Lifting the veil of secrecy:

The Australian Law Reform Commission Issues Paper 34: Review of Secrecy Laws (the Issues Paper) identifies four main axes across which tensions between the often competing public interests in maintaining the secrecy of government information and in transparent government are concentrated: legislative restrictions; the implied right of freedom of communication on government and political matters; the equitable duty of confidentiality and the common law duty of fidelity; and claims of public interest immunity. The application of criminal sanctions under secrecy laws should be determined not by reference to broad categories of information, classes of documents, or agencies of origin, but by the nature of the information at stake, and the potential, if any, for its release to damage vital public interests. There should be an overriding public interest test, in which the need to protect government information is balanced against the general public interest in open and transparent government. Principles developed under the equitable duty of confidence should be regarded as the touchstone for principled protection of government information. The general duty upon Commonwealth officers not to disclose government information should not be located in delegated legislation, and section 70 of the Crimes Act 1914 (Cth) (the Crimes Act), which presently imposes criminal liability for disclosure of any official information by government officers, should be repealed.Section 79 of the Crimes Act imposes separate criminal liability for disclosure of official secrets. It substantially overlaps with subsection 91.1(1) of the Criminal Code , which deals with espionage and related activities. PIAC believes that at least to the extent of any overlap, section 79 should also be repealed.