Key points

• The Secrecy Provisions Amendment (Repealing Offences) Bill 2026 (Repeal Bill) responds to a number of recent reviews of Commonwealth secrecy laws, including the Australian Law Reform Commission’s ‘Secrecy Laws and Open Government in Australia’ report, the Attorney-General’s Department’s ‘Review of secrecy provisions: Final Report’, and the Independent National Security Legislation Monitor’s ‘Review of Part 5.6 of the Criminal Code Act 1995'
• Significant amendments include:
• introducing a new offence aimed at capturing improper use or communication of information by certain Commonwealth officials and persons with a relationship with the Commonwealth to obtain, or seek to obtain, a benefit or to cause detriment to a Commonwealth entity or other person
• repealing or removing criminal liability from more than 300 Commonwealth secrecy provisions, including repealing section 122.4 of the Criminal Code Act 1995(Criminal Code)
• legislating that the Attorney-General’s consent be sought before prosecuting a journalist or administrative staff member of an entity in the business of reporting news for secrecy offences
• The Secrecy Provisions Amendment (Sunsetting Provision) Bill 2026 will amend the Criminal Code to extend the sunsetting date of section 122.4 by six months from
  29 June 2026 to 29 December 2026.
• The Senate has referred the Secrecy Provisions Amendment (Repealing Offences) Bill 2026 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 19 June 2026.

Introductory Info

Date of introduction: 1 April 2026
House introduced in: House of Representatives
Portfolio: Attorney-General
Commencement: the day after Royal Assent

Purpose of the Bill

The purpose of the Secrecy Provisions Amendment (Repealing Offences) Bill 2026 (Repeal Bill)  is to respond to a number of recent reviews of Commonwealth secrecy laws. These include the Australian Law Reform Commission’s ‘Secrecy Laws and Open Government in Australia’ report, the Attorney-General’s Department’s ‘Review of secrecy provisions: Final Report’, and the Independent National Security Legislation Monitor’s ‘Review of Part 5.6 of the Criminal Code Act 1995’.

The Repeal Bill will amend the Criminal Code Act 1995 (Criminal Code) and other Commonwealth Acts to:

• introduce a new offence capturing improper use or communication of information by certain Commonwealth officials and persons with a relationship with the Commonwealth to obtain, or seek to obtain, a benefit or to cause detriment to a Commonwealth entity or other person
• repeal or remove criminal liability from more than 300 Commonwealth secrecy provisions, including repealing section 122.4 of the Criminal Code
• legislate that the Attorney-General’s consent be sought before prosecuting a journalist or administrative staff member of an entity in the business of reporting news for secrecy offences (unless otherwise prescribed by regulations)
• amend the secrecy offences in Part 5.6 of the Criminal Code to implement the Government’s response to recommendations 1, 5-12 and 14 of the INSLM Secrecy Review.

The Secrecy Provisions Amendment (Sunsetting Provision) Bill 2026 (the Sunsetting Bill) will amend the Criminal Code to extend the sunsetting date of section 122.4 by six months, from 29 June 2026 to 29 December 2026.

Background

Commonwealth secrecy laws

Commonwealth legislation contains numerous secrecy provisions that prohibit the disclosure of sensitive information held by government. While secrecy laws mainly apply to current and former Commonwealth officers and service providers, they can also apply to members of the public, including journalists.

According to the Attorney-General’s Department (AGD):

Secrecy laws exist to prevent harm to essential public interests such as national security. They give assurance to people and entities who provide information to the Commonwealth that their information will be treated confidentially. The need for secrecy laws is considered alongside the public interest in open and accountable government, which is fundamental to our democratic system.

Despite the large number of secrecy offences, few have been used in prosecutions:

According to AGD, in the almost 40 years between 1985 and late 2023, there have been prosecutions in relation to 18 secrecy offence provisions under 11 laws. Primarily, those related to taxation, social security and law enforcement legislation. (p. 8)

In recent years, there have been two significant high-profile prosecutions for breaches of Commonwealth secrecy offences:

• the prosecution of David McBride who was charged and pled guilty to two counts of unlawful communication under the Defence Act 1903 and one count of theft under the Criminal Code for sharing classified information with journalists relating to actions taken by Australian Defence Force members in Afghanistan (he was sentenced in May 2024 to 5 years and 8 months imprisonment)
• the prosecution of Richard Boyle who was charged and pled guilty to offences under the Taxation Administration Act 1953 and Listening and Surveillance Devices Act 1972 (SA) for sharing information with journalists in relation to the Australian Taxation Office’s debt collection practices (he was sentenced on 28 August 2025 and received a 12-month good behaviour bond).

