Imagine receiving a summons from an integrity body, such as an anti-corruption commission or similar statutory investigative body. You are required to produce documents, answer questions, attend an interview and perhaps appear at a private hearing. You may also be told that you must not speak about it. You can tell your lawyer. You can sometimes tell a doctor or psychologist. Beyond that, you are expected to keep quiet, even about the fact that the process exists. For most people, this is not an abstract civics lesson. It is time off work, fear of misinterpretation, the strain of uncertainty and the moral discomfort of being obliged to say nothing while rumours and reputations move on.

Confidentiality in integrity work has an obvious and defensible purpose. Investigations can be derailed by premature disclosure. Witnesses can be pressured. Evidence can be tailored. Unfounded allegations can cause irreparable damage. A serious anti-corruption agency needs the capacity to compel information and, in tightly defined circumstances, to constrain its disclosure.

Australia has entered a new integrity era. The Commonwealth’s National Anti-Corruption Commission (NACC) is now operating, and integrity bodies more generally have expanded in role, visibility and day-to-day footprint across the federation. In that context, confidentiality directions and secrecy offences are no longer niche features of specialist investigations. They increasingly shape ordinary public administration, workplace governance and reputational risk. If these institutions are to retain legitimacy, their secrecy powers need to be governed with the same care as their coercive powers: by clear standards, periodic review and transparent accountability about duration.

The problem of indefinite confidentiality

But there is a design fault that Australia has not confronted with sufficient seriousness: confidentiality without a clock. When secrecy can persist without structured review points, without minimum standards of communication and without transparent reporting about duration, delay itself becomes a form of power. It is not merely administrative untidiness. It is a governance pathology. It corrodes trust in institutions that depend on trust for their legitimacy.

The NACC provides a useful illustration because it is now the national reference point. The NACC publicly explains that, unless a formal non-disclosure notation or direction applies, people can tell others about their contact with the Commission, including that they have been asked to provide information or attend an interview. Where a non-disclosure notation or direction does apply, the constraints become strict, and they are backed by criminal penalties. The NACC’s own witness guidance states that breaching a non-disclosure direction is an offence punishable by up to two years’ imprisonment, while also recognising narrow exceptions, including disclosure to a legal practitioner for advice and to a medical practitioner or psychologist for care. These are not minor administrative footnotes. They are coercive restraints on ordinary speech, justified by public interest aims, and therefore requiring disciplined governance.

The same structural point can be made across the federation. State integrity bodies typically carry secrecy provisions, sometimes broadly framed, sometimes coupled to particular powers or circumstances. The details differ, but the design family is recognisable: compelled cooperation, constrained disclosure and a heavy dependence on public trust.

Delay, asymmetry and the limits of the current design

The problem is not that such powers exist. The problem is what happens when secrecy interacts with institutional delay. Integrity bodies, state and federal, operate amid heavy demand, complex matters, contested narratives and finite resources. Investigations can take months, and sometimes much longer. If a person is subject to a strict confidentiality regime during that time, silence can become an extended condition of life. Even if the investigation is impeccably justified, the lived effect can be close to punishment by uncertainty. It is precisely here that administrative justice and human dignity intersect.

An additional asymmetry follows. The people most constrained by secrecy are least able to contribute to public scrutiny of timeliness or process. They cannot easily say, ‘this is taking too long’, or ‘there is a procedural confusion’, because the line between permissible general comment and impermissible disclosure is often unclear, and the penalties can be real. The agency, by contrast, can usually maintain institutional silence, sometimes for entirely proper reasons. The result is a closed loop in which drift is difficult to detect and, therefore, difficult to correct.

Australia already has the conceptual tools to do better. In its major report on secrecy laws and open government, the Australian Law Reform Commission insisted on a simple discipline: secrecy provisions, particularly those backed by criminal sanctions, should be necessary and proportionate to the protection of essential public interests. That logic has an obvious implication for integrity regimes. If secrecy is necessary, it should be designed to remain necessary, not merely to remain.

A second practical point concerns responsibility. Some of the safeguards described below require legislative amendment, particularly where confidentiality is created by statute or backed by criminal penalties. That is work for parliaments, informed by oversight bodies and parliamentary committees, and tested against the principles of necessity and proportionality.

Other improvements can be delivered more quickly through agency policy and service standards: scheduled review triggers, reasons recording, correspondence protocols and de-identified publication of time-to-decision metrics. The most credible package is therefore mixed: statutory discipline where liberty and speech are constrained, and disciplined administration where drift can be reduced without touching investigative substance.

A further essential safeguard is transparency: the governing rules, whether legislative provisions or agency policies and procedures, must be publicly available in clear form so that secrecy and timeliness settings can be scrutinised, debated and improved on the basis of evidence rather than assertion.

Introducing a clock: practical reforms

What would a ‘clock’ look like in practice, without weakening investigations?

First, time limits with renewal. A confidentiality direction should expire after a defined period unless affirmatively renewed on stated grounds, for example investigative prejudice, witness safety, fair trial concerns or serious reputational risk. Renewal should require recorded reasons. This is not bureaucratic theatre. It forces the decision maker to revisit necessity, rather than letting inertia substitute for judgement.

Second, a statutory duty of periodic review. Even where the original direction is sound, circumstances change. Witnesses are interviewed. Key documents are obtained. The risk of prejudice diminishes. A review duty creates an auditable trail, and it gives oversight bodies something concrete to examine.

Third, minimum service standards. Confidentiality need not entail administrative silence. At a minimum, those bound by secrecy should receive acknowledgement of correspondence, a clear contact point and periodic non-substantive updates, even if the only update is that the matter remains under consideration and confidentiality continues. These are modest measures, but they address a corrosive feature of secrecy regimes: the sense of being locked in a process with no recognised timelines.

Fourth, aggregated transparency. Integrity agencies should publish deidentified metrics about confidentiality, not case details. How many non-disclosure notations or confidentiality directions are active? How many have been in force for more than six months, twelve months, twenty-four months? What is the median duration? These are system-level facts. They assist Parliament, the media and civil society in assessing whether secrecy is being used as a scalpel or a blanket.

Fifth, a safe oversight pathway for process concerns. The Commonwealth has an Inspector of the NACC, an independent officer accountable to Parliament, designed to oversee the Commission. Oversight models vary across jurisdictions, but the principle is stable: there should be a channel to raise concerns about ongoing secrecy or delay without forcing disclosure of investigation content, and without requiring a person to gamble their liberty on what counts as ‘reasonable’ disclosure.

None of this is anti-integrity. It is pro-integrity. A watchdog that can compel answers should not rely on indefinite silence as a matter of convenience. Secrecy is most legitimate when it is bounded, revisited and explained at the level of general practice. That is also the best protection for investigators and witnesses, because it reduces the pressure for leaks, speculation and politicised inference.

If Australia wants strong integrity institutions, it should not settle for a simple binary, secrecy or openness. The better question is how to design confidentiality so that it protects investigations while respecting the ordinary moral claims of people who find themselves drawn into them. The answer begins with a clock.

Professor Michael Stuckey is a legal academic and governance practitioner with senior leadership experience in Australian higher education and public law. His work focuses on institutional design, administrative justice and integrity frameworks, with particular interest in how statutory powers operate in practice and how oversight settings can strengthen public confidence. He has held senior academic and governance roles, and has published and spoken on questions of law, regulatory design and public administration.

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