the common law have shifted the balance ofpower too far from the executive to the judiciary.lS7 The response atCommonwealth level in Australia seems to have been a continuation of thepractice of enacting secrecy provisions which limit disclosure of particularcategories of government held information to the Courts.

    Eagles1S8 suggests that two other motives underlie the enactment of secrecyprovisions for that purpose. The frrst is a desire for certainty to replace theunpredictable consequences of a balancing of interests by the courts from case tocase. The second involves a recognition that, in assessing public interestimmunity claims, the courts have been slow to give substantial weight to thepublic interest in protecting personal information about individuals or preventingbreaches of confidence)S9 Eagles suggests that secrecy provisions are "anextreme case of legislative overkill"160 as they simply involve replacing theinexact science of case analysis with the uncertainties of statutory interpretation.Secrecy provisions lack the flexibility of the common law. It is often difficultfor the draftsman to predict and provide for matters such as policy changes, the

    153 Smout v Wallcer (1967) QWN 13; Oudman v Warren (1963) 80 WN (NSW) 546; ReGoretzJci [1970] Argus LR 805; Barton v Csuui (1979) 1 NSWLR 524; cf Honeychurchv Honeychurch [1943] SASR 31; Coonan v Richards [1947] QWN 19; Nunan vGerblich (1974) 10 SASR 39.

    154 (1963) 113 CLR 475, 494, 495, 501.155 Supra n 145 per Richards I.156 Sanuy v Whitlam (1978) 142 CLR 1; Australian National Airlines v Commonw~alth

    (1975) 132 CLR 582, 592.157 Eg Federal Provincial Task Force, Report on Uniform Rules of Evuunce (Canada 1982)

    para 34.6 referred to in ALRC Interim Report No 26: Evidence (1985) Vol 1; HumanRights Commission v Attorney-General of Canada (1982) 134 DLR (3d) 17 (see note in(1983) 57 AU 354).

    158 I Eagles, supra n 41. 133, 136, 140-149.159 ALRC Report: Privacy, supra n 6, Vol I, paras 954-978.160 I Eagles, supra n 41, 147.

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    interests of both suppliers of information and record subjects, the nature andimportance of court proceedings in which the secrecy provision may apply, therelative importance of the infonnation in resolving issues in the proceedings andthe changing sensitivity of personal or commercial information over time.

    It is inevitable that the courts and the executive may have different views aboutthe balance of competing public policies for and against disclosure. The HighCourt's decision in Australian National Airlines v Commonwealth,161 brushingaside a claim of privilege for infonnation the disclosure of which would result ina breach of privacy and industrial action, illustrates this conflict. The Courtdecided that the public interest in the proper administration of justice outweighedthese claims. The secrecy provisions enacted in response to such decisions,which limit disclosure to a court but leave open the discretion of officials to doso, must be taken to represent a judgement by Parliament that the executiverather than a court is the appropriate authority to determine where the balance liesin relation to disclosure of particular information. In passing such legislation,Parliament may be accepting the view that the courts have nothing

    to offer in ... reconciling competing claims of secrecy and publicity. Thejudges are regarded as too remote from the realities of administration and thejudicial process is suspect because of its openness, its slowness and itsunpredictability. 162

    On the other hand the question can be asked whether Government officials aresufficiently independent to undertake the required balancing of interests.Questions arise whether the regulators can ever be sufficiently well informed orsufficiently objective to weigh the important interests of the administration ofjustice and balance them against the interests of the industries they regulate orthe other interests they are seeking to protect

