The government agrees Australia’s secrecy laws need to change. Now comes the hard part – taking action

Earlier this year, the Independent National Security Legislation Monitor (INSLM), Jake Blight, compared the sheer volume of Australia’s secrecy laws to works of literature.

“You’d be looking at about 3,000-plus pages. That’s about the same as the complete works of William Shakespeare, War and Peace, and the three volumes of the Lord of the Rings – added together,” he told the ABC.

Of course, secrecy laws are necessary in an increasingly dangerous world. And since the September 11 2001 attacks, Australia has passed more than any other country on Earth – more than 90 by a 2021 count (though the number is now closer to 100).

But as Blight went on to point out, when these laws also smother the transparency that legitimate whistleblowing and investigative journalism bring to a democracy, they can wind up damaging the very system they are designed to protect.

That is why Attorney General Mark Dreyfus’ announcement this week that he has accepted six of the INSLM’s 15 recommendations to reform Australia’s secrecy laws in full, and six others in part, is an important break from the direction of travel.

When classified information causes harm

In Blight’s review of the secrecy offences in the Criminal Code, some of those making submissions (including my own organisation, the Alliance for Journalists’ Freedom) argued that many of the laws are inconsistent with the rule of law and human rights principles.

Critics also argue the laws unnecessarily penalise legitimate whistleblowing and criminalise the very journalists, lawyers and activist groups that are essential to the effective functioning of our democracy.

As it stands, the law makes it an offence to “deal with” classified information – a phrase so broad that a journalist or lawyer cannot open an envelope containing a classified document without risking prison. The government has agreed that merely receiving information should not be an offence alone.

The law also assumes that if a document is stamped “classified”, it would be harmful if it were released. It is what the law describes as “deemed” harm.

Instead, the government has agreed that what matters is the actual harm that might be caused if a document is released, rather than the stamp at the top of it.

In his review, Blight agreed the current system of classifying documents depended on secret policies and anonymous public servants rather than the courts. He said, however, that should not form the basis for criminal prosecutions that could send people to prison for years.

He told journalists on Wednesday:

My concern is in taking a policy document and trying to enshrine it in the criminal law. Criminal laws need much more precision than a policy like that can provide.

‘The most extreme secrets’

Dreyfus also agreed to invite the Commonwealth Director of Public Prosecutions to revise the policy to consider press freedom when the office is dealing with journalists or publishers in cases involving classified documents.

But the government did not go as far as Blight had asked, particularly with regard to narrowing the scope of what is considered harmful information about intelligence agencies.

Currently, it is an offence to publish any information from an intelligence agency. Blight had recommended it be restricted to information about the data they handle, their operations, capabilities, technologies, methods and sources.

While Dreyfus agreed the scope of protected information is broad, he said Blight’s recommendation would “remove protections from categories of information which would cause harm if disclosed”.

Blight called that decision “unfortunate”.

Many of our intelligence agencies now do important work, but actually isn’t intelligence work, and I think our laws need to be tailored to that. Extreme secrecy should be focused only on the most extreme secrets.

Government lacking action

Broadly, though, Blight and other groups, including the Human Rights Law Centre and the Alliance for Journalists’ Freedom, have welcomed the government’s response as an important step towards improving transparency and press freedom.

But accepting the recommendations is not the same as implementing them. The government has a record of promising improvements in transparency, but falling short in terms of passing legislation.

In 2020, the parliament’s intelligence and security committee published a report into the impact of the law enforcement and intelligence agencies on the freedom of the press.

The report included 16 recommendations, and both the government and the opposition accepted 15 of them. Dreyfus, who was the shadow attorney general at the time, went even further. He described the recommendations as “the bare minimum”.

So far, five years on, only one has been implemented.