December 2021 (a) Modernising the regulatory framework Secrecy constraints The Commission, as a government agency, is constrained by strict privacy (or ‘non disclosure’ obligations) set out in s 49 of the AHRC Act. Staff are prohibited from disclosing ‘any information relating to the affairs of another person’ acquired through the Commission’s operations, and are potentially subject to fines or imprisonment for breach.54 The Privacy Act 1988 (Cth) also imposes obligations in relation to the handling of personal information. Information may be revealed in a de-identified way. In 2009, the ALRC concluded a report into secrecy provisions in Commonwealth laws, Secrecy Laws and Open Government in Australia.55 Section 49 of the AHRC Act was identified as one of 358 provisions that imposed criminal sanctions.56 The ALRC concluded that specific secrecy offences should only be enacted where necessary to protect a public interest of sufficient importance to justify the imposition of a criminal sanction. The ALRC recommended that specific secrecy offences should be reviewed.57 The Commission considers that the conclusions of the ALRC support a review of s 49 of the AHRC Act to determine whether secrecy provisions with criminal sanctions are warranted and, if so, how such provisions may be moderated to ensure that information can be provided for educative purposes. Associate Professors Dominique Allen and Alysia Blackham identify the strict privacy constraints on the management of information, with criminal penalties ‘for an accidental or well-intentioned breach of an ambiguous provision’, as ‘inevitably [having] a chilling effect on the release of information’. At a minimum, then, the statutory confidentiality provisions should be reformed, to make it clear that deidentified information can be released, or to facilitate the release of information to researchers if they undertake to maintain confidentiality and only release information in a de-identified form. More generally, though, there is a need for serious review of whether these provisions are actually required, given agencies are already bound by privacy laws.58 This ‘chilling effect’ means that the information released may be limited. In his review of the Victorian legislation in 2008, Julian Gardner identified a ‘perceived reluctance’ on the part of the VEOHRC to use de-identified information because of a similar secrecy provision in its legislation. Gardner considered that information drawn from complaints, settlements and orders made by the Victorian Civil and Administrative Tribunal (VCAT) could assist ‘in the early settlement of disputes by providing the parties with indicative information that can guide their thinking’.59 He recommended that the secrecy provisions in the Act should be amended ‘so that it is clear [VEOHRC] can use de-identified information about cases for educational purposes’.60 106 FREE AND EQUAL An Australian Conversation on Human Rights