Types of secrecy provisions

There are four main types of secrecy provisions (pp. 10-11):

• Non-disclosure duties: provisions that impose a duty on Commonwealth officers not to disclose or otherwise deal with certain information. Non-disclosure duties are criminal offences by virtue of section 122.4 of the Criminal Code, where a Commonwealth officer communicates information that they made or obtained as part of their work, despite being under a duty not to disclose that information and that duty is found in a Commonwealth law. The maximum penalty is two years imprisonment.
• Specific secrecy offences: prohibit the unauthorised disclosure of a specific type of information under a particular piece of legislation. These offences specify conduct, types of information, and penalties.
• General secrecy offences: prohibit information disclosure where it could ‘cause harm to Australia’s interests’ or the information is ‘inherently harmful information’. Part 5.6 of the Criminal Code sets out the general secrecy offences. These offences were enacted by the  National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act), which was a broad package of reforms to help counter the significant risks to Australia’s security and defence posed by espionage and foreign interference. The EFI Act also repealed the existing secrecy offences in the Crimes Act 1914.
• Override provisions: these provisions disapply secrecy offences in other Commonwealth laws by allowing a person to disclose or deal with information that may otherwise be prohibited by a secrecy offence.

Information on the number and type of each of these provisions is set out in the below table.

Table 1: Commonwealth secrecy laws

Type	Number	Example
Non-disclosure duties	295 provisions in 102 Commonwealth laws	Section 30A of the Archives Act 1983 provides that an archive officer must not disclose census information to another person before it becomes available in the open access period.
Specific secrecy offences	569 provisions in 183 Commonwealth laws	Section 96 of the Space (Launches and Returns) Act 2018 prohibits an investigator of a space-related activity accident from disclosing a safety report of that accident to another person or to a court.
General secrecy offences	11 provisions in Part 5.6 of the Criminal Code	Subsection 122.1(1) of the Criminal Code prohibits the communication of inherently harmful information (such as security classified information) by a Commonwealth officer in the course of their work.
Override provisions	25 provisions in 20 Commonwealth laws	Section 30 of the Auditor-General Act 1997 allows information to be disclosed to integrity agencies even if it would otherwise be prohibited from being disclosed

Source: Attorney-General’s Department (AGD), Review of Secrecy Provisions: Final Report, (Canberra: AGD, 2023),10-11. Note that the number of provisions may have changed since this report was published.

ALRC Review of Secrecy Laws

On 5 August 2008, the then Attorney-General, Robert McClelland, asked the Australian Law Reform Commission (ALRC) to conduct an inquiry ‘into options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government by providing appropriate access to information.’ (p. 21). As part of its inquiry, the ALRC ‘identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences—a ‘plethora’ of provisions.’ (p. 22) The ‘Secrecy Laws and Open Government in Australia’ report was tabled in March 2010 and made 61 recommendations for reform (these are only discussed briefly below).  

There were three underlying principles which guided the ALRC’s recommendations (p. 23):

• administrative and disciplinary frameworks play the central role in ensuring that government information is handled appropriately, and that every person in the information chain understands their responsibilities in respect of that information
• criminal sanctions should only be imposed where they are warranted—when the disclosure of government information is likely to cause harm to essential public interests—and where this is not the case, the unauthorised disclosure of information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies
• there is a continuing role for properly framed secrecy offences—both general and specific—in protecting Commonwealth information, provided that they are clear and consistent, and directed at protecting essential public interests.

The ALRC recommended (Recommendation 4–1) that the then-existing offences in the Crimes Act be repealed and replaced with:  

• a new general secrecy offence targeted to protecting essential public interests and
• two new offences prohibiting the subsequent disclosure of Commonwealth information by third parties.

In developing these recommendations, the ALRC also set out the specific elements for each offence, as well as the relevant exemptions and penalties.

The ALRC recognised that there is still a need for specific secrecy offences. As part of its recommendations, the ALRC developed a set of principles to guide the creation of new specific secrecy offences and the review of existing offences (see Recommendations 8–1 to 8–3, 9–1 to 9–9 and 10–1 to 10–4). Importantly, the ALRC determined that specific secrecy offences are only warranted where they are necessary and proportionate to the protection of essential public interests of sufficient importance to justify criminal sanctions (Recommendations 8–1).