    It may be that secrecy provisions limiting disclosure of information to courtshave no major overall effect on access by the courts to evidence relevant to issuesto be detennined by them. As Kirby P observed in Foley v Teetran CorporationPly Ltd,163 secrecy provisions do not leave the courts incapable of securingrelevant information. It may be that most Government documents of interest tolitigants are copies of documents available from individuals outside GovernmentThus no major in-road may result in practice from statutory limits on access bycourts to government information. However provisions limiting access by acourt to government information clearly should not be enacted as a matter ofcourse. With each category of information (national security, defence, businesssecrets, personal information) a judgment needs to be made about whether thecourts are suited to the task of weighing and balancing the competing publicinterests involved. Where the courts have failed to give sufficient weight to thepublic interest concerns weighing against disclosure of particular information,provisions can be drafted which redress the balance. They may lay downconditions for the exercise by a court of its discretion, without giving officialstotal control over disclosure. For example some secrecy provisions inCommonwealth legislation now lay down a detailed code regulating the

    161 (1975) 132 CLR 582. 591.162 D Williams. supra n 31. 155-6.163 (1984) 57 ALR 26. 32.

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    circumstances and safeguards applying to disclosure of information to thecourts.164

    4 REGULATING AUTHORISED PUBLIC DISCLOSURE OFGOVERNMENT INFORMAnON

    The Freedom of Information Act 1982 came into operation on 1 December1982 establishing legal rights of public access to information in documents inthe possession of Commonwealth agencies and Ministers. The rights of publicaccess to documents established by the Act are expressly declared to be limited byexceptions and exemptions necessary for the protection of essential publicinterests and the private and business affairs of persons in respect of whoinformation is collected.l6s Clearly decisions under the Act about disclosure ofinformation relevant to issues such as defence, national security, privacy andcommercial disadvantage have to be taken by responsible officials. Thus, underthe FOI Act, a document may be disclosed only by an officer acting within thescope of authority conferred on him under arrangements made by a Minister orthe principal officer of an agency.l66 The Act specifically provides that, whereaccess is given to a document by an authorised officer, the officer is not guilty ofany criminal offence.l67 This means the officer is not subject to the penaltiesnormally applying under secrecy provisions for disclosure of informationproviding the document is not exempt, or he has a bona fide belief that thedocument is not exempt, from disclosure under the Act.

    The difficulty is that s 38 of the FOI Act provides that some secrecyprovisions give defacto grounds of exemption under that Act. The developmentof the exemption in s 38 of the FOI Act, which preserves the operation of onlysome secrecy provisions in has been outlined elsewhere.168 This exemption hasbeen beset by difficulties of interpretation which should be resolved by recentlyannounced proposals for listing secrecy provisions in a schedule to the FOIAct169

    5 REFORM OF SECRECY PROVISIONS

    A The grounds/or reformTo date most public debate about the reform of secrecy provisions in Australia

    and overseas has been focused on the general secrecy provisions of OfficialSecrets legislation in the United Kingdom and other Commonwealth countries,and on the Crimes Act in Australia. In the United Kingdom the "ancientblunderbuss"17o of the Official Secrets Act was the subject of substantialcriticism and proposals for reform by writers and official inquiries for over

    164 Air Navigation Act 1920 (Cth) s 27A; Agricultural and Veterinary Chemicals Act 1988(Cth) s 20(2).

    165 FOI Act 1982 (Cth) s 3.166 FOI Act 1982 (Cth) s 23(1).167 FOI Act 1982 (Cth) s 92.168 P Bayne. supra n 81. 163.169 Senate Standing Committee on Legal and Constitutional Affairs. Report on Operation of

    FOI Legislation (1987) para 12.31; Government response 1 June 1989. Journals of theSenate No 163 p 1776.

