Secrecy Provisions in Commonwealth Legislation
| Author | John McGinness |
| Published date | 01 March 1990 |
| Date | 01 March 1990 |
| DOI | http://doi.org/10.1177/0067205X9001900103 |
| Published By | Sage Publications, Inc. |
| Subject Matter | Article |
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"!
1INTRODUCTION
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 1901.2Early
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 areflection
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 astatute
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 Territories6and 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 MPubL, Principal Legal Officer, Family
Law
Branch, Commonwealth Attomey-
General.
WHardcastle, "Press Freedom",
The
Listener. 7December
1967
quoted
by
D Williams.
"Official Secrecy in England" (1968) 3FL Rev 20. 34.
Post and Telegraph Act 1901.
ss
9and 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); ECampbell and HWhitmore,
Freedom in Australia (1973. 347-348; the Senate Committee Report,
supra
n6.
Appendix 6.
50 Federal
Law
Review
[VOLUME
9
and academic writers.7Their attitudes
to
secrecy provisions have varied because
each
has
approached the topic
in
the course ofdealing
with
the wider subjects
of
public access
to
government infonnation, privacy protection, national security,
investigation
of
organised crime, refonn of Commonwealth criminal law or the
application
of
the laws ofevidence by the Courts. Secrecy provisions have never
been reviewed as asingle consistent subject matter in Australia. Given the
haphazard
way
in which these provisions have been enacted, and their importance
in regulating the flow
of
infonnation within government and
to
the public, such
areview
is
now appropriate. The recent reform of official secrets legislation
in
Britain8
may
also re-awaken interest
in
refonn
of
secrecy provisions in Australia.
For the purpose
of
reviewing the operation
of
secrecy provisions in
Commonwealth legislation, anumber of categories need
to
be considered. These
are secrecy provisions
(1)
of
ageneral nature, such as those found in the sections
70
and 79
of
the
Crimes 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.
AGeneral Secrecy Provisions
From
an
early date the Crimes Act
1914
(Cth) established afmn approach in
totally prohibiting the unauthorised disclosure
of
official infonnation. Section
70(1)
provides:
Aperson who, being aCommonwealth 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, by
virtue
of
being aCommonwealth officer, and which
it
is his duty
not
to
disclose, shall be guilty
of
an offence.
7
8
Report
of
the Royal Commission on Australian Government Administration (1976) paras
10.7.19-10.7.23, Appendices 2A, 2B, 4K, (hereafter referred to as the RCAGA); P
Munro and JMcMillan, Freedom
of
Information, the RCAGA Report, Appendix 2A
(hereafter referred to as the RCAGA Minority Report); Royal Commission on
Intelligence and Security (1977) 4th Report Vol 2Appendix 4E; Royal Commission on
the 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 Royal
Commission); Office
of
Special Prosecutor, Annual Report (1982/1983) Chs 10, 11, 12,
15; Special Prosecutor Redlich Annual Report (1983-1984) para 5.67; Senate
Committee Report, supra n3, Ch 21; Senate Standing Committee on Regulations and
Ordinances Report disallowed by effluxion of time (1986); Report
of
the Joint Select
Committee on an Australia Card (1986) Ch 2; Report
of
the Inter Departmental
Committee on policy proposals for Freedom
of
Information legislation (1976) s12;
Human Rights Commission Report: Review
of
the Crimes Act 1914 and other Crimes
legislation
of
the Commonwealth (1983) 7; ALRC Report: Privacy,
supra
n6, paras
798-803, 937-952; Review
of
Commonwealth Criminal Law Discussion Paper
No
20:
Disclosure
of
official information (1988) (hereafter referred to
as
the Gibbs Committee
Report).
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
public
officers.
It
appears in
Part
VI
of
the Crimes Act (offences
by
and
against public
officers)
not
in
Part
VII (espionage
and
official secrets). Section
70
does
not
originate
in
the
United
Kingdom
Official
Secrets
Act
but
in s
86
of
the
Queensland Criminal
Code
1889, the
fust
criminal
code
in
Australia.9
The
Commonwealth equivalent to the notorious s 2
of
the United Kingdom Official
Secrets
Act
1911 is found in s79(3)
of
the Crimes Act which provides:
79(3)
If
aperson communicates aprescribed sketch, plan, photograph, model,
cipher, note, document or article, or prescribed information,
to
aperson,
other than -
(a) aperson to whom he is authorized to communicate it; or
(b) aperson to whom it is, in the interest
of
the Commonwealth or apart
of
the Queen's dominions, his duty to communicate it, or permits aperson,
other than aperson 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 s79(1) to include any infonnation obtained
by aCommonwealth officer
or
person holding office under the Queen which:
"by reason
of
its nature or the circumstances under which it was entrusted
to
him
or it was made or obtained by him or for any other reason, it is his duty
to
treat
it
as
secret"
It
is apparent that ss
70
and
79(3), although historically different in origin,
overlap
to
asubstantial degree.
They
both prohibit the disclosure
of
any
information acquired
by
an official in the course
of
his duties.
There
are
more than
50
provisions in Commonwealth Acts and regulations
which, like ss
70
and 79(3), prohibit the disclosure by an official
of
any
kind
of
information which he has acquired in the course
of
his duties.
The
Australian
Law
Reform
Commission
identified the purpose
of
these provisions
as
the
preservation
of
the secrecy
of
government operations in the
belief
that they
might
thereby
be
more
effective.l
0In Kavvadias vCommonwealth
Ombudsman
11
the Federal Court identified their primary purpose as the discipline
or
integrity
of
officers
and
said that in fulfilling this wider purpose they meet a
perceived need to preserve the secrecy
of
government operations in order for
government
to
function effectively.
When general secrecy provisions are relied on by government officials to resist
disclosure
of
information in litigation, the Courts have acknowledged that the
provisions have avery 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
asecret.
12
The
provisions
9Attorney-General's second reading speech on the introduction of the Crimes Bill 1914, H
Reps Deb 1914, Vol 15, 265; the first
UK
Official Secrets Act, enacted in the same year
as the Queensland Criminal Code 1889, had been under consideration for many years:
see generally DWilliams, Not in the Public Interest (1965) Ch 1; see also Royal
Commission Criminal Code Report, Qld ParI Papers 38-1899.
10 ALRC Report: Privacy, supra n6, Vol 2, para 1319.
11
(1984) 52 ALR 728; (see also News Corporation vNCSC (1984) 52 ALR 211.)
12
RyClarlcson [1982] VR 522, 521; diwlging includes incorporating infonnation in a
document and supplying
it
to another person: Canadian Pacific Tobacco Co
Ltd
v
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