Recent publications by law reform bodies worldwide

• Author: John Danaher - Verona Ní Dhrisceoil
• Position: PhD Candidate, IRCHSS Scholar, University College Cork - BCL GA, LLM (NUI), PhD Candidate (NUI), Higher Education Authority Scholar
• Pages: 204-246

Judicial Studies Institute Journal [2009:2

204

RECENT PUBLICATIONS BY LAW

REFORM BODIES WORLDWIDE

COMPILED BY

JOHN DANAHER & VERONA NÍ DHRISCEOIL†

A. Australia

Secrecy Laws

Discussion Paper 74

June 2009

http://www.austlii.edu.au/au/other/alrc/publications/dp/74/

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

Scholar.

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

http://www.alrc.gov.au/inquiries/

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

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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

powers.

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.