Recent publications by law reform bodies worldwide

AuthorJohn Danaher - Verona Ní Dhrisceoil
PositionPhD Candidate, IRCHSS Scholar, University College Cork - BCL GA, LLM (NUI), PhD Candidate (NUI), Higher Education Authority Scholar
Judicial Studies Institute Journal [2009:2
A. Australia
Secrecy Laws
Discussion Paper 74
June 2009
The Australian Law Reform Commission (ALRC) is
currently undertaking a major review of the federal secrecy laws.
“Secrecy law” is a general term used to describe any law that
prohibits (or limits) the disclosure, copying, usage, obtainment or
solicitation of information gathered and used by government
agencies. The ALRC has identified 507 such provisions, spread
across 175 different statutes. This discussion paper offers many
tentative proposals for reform in this area.
The focus of the proposals is threefold. First, to provide a
principled basis for the introduction of a revised general secrecy
offence. Second, to set down criteria for the review of specific
secrecy provisions. And third, to set down criteria for revised
adminstrative and penalty structures that will foster effective
information-handling in the public sector.
Chapter 6 of the Paper contains the proposal for a revised
general secrecy offence. This will make it an offence to disclose
protected information, provided that the prosecution can prove
that the disclosure caused, or was intended to cause, harm to
specified public interests. Chapter 7 considers which public
interests should be included within the terms of the offence.
PhD Candidate, IRCHSS Scholar, University College Cork.
BCL GA, LLM (NUI), PhD Candidate (NUI), Higher Education Authority
2009] Law Reform Update 205
Chapter 8 considers the various elements of the proposed offence,
and Chapter 9 considers potential exceptions and defences. In
particular, it suggests that any proposed reforms in this area be
linked to provisions in public interest disclosure
(or “whistleblower”) legislation.
Chapters 10-12 consider existing secrecy offences. It is
suggested that these will need to be made consistent with the
proposed general secrecy offence. This will involve careful
examination of the elements of the offences, the punishments that
apply, and the potential for unnecessary replication of offences.
Chapters 13-15 focus on the administrative secrecy
framework. Chapter 13 looks at the obligations of those working
in the Australian Public Service. It suggests that these obligations
need to be clarified and consolidated. Chapter 14 proposes
models for harmonising the secrecy regimes across different
federal bodies, such as the police force and the defence force.
It also considers mechanisms for regulating the conduct of those
private sector workers who may be contracted by the federal
government. Chapter 15 considers the overall effectiveness of
these administrative regimes in contributing to compliance with
secrecy laws. In doing so, it looks at the potential role of
independent oversight bodies.
Royal Commissions and Official Inquiries
Discussion Paper 75
August 2009
Royal Commissions are non-judicial, non-administrative
institutions of inquiry. They are used to inquire into matters that it
would be inappropriate to leave to the traditional branches of
government. This would include investigations into government
corruption and also investigations into the future shape of public
policy. The legislation governing the setting-up of Royal
Commissions dates back to 1902. This is the first major review of
the system.
A primary concern for this review is the continued
feasibility of the Royal Commission system. It is suggested that
new forms of public inquiry are needed to cover specific subject
Judicial Studies Institute Journal [2009:2
matters. This discussion paper offers some tentative proposals for
reform in this area.
Part B of the Paper contains the core of the proposed
reforms. It sets out a new statutory framework for public
inquiries. In conversations with relevant stakeholders, the ALRC
discovered that there was overwhelming support for the continued
existence of the Royal Commissions. Thus, instead of abolishing
them, the proposal is to introduce a new two-tier system for
public inquiries. The first tier would consist of Royal
Commissions, while the second tier would consist of Official
Inquiries. This would involve the amendment of the existing
Royal Commissions Act, as well as its renaming as the Inquiries
Act. The two types of inquiry will differ in their establishment,
jurisdiction and powers. Here are some examples of those
differences: (1) a Royal Commission will have to be established
by the Governor-General of Australia, an Official Inquiry will be
established by the relevant minister; (2) a Royal Commission will
inquire into matters of substantial public interest an Official
Inquiry will look into matters of public interest; (3) A Royal
Commission will have the power to abrogate the privilege against
self-incrimination, an Official Inquiry will not; and (4) a Royal
Commission will have a broad range of coercive powers available
to it, an Official Inquiry will have a narrower range of such
Part C of the Paper looks at the funding and costs involved
in both types of inquiry. Part D considers, in more detail, the
specific powers conferred on the respective types of inquiry, as
well as the protections afforded to those who are involved.

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