Official Secrets and the Gibbs Report: A Charter for Reform or a Tug of the Legal Forelock?

Abstract

The Final Report of the Review of Commonwealth Criminal Law chaired by the former Chief Justice of the High Court, Sir Harry Gibbs, was released in 1992. Part Five of the report recommends sweeping reforms to the law governing official secrets in Australia: "In brief, this part recommends that the UK 'Official Secrets Act' be broadly followed in so far as that Act limits the application of criminal sanctions to the unauthorised disclosure of a limited number of narrowly described categories of official information, subject in most cases to a requirement of proof by the prosecution of damage resulting from the disclosure." The report further recommends what it describes as significant modifications to the United Kingdom ("UK") model to avoid any unnecessary restrictions. However, a close examination of the proposals reveals a voluminous coverage of government information and a draconian charter for silencing dissenting voices both within and outside the public service. The tone and inspiration of the report clearly derives from the reinvigorated secrecy culture ascendant in official information matters in Britain in recent years, as exemplified by the 'Official Secrets Act' 1989 (UK). This legislation and the policies underlying it have been the subject of extensive and, at times, trenchant criticism.