Recent publications by law reform bodies worldwide

• Author: John Danaher - Verona Ní Dhrisceoil
• Position: PhD Candidate, Government of Ireland Scholar, IRCHSS Scholar, University College Cork - BCL GA, LLM (NUI), PhD Candidate (NUI), Higher Education Authority Scholar
• Pages: 130-177

Judicial Studies Institute Journal [2009:1

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RECENT PUBLICATIONS BY LAW

REFORM BODIES WORLDWIDE

COMPILED BY

JOHN DANAHER AND VERONA NÍ DHRISCEOIL†

A. Australia

Review of Secrecy Laws

Issues Paper no. 34

December 2008

http://www.austlii.edu.au/au/other/alrc/publications/issues/34/

In response to a reference from the Attorney General of

Australia, the Australian Law Reform Commission (ALRC) is

undertaking a major review of Australia’s federal secrecy laws.

This Issues Paper is the first step in the review process. It is

designed to begin a national discussion on the most appropriate

legal framework for 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 450 such provisions, covering a broad

swathe of the federal statute book.

Secrecy laws are never absolute: the collection and

disclosure of information is essential to the smooth and efficient

operation of government. For example, in order to properly

combat crime, various government agencies must be able to share

information. In other areas, information may need to be shared

with the private sector. It is also necessary for a modern

democratic government to be as open and accountable as

possible, while ensuring that citizens’ personal information is

protected from unnecessary disclosures. A key goal for this

_____________________________________________________

 PhD Candidate, Government of Ireland Scholar, IRCHSS Scholar, University

College Cork.

† BCL GA, LLM (NUI), PhD Candidate (NUI), Higher Education Authority

Scholar.

2009] Law Reform Update 131

review is to strike the appropriate balance between competing

public interests; the foremost balancing exercise being between

the need for secrecy to protect citizens’ rights and to effectively

combat crime (particularly terrorism), and the need for an open

and accountable government. It is clear that the spectre of 9/11

looms large in the Paper.

As this is an Issues Paper, no concrete proposals for reform

are offered. Instead, the key questions for future reform are set

forth. At present, secrecy laws in Australia apply to a wide variety

of individuals employed or contracted by the federal and state

governments. A breach of a secrecy law is usually deemed to be a

criminal offence of some type. Sanctions imposed range from

small fines to imprisonment; administrative penalties are

applicable in some instances. Numerous exceptions and defences

are also in existence.

One major question for the review is whether there is a

need for secrecy laws at all. There is a suggestion that the

interests at stake are already protected by other areas of the law,

such as privacy and freedom of information. However, if the

continued existence of secrecy laws is accepted, the question is

what form they should take, and the sanctions they should

impose. The ALRC specifically raises the question as to whether

civil, as opposed to criminal, sanctions should play a greater role

in this area; and also whether there is a need for a whistleblowers’

charter to protect those who disclose information in the public

interest. This latter question is being considered in a more general

context by a committee in the Australian House of

Representatives.

A discussion paper dealing with this topic is due to be

published in May 2009, and a final report is due in October 2009.

Review of the Review of the Royal Commissions Act

Issues Paper no. 35

April 2009

http://www.alrc.gov.au/inquiries/current/royal-commissions/

In response to a reference from the Attorney General of

Australia, the Australian Law Reform Commission (ALRC) is

considering the need to reform the legislative framework for

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public inquiries. This necessitates an investigation into the

provisions and operation of the Royal Commissions Act, 1902.

Royal Commissions are the highest form of public inquiry

in Australia. Whenever a controversial issue arises which is felt to

be incapable of appropriate consideration by the traditional

branches of government, there is usually a call for the

establishment of a Royal Commission. They are not just used to

investigate alleged corruption or wrongdoing; they are also used

to inquire into the functioning of industry or the shape of public

policy. They are designed to be public in nature, and independent

from government. They also have considerable fact-finding

powers at their disposal, but their determinations can only ever be

advisory in nature.

Despite the generally high regard for Royal Commissions,

concerns have been expressed in recent years about their costs,

and the antiquated nature of the 1902 Act. Consequently, one of

the major purposes of this Review is to consider whether a more

modern and flexible system of public inquiry can be placed on a

legislative footing. Forms of inquiry alternative to Royal

Commissions are presently in existence, but they are usually

created on an ad hoc basis.

As this is an Issues Paper, no concrete proposals for reform

are offered; instead, the focus is on the major questions that future

reforms would need to address. Foremost among these is the fate

of the 1902 Act. The ALRC suggests that it could be either:

(i) repealed and replaced by a general statute that allows for the

creation of a variety of public inquiries; or (ii) retained while a

new general statute is introduced to provide for the establishment

of different types of public inquiry – this new act would then exist

alongside the 1902 Act. The Commission is agnostic as to the

desired resolution, and is willing to entertain alternative schemes.

After addressing the major question about the fate of the

Royal Commissions, the next set of questions will concern the

operation of any alternative forms of public inquiry. In particular,

the following will need to be determined: what coercive powers

should be at their disposal; the rights and duties of witnesses

appearing before them; whether they should be entitled to impose

sanctions and penalties; the reviewability of their decisions; and,