The ALRC recommended (Recommendation 11–1) that Australian Government agencies should review specific secrecy offences to determine:

• whether a criminal offence is warranted and
• if so, whether the secrecy offence complies with the best practice principles set out in Recommendations 8–1 to 8–3, 9–1 to 9–9 and 10–1 to 10–4 and
• whether it would be appropriate to consolidate secrecy offences into:
• a single provision or part where multiple secrecy provisions exist in the same Act or
• one Act where secrecy offences exist in more than one Act for which the same Australian Government agency is responsible.

AGD Secrecy Review

On 22 December 2022, the then Attorney-General, Mark Dreyfus, requested AGD undertake a review of Commonwealth secrecy provisions (the AGD Secrecy Review). The review responded to recommendations made by the ALRC in its ‘Secrecy Laws and Open Government in Australia’ report, as well as the growth in the ‘number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences’ (p. 4).

The AGD Secrecy Review was directed to conduct an inquiry and report on (p. 5):

• any specific secrecy offences in Commonwealth legislation that are no longer required in light of the introduction of the general secrecy offences in the EFI Act
• the suitability and appropriate framing of the general and specific secrecy offences in Commonwealth legislation, having particular regard to:
• the principles outlined in the ALRC Report (discussed above) and
• other relevant principles, including but not limited to those set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
• any amendments to general and specific secrecy offences in Commonwealth legislation that are necessary to adequately protect individuals who provide information to Royal Commissions balanced against other essential public interests (see the Bills Digest for the Royal Commissions Legislation Amendment (Protections for Providing Information) Bill 2026 for further information on these recommendations) and
• any amendments that are necessary to adequately protect public interest journalism balanced against other essential public interests.

The Government publicly released the Final Report of the AGD Secrecy Review in November 2023. The Report made 11 recommendations, which included (pp. 8-9):

• legislation be developed to repeal specific secrecy offences and non-disclosure duties identified through the Review’s consultations as no longer being required (Recommendation 2)
• AGD develop a new general secrecy offence for inclusion in Part 5.6 of the Criminal Code, which would then allow Commonwealth departments and agencies to identify specific secrecy offences and non-disclosure duties which would no longer be required and could be repealed (Recommendations 3 and 4)
• section 122.4 of the Criminal Code be repealed or allowed to sunset on 29 December 2024 (Recommendation 5)
• legislation be developed to apply a public interest journalism defence similar to the defence in section 122.5(6) of the Criminal Code to additional secrecy offences (Recommendation 8)
• legislation be developed as a priority to require the protection of public interest journalism to be considered in decisions on warrant applications, including in the investigation of secrecy offences, as recommended by the Parliamentary Joint Committee on Intelligence and Security in its Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press (2020 Press Freedom Report) (Recommendation 9).

The AGD Secrecy Review also recommended that the Government adopt a set of 12 Principles which would guide future work to reduce the number of secrecy offences and support a consistent approach to the framing of secrecy offences (Recommendation 1).

On 21 November 2023, the Government announced it would introduce reforms to Commonwealth secrecy offences in response to the AGD Secrecy Review and the 2020 Press Freedom Report.

INSLM Secrecy Review

From December 2023 to May 2024, the Independent National Security Legislation Monitor (INSLM) conducted an independent review of the secrecy offences in Part 5.6 of the Criminal Code (INSLM Secrecy Review).

The report of the INSLM Secrecy Review was published in June 2024 and contained 15 recommendations, including:

• removing reliance on ‘security classification’ alone as the basis for an offence (Recommendations 1 and 12)
• narrowing offences applicable to security and intelligence agency information to focus on covert intelligence activities (Recommendations 2 and 3)
• amending section 122.2 of the Criminal Code to clarify the meanings of ‘security’, ‘defence’ and ‘international relations’ (Recommendation 6)
• repealing certain offences that currently apply to people who do not work for the government, including journalists (Recommendation 8)
• limiting the circumstances in which the aggravated penalty for disclosing information will apply (Recommendation 10) and
• requiring that the Attorney-General’s consent for prosecution under Part 5.6 be retained (Recommendation 14).

