Recent publications by law reform bodies worldwide

AuthorJohn Danaher - Verona Ní Dhrisceoil
PositionPhD Candidate, Government of Ireland Scholar, IRCHSS Scholar, University College Cork - BCL GA, LLM (NUI), PhD Candidate (NUI), Higher Education Authority Scholar
Judicial Studies Institute Journal [2009:1
A. Australia
Review of Secrecy Laws
Issues Paper no. 34
December 2008
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
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
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
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
Judicial Studies Institute Journal [2009:1
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,

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