    170 Franks Committee Report. supra n 102. 42.

  • 1990] Secrecy Provisions in Commonwealth Legislation 71

    twenty years prior to the enactment of the new Official Secrets Act 1989.Refonn was blocked by a combination of those who considered the legislationwith all its faults should remain as a catch-all deterrent and those who feared theenactment of more specific legislation will lead to increased preparedness toprosecute, particularly prosecutions against the press.171

    In Australia there have been various proposals for reform of the Crimes Actgeneral secrecy provisions. The recommendations for reform made by theminority Report of the RCAGA and the Senate Standing committee172 wereprompted by a perceived inconsistency between general legislation imposing ablanket of secrecy on all government information and legislation creating rightsof access to that information. More recently the Gibbs Committee's proposalsfor reform of the Crimes Act secrecy provisions have been criticised as toolimited and inadequate in the protection proposed for disclosures in the publicinterest)73 The Crimes Act provisions were originally passed, like the UnitedKingdom Official Secrets Act, in time of war174 when "espionage was at theforefront of all parliamentary discussion and it was agreed that the legislationshould be drawn widely so as to encourage the care of official secrets and todiscourage all forms of spying and prying into the realm of official secrecy" .175The ill-considered nature of the original legislation has become more apparent inrecent years with initiatives to open government to public scrutiny. The need forAustralian compliance with international human rights obligations has alsoprompted calls for reform of the Crimes Act secrecy provisions. In 1983 theHuman Rights Commission176 found that s 70 of the Crimes Act breachedArticle 19 of the International Covenant on Civil and Political Rights whichguarantees the individual's right of free expression. The Commissionrecommended that s 70 be amended to limit its operation to restrictionsnecessary for the protection of national security, public order, public health ormorals or to protect the rights or reputations of others.

    Despite the various calls for reform of the Crimes Act secrecy provisions, theyhave not been substantially amended since 1960. The provisions have not beenthe subject of the same level of public controversy as equivalent provisions inother countries. The fust reason for this is that prosecutions under the CrimesAct secrecy provisions have been rarel77 and they generally have not had thepolitical overtones that prosecutions in other countries have had. 178 The second

    171 See generally A May and H Rowan, Inside InformlJtion (1982).172 Gibbs Committee Report, supra n 7, 53-55; NSW Law Society Journal (September 1989)

    61; Australian Accountant (October 89) 38.173 Minority Report Appendix 2A, supra n 7, 54-56, Senate Committee Report, supra n 3,

    238-243.174 See Crimes Bill 1914, H Reps Deb, 1914 Vol 75, 260-270 (21 October 1914); Sen Deb

    1914 Vol 75, 374-361 (21 October 1914); see also Coxsedge, Caldicutt and Harant,supra n 36, 20.

    175 D Williams, supra n 9, 38; Franks Committee Report, supra n 102, Ch 4.176 Review of Crimes Act 1914 and other crimes legislation of the Commonwealth (1983) 7.171 See reported instances: Grant y Headland (1977) 17 ACTR 29; R y Pratt referred to by

    E Campbell and H Whitmore Freedom in Australia, supra n 6, 348; Senate CommitteeReport, 238; see also R y Tille'; Ex parte Newton (1969) 14 FLR 101; Sherlock yJacobsen (1983) 13 A1R 925; Australian Broadcasting Corporation y Cloran (1984) 57ALR 742; Cortu y R (1979) WAR 30.

    178 United Kingdom Official Secrets Act prosecutions see] Jacob "Some Reflections onGovernment Secrecy" [1974] PL 30; D Leigh, the Frontiers of Secrecy (1980) 230;

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    reason is that lack of refonn of the Crimes Act secrecy provision in Australia hasnot proved to be an impediment to the enactment of Freedom of Informationlegislation.

    In 1960 the then Attorney-General, Sir Garfield Barwick, acknowledged thatthe worth of the Crimes Act secrecy provisions is measured by governments notin the number of prosecutions, which are few, but in their deterrence value.179But, as the Franks Committee180 concluded, for the criminal law to operate morewidely than is strictly required is a serious evil in itself. The criminal lawshould not be invoked except where there is a specific reason for giving itsspecial protection to particular information. The failure to acknowledge thisprinciple runs contrary to the theoretical role of the criminal law in society181 andcalls into question a government's right to expect the confidence and respect ofits employees:

    ...[the] code may amount to a concrete manifestation of the judgement of thecommunity on the central values which bind it together and serve notice on thecitizen of the limits of permissible behaviour within that society.182