The INSLM Secrecy Review also noted the recommendation of the AGD Secrecy Review that the general offence provision (section 122.4 of the Criminal Code) be replaced with a new general offence. The INSLM Secrecy Review recommended that the offence should (p. viii):

• apply to disclosures that prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth
• be harm-based and relate to essential public interests. However, if ‘deemed harm’ offences are to be incorporated, they should be limited to a very narrow category of information where significant harm to an essential public interest is always, or almost always, going to be the result.
• cover only disclosures that cannot be adequately dealt with by existing remedies including contractual and administrative remedies
• avoid broad and uncertain language such as ‘functioning of government’
• apply to current and former Commonwealth officials and others who perform work for a Commonwealth entity in relation to information acquired in the course of their duties. However, if the scope of the offence is to be broadened it should still be closely linked to some kind of contract, agreement or arrangement with the Commonwealth.
• that the penalty for reckless conduct should be no more than 2 years imprisonment.

The Government agreed or agreed in principle to the majority of the INSLM Secrecy Review’s recommendations, though did not support Recommendation 4 (which related to narrowing the scope of the deemed harm offences that will apply to officials connected to certain intelligence agencies).

Policy position of non-government parties/independents and stakeholders

At the time of writing, non-government parties/independents do not appear to have commented directly on the Bill. The views of stakeholders are discussed in the ‘Key issues and provisions’ section below.

Key issues and provisions

Schedule 1: Repeal of section 122.4 and a new general secrecy offence

Part 5.6 of the Criminal Code contains 11 general secrecy offences:

Part 5.6 of the Criminal Code includes offences that apply to Commonwealth officials (including contractors) who disclose or otherwise deal with what is defined as ‘inherently harmful information’ or information that falls into a category defined as ‘causing harm to Australia’s interests’. Part 5.6 also contains a general offence pertaining to officials who breach a duty imposed by another law not to disclose information. That offence is due to sunset in December 2024. There is also an offence in Part 5.6 that applies to any person (not just officials) who disclose specified types of information, including information that has a security classification of SECRET or TOP SECRET applied in accordance with a policy framework developed by the Commonwealth. There are specific defences in Part 5.6 – including a limited defence which applies to disclosures made by journalists.

Item 1 of Schedule 1 of the Repeal Bill repeals section 122.4 of the Criminal Code and replaces it with a new general secrecy offence.

Section 122.4 provides that it is an offence for a current or former Commonwealth officer to communicate information that they made or obtained as part of their employment, despite being under a duty not to disclose that information and where that duty arises under Commonwealth legislation. At present, there are more than 300 non-disclosure duties that would enliven the offence in existing section 122.4 (p. 11, Explanatory Memorandum).

As noted in the AGD Secrecy Review:

…the operation of section 122.4 was time-limited, to preserve criminal liability until each duty could be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence or that criminal liability is no longer required.’ (p. 40)

Section 122.4 is currently due to sunset on 29 June 2026. The AGD Secrecy Review considered section 122.4 to be problematic and recommended that it be repealed or allowed to sunset on 29 December 2024 (Recommendation 5, p. 41). This would remove the criminal penalty that currently applies to a number of non-disclosure duties under Commonwealth laws (though civil and administrative penalties will still apply). The Sunsetting Bill will extend the sunsetting date of section 122.4 from 29 June 2026 to 29 December 2026 to allow time for the amendments to commence.

Proposed section 122.4 will create a new offence where:

• a person uses or communicates information (proposed paragraph 122.4(1)(a))
• the information was made or obtained by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Part 5.6 Commonwealth entity, or providing, or having provided, services (whether paid or unpaid) to a Part 5.6 Commonwealth entity (proposed paragraph 122.4(1)(b))
• the person uses or communicates the information with the intention of obtaining, or seeking to obtain, a benefit for the person or any other person, or causing, or seeking to cause, detriment to a Part 5.6 Commonwealth entity or any other person (proposed paragraph 122.4(1)(c)) and
• it would be reasonable to conclude that the use or communication of the information is improper (proposed paragraph 122.4(1)(d)).

The maximum penalty will be two years imprisonment, and the defences provided for in section 122.5 of the Criminal Code would apply to this offence.

