Kicking at the cornerstone of democracy The State of Press Freedom in Australia 2012
SECRECY “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations.”6 Addressing the National Information Law Conference in Canberra in March 2011, Justice Susan Kenny, a part-time commissioner with the Australian Law Reform Commission (ALRC) quoted these famous lines from James Madison, often referred to as one of the fathers of the United States’ Constitution, to underline the need for reform of Australia’s plethora of secrecy laws. Justice Kenny said: “Secrecy provisions deprive citizens of the information created, collected or received by the Commonwealth on their behalf. They also curtail the freedom of expression of those who have that information.”
ALRC: Reform is overdue It is now nearly four years since the ALRC was asked by former attorney-general, Robert McClelland, to conduct a review of secrecy laws in Australia, a move which resulted in the tabling in federal parliament of a comprehensive report, Secrecy Laws and Open Government in Australia, in March 20107. That review of secrecy provisions identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences – an over-reliance on criminal sanctions. The review also highlighted a range of inconsistencies relating to those secrecy provisions, depending on when they were drafted and by whom. For example, the unauthorised disclosure of information relating to the affairs of a person in some cases attracts a low-level fine of $550 and in others a term of imprisonment for two years and a fine of $13,200. Disclosing information about the identity of a person in the national witness protection program carries a maximum penalty of 10 years in prison, but publishing information that discloses the identity of an agent or officer of the Australian Security Intelligence Organisation carries a maximum penalty of imprisonment for one year – even in circumstances where such publication could endanger the life of that agent or officer. The ALRC report carried more than 60 recommendations, including the repeal of the secrecy provisions in the Crimes Act 1914 (Cth) to be replaced with a general secrecy offence limited to disclosures that clearly harm the public interest. The matters were covered in detail in the Media Alliance press freedom report, Public Good, Private Matters: The State of Press Freedom in Australia, 20118 However there has yet to be any indication that the federal government has plans to implement the ALRC’s recommendations.
Changing attitudes to government secrecy In his Asialink Essay, published in January 2011 by the University of Melbourne, respected former Australian diplomat John McCarthy charted the changing attitudes to government secrecy in the Western world, from the closed system resulting from World War II and the paranoia of the Cold War era to the “new information world” created by the rise of the internet.9 Using the reaction to the WikiLeaks dump of 250,000 diplomatic cables as an example, McCarthy charts a “widening gulf between official and community attitudes” towards the availability of information. His prediction is that, ironically, the effect of the WikiLeaks affair will be “towards less rather than more openness”. More information will be kept out of the central communications system, more important discussions will be conducted (“rather comically in this age”) by telephone rather than on email. McCarthy puts this down to both a fear of leaks and of Freedom of Information (FoI) laws. “This climate of inhibition is not in the national interest. A good policy requires all sensible points of view to be reflected, representing different foreign policy and domestic interests… Over the longer term, the test in Australia will be to create an internal culture where greater openness is seen as the avenue to better policy – albeit at the cost of the occasional leak or the odd embarrassing FoI release.” McCarthy concludes that there is a generational shift at work, something also highlighted by community attitudes towards WikiLeaks, whose supporters tended to be younger. He urges an attitudinal change within government to promote a disposition towards freer debate: “It behoves governments in democratic countries to go with the flow and begin to embrace the current towards greater openness with more vigour,” he concludes.
Published on May 3, 2012