The Government has released its ‘Review into Secrecy Provisions’ whose fine print contains the greatest assault on democracy and accountability in many years, writes Rex Patrick.
Secrecy is woven into the fabric of the Australian Government. There are eleven general secrecy offences in the criminal code, 295 non-disclosure duties in 102 laws that attract criminal liability, and 569 specific secrecy offences in 183 laws.
A rationalisation and a review of secrecy laws was long overdue.
But buried in this review is a bombshell. Carried out by the Attorney-General’s Department, the review report makes a key recommendation that disclosure of information that could cause a loss of trust in Government should be criminalised.
Paragraph 146 states:
“… disclosure of information that harms the effective working of Government undermines the Australian community’s trust in government and the ability of Commonwealth departments and agencies to deliver policies and programs. It is appropriate that conduct which causes or is likely to cause prejudice to the effective working of government be covered [by secrecy provisions enforceable under the criminal code]”
The national security bureaucrats’ view seems to be that secrecy is essential to ensure trust in government!
The infamous character of Sir Humphrey Appleby in the Yes Minister TV show would be so proud.
If implemented, this recommendation would raise for public servants a criminal penalty for anything embarrassing, anything that might put a question in the way of policy information or even any wrongdoing by officials to the extent that revealing such might undermine confidence in government.
Review origins
The review stemmed from a report of the Parliamentary Joint Committee on Intelligence and Security looking into the 2019 ABC and the Smethurst media raids.
The review was intended to be the first step in a process that would ensure that these laws protect and are consistent with essential public interests, including the public interest in transparency in government decision-making, parliamentary scrutiny and accountability, and effective media investigations and reporting.
The recommendation of the Review that the Government create a new sweeping secrecy offence is quite at odds with the original objectives of this exercise, and is indeed quite contrary to proper principles of transparency, scrutiny and accountability of government.
While the review recommends the repeal of some redundant and outdated secrecy offences and non-disclosure duties, this very modest wind back of secrecy will be completely submerged by the development of “a new general secrecy offence” for inclusion in the Criminal Code Act 1995.
Protecting the leaders
To be clear, public servants already have a duty not to disclose information unless they are authorised to do so, or they are required/permitted to disclose it by law.
But it’s one thing to say that public servants should operate in a ‘privacy of government’ environment, it’s completely another thing to say that everything they discuss or write about is confidential and they should go to jail if they reveal anything.
Under the current ‘privacy of government’ arrangements, we are supposed to let the government quietly get on with business overseen by Parliament, the Auditor-General, the Ombudsman, the National Anti-Corruption Commission (NACC) and law enforcement, the Freedom of Information Regime and whistleblower protection.
This all sounds good; except the Parliament is very weak on oversight, the Auditor-General and Ombudsman are underfunded, the NACC operates in complete secrecy, the FOI regime is totally broken and whistleblower protections are simply non-existent.
Secrecy overreach
But even if the accountability of government systems did work, the Secrecy Review’s recommendation is overreach. It just re-enforces a culture of secrecy inside government that is already in need of a secrecy exorcism.
The much better view is that of former Sir Anthony Mason, AC KBE GBM KC in the High Court Case of Commonwealth v John Fairfax & Sons Ltd (“Defence Papers case“) [1980], before he was Chief Justice, when he said:
“It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Unless disclosure is likely to injure the public interest, it will not be protected.
His judicial pronouncement trumps the bureaucratic authors of a review that presses a recommendation that aims to protect senior leadership and ministers from embarrassment and the exposure of incompetence using the threat of criminal punishment. But his views only last until new laws are passed.
A captured Attorney General
The next question, of course, is whether the Attorney-General and the Government will act on this recommendation and remain beholden to his national security bureaucrats?
If his past record of betraying whistleblowers and his refusal to pursue Freedom of Information reforms is any guide, there aren’t any grounds for optimism.
Proceeding down this path would deal a great blow to democratic accountability and public interest journalism.
It would embed the already harmful secrecy culture that exists across a vast expanse of government activity and could also blow a hole in Australia’s already weak and failing FOI regime.
But does the Government and the Attorney General want a political fight over a move towards excessive and unjustified secrecy? We will have to see, but if they do go down this path it’s a fight they’re sure to get.
Mark Dreyfus, whistleblowers and the non-existent circumstances
Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.