    The Senate Committee183 observed that, while some CommonwealthGovernment information must be protected by criminal sanctions, they do nothave to be safeguarded by provisions of "unrestricted breadth and generality". Inthe United Kingdom and in New Zealand the Official Secrets Legislation hasbeen amended or repealed,l84 leaving more specific secrecy provisions in place.In Canada, Government inquiries have proposed changes to the Canadian OfficialSecrets Act to decriminalise the disclosure of government information undermany circumstances now covered by that legislation.l85

    The most unsatisfactory feature of many secrecy provisions is the scope ofinformation to which they apply. Some provisions cover any information, nomatter how innocuous, which an official may acquire in the course of his duties.These provisions expose an official is exposed to penal sanctions forcommunicating information that may already be public knowledge (for example,officially unannounced Cabinet decisions). The fact that a prosecution isunlikely to be initiated for disclosure of non-sensitive information is no answer.A person's potential liability to prosecution should be precisely stated in

    D Wilson, The Secrets File (1984) 147; D Winder, "Little Known British Tradition-Secrecy", Christian Science Monitor 17.

    179 Second Reading Speech of Crimes Bill, H Reps Deb 1960, Vol 28, 1020 (8 September1960); also ALRC Discussion Paper No 8: Privacy and the Census (1979) para 41.

    180 Franks Committee Report, supra n 102, 15.181 A Bates, T Buddin, P Meure, The System of Criminal Law (1979) Ch 1; P Gillies.

    Criminal Law (1985) Ch 1; Hon Justice Mitchell. The Web of Criminal LAw (ABCBoyer Lecturer 1975).

    182 D A Thomas. "Fonn and Function in Criminal Law" in P R Glazebrook (ed). Reshapingthe Criminal Law (1978) 21.

    183 Senate Committee Report, supra n 3. 237.184 Official Infonnation Act 1982 s 51 (NZ); see also Committee of Official Infonnation.

    Supplementary Report: Towards Open Government (hereafter referred to as the DanksCommittee Supplementary Report) (1981) paras 5.36-5.63; Official Secrets Act 1989(UK).

    185 Commission of Inquiry concerning certain activities of the Royal Canadian MountedPolice. First Report: Security and Information (1979) 25; Report of the Commissionon Freedom of Infonnation and Individual Privacy: Public GovernlMnI for Private People(1980); Ontario Law Refonn Commission Report on Political Activity: Public COmtMnIand Disclosure by Crown Employees (1986) 155.

  • 1990] Secrecy Provisions in Commonwealth Legislation 73

    legislation, not left as a matter of discretion to prosecuting authorities.Uncertainty in operation, as the Franks Committee observed, is one of the majorfaults of official secrets legislation: "people are not sure what it means or how itoperates in practice or what kinds of action involve a real risk of prosecution".186

    It might be argued that the Australian Crimes Act provisions are more limitedthan the equivalent provisions of the United Kingdom Official Secrets Act asthey include a requirement that unauthorised disclosure be shown to have been inbreach of a duty not to disclose or a duty to keep secret However this appears tohave brought no greater level of certainty to the provision. The obscure natureof the duties was the subject of criticism when the Crimes Act was firstenacted187 and has been put forward by prosecuting authorities as one reason fortheir failure to prosecute possible breaches.188 The liability of an official topenalties under s 70 and 79(3) of the Crimes Act is subject to the exercise ofdiscretion by his or her superiors in determining whether to authorise disclosureof particular information and by prosecution authorities in determining whetherto initiate proceedings. The qualification allowing authorised disclosureintroduces the notion of discretionary secrecy - the liability of individuals tocriminal penalties being regulated not by criteria approved by Parliament butaccording to the opinion of senior officials. In Australia the provisions of theFreedom of Information Act 1982 specify the grounds on which officials canrefuse to permit public disclosure of government information. However, themajority of secrecy provisions remain as grounds for exemption under s 38 ofthe FOI Act. Discretionary secrecy under these provisions remains the norm.

    In the United Kingdom the Franks Committee189 observed that the Attorney-General's discretion to prosecute for breaches of the Official Secrets Act was inpractice the only thing which saved that Act from absurdity. But this "safetynet" was the subject of some public unease for the inevitably selective way itwas exercised. The same unease has been felt in Australia, most recently inrelation to an alleged breach of s 79 of the Crimes Act by a Minister during theCombe/Ivanov affair.t90 In that instance the Commonwealth Attorney-Generalcame under strong political attack for his decision not to prosecute. His decisionwas based on the obscurity of s 79 of the Crimes Act, the availability of othertraditional political sanctions and the absence of damage to national security.191The "safety-net" of the Attorney-General's discretion exists only in relation toprosecutions under s 79 of the Crimes Act. The Senate Committee Report192recommended that the power to institute proceedings under s 70 of the CrimesAct, which is available to any person193 be limited to the Attorney-General.

    186 Franks Committee Report, supra n 102, 80; see also ALRC Repor:t Privacy: Summaryof the Report (1983) 26.

    187 See debates on the Crimes Bill 1914, supra n 174.188 See Attorney-Genera!'s opinion, supra n IS, 3616.189 Franks Committee Report, supra n 102, 20; see also A F Wilcox, The Decision to

    Prosecute (1912) 24-21; D Williams, supra n 9, 101; J Aitken, supra n 31, 70.190 See Royal Commission on Australia's Security and Intelligence Agencies, Report on

    Tenn of Reference (c), (December 1983) Ch 7: Disclosures; Sen Deb 1983 Vol 101,3601-3622 (9 December 1983); H Reps Deb 1983, Vol 134, 3250-3354 (6 December1983).

    191 See the Attorney-General's opinion, supra n 15, 3616.192 Franks Committee Report, supra n 102, 243.193 Crimes Act 1914 (Cth) s 13.

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    However it could be argued that in the case of unauthorised disclosures by publicservants the Attorney-General is probably best placed to determine whether non-criminal sanctions are more appropriate than prosecution under a secrecyprovision. The Attorney-General is answerable to Parliament for his decisions incontroversial cases.

    Secrecy provisions may impede proper public scrutiny of the actions ofgovernment officials. In 1979 the Royal Commission on the activities of theFederated Ship Painters and Dockers Federation found that secrecy provisions inCommonwealth taxation legislation were responsible for hiding gross publicservice incompetence.t94 Secrecy provisions have also been found to haveprevented proper public participation in decision-making in the area ofenvironment protection.19S They have also prevented public disclosure of theCommonwealth Ombudsman's fmdings in certain investigations.t96

    More generally secrecy provisions may conflict with the pursuit of opengovernment by unnecessarily attaching criminal penalties to all unauthoriseddisclosures. The Senate Committee197 observed that "In theory, and certainly inthe mind of the public, it is implausible to enact a presumption of opennesswhile leaving untouched provisions like s 70 [of the Crimes Act] that providethe legal foundation for the system of discretionary secrecy". The fact thatunauthorised disclosure of non-sensitive information is subject to criminalpenalties is a powerful force in shaping official attitudes to the secrecy ofgovernment information generally.198 As Williams199 observes, official secretslegislation serves to "encourage timidity in the handling of official informationwhich in the end deprives an administration of the scrutiny and criticismnecessary for efficiency and responsibility". Although few prosecutions takeplace under the secrecy provisions of the Crimes Act, guidelines issued toCommonwealth public servants specifically draw attention to the Crimes Actpenalties for any unauthorised disclosure.2oo In addition a large number ofCommonwealth Acts continue to provide for public servants to swear oaths ofsecrecy which, even if they do not have the force of law, must continue toreinforce this atmosphere of unnecessary secrecy. In Canada a recent Governmentrev