A ‘Part 5.6 Commonwealth entity’ is defined to mean any Commonwealth entity (as defined in the Dictionary to the Criminal Code) except for the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service Corporation (SBS). Proposed paragraph 122.4(1)(b)) will extend application of the offence to persons providing services (paid or unpaid) to a Part 5.6 Commonwealth entity:

There are some limited circumstances where a person may be in a position of significant trust and receive sensitive Commonwealth information in that position but is not engaged on contract. For example, an industry expert may be providing voluntary services to the Commonwealth by serving as a member of an advisory board. Extending the offence to persons who provide services to the Commonwealth is intended to ensure a Commonwealth contract is not the sole determinant of whether a person is subject to the secrecy offence. The offence would not apply to Commonwealth funded service providers, such as family law services funded by the Family Relationships Service Program and legal assistance services funded under the National Access to Justice Partnership, which are appropriately subject to the existing offence for non-officials at section 122.4A. (p. 14, Explanatory Memorandum)

The Government has stated that this offence is intended to respond to the situation where a former PricewaterhouseCoopers (PwC) partner allegedly shared confidential Commonwealth information to assist PwC clients to avoid Australian tax.

The AGD Secrecy Review recommended that the new offence criminalise disclosures ‘prejudicial to the effective working of government’:

While the Review acknowledges that the ALRC did not consider ‘prejudice to the effective working of government’ an essential public interest of sufficient importance to justify protection by a secrecy offence, the Review’s view is that disclosure of information that harms the effective working of government undermines the Australian community’s trust in government and the ability of Commonwealth departments and agencies to deliver policies and programs. It is appropriate that conduct which causes or is likely to cause prejudice to the effective working of government be captured. (p. 35)

Following the release of the AGD Secrecy Review, Vice-Chancellor and President of the Western Sydney University, George Williams, noted that while ‘[t]he idea of a single, general offence is a good one’,  ‘the threshold for invoking it is too low’ and that ‘[g]reater harm should be required to give rise to criminal liability’. During consultations as part of the INSLM Secrecy Review, the Australian Human Rights Commission argued that ‘the proposed new general secrecy offence…is unnecessary’ and if it were to be introduced ‘it should be narrowed in scope to capture unauthorised disclosures of information that will result in some specific, identifiable harm to an essential public interest.’ (p. 20)

The INSLM Secrecy Review recommended that the offence ‘should be harm-based and relate to essential public interests’ and avoid ‘broad and uncertain language such as “functioning of government”’(Recommendation 11, p. viii). It further argued that ‘if “deemed harm” offences are to be incorporated, they should be limited to a very narrow category of information where significant harm to an essential public interest is always, or almost always, going to be the result.’ (p. viii) This reflected the views of the ALRC which recommended (Recommendation 5–1) that the general secrecy offence should require that the disclosure of Commonwealth information did, or was reasonably likely to, or intended to:

• damage the security, defence or international relations of the Commonwealth
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences
• endanger the life or physical safety of any person or
• prejudice the protection of public safety.

Following consultations with stakeholders, the Government stated that it did not agree with the AGD Secrecy Review that such a broad offence was required. However, the Government has not adopted the recommendations of the INSLM and the ALRC to constrain the application of proposed section 122.4 to situations where significant harm has, or is likely to, or intended to, occur.

Schedule 1: Other amendments

Item 2(3) in Part 1 of Schedule 1 will continue to apply section 122.4 as it existed immediately before the commencement of the Bill to the following non-disclosure duties:

• section 30A of the Archives Act
• section 67 of the Australian Hearing Services Act 1991
• section 19A of the Census and Statistics Act 1905
• sections 155AAA and 155AA of the Competition and Consumer Act 2010
• section 98E of the National Health Act 1953
• section 78 of the National Health and Medical Research Council Act 1992(NHMRC Act)
• sections 54H, 220A and 279 of the National Health Reform Act 2011
• section 183 of the Patents Act 1990.

This means that breaches of these non-disclosure duties may still attract criminal sanctions under section 122.4. Part 3 of Schedule 1 amends these provisions to include a note to this effect. As stated in the Explanatory Memorandum:

The protection offered by the offence at existing section 122.4 has been determined to be of continued necessity for this small number of duties, which relate to sensitive healthcare, personal and commercial information, and are unable to be sufficiently protected by offences in their specific legislation or other non-criminal sanctions. (p. 16)

The AGD Secrecy Review recommended that for non-disclosure duties where it has been assessed that criminal liability should be retained, legislation should be developed to convert these non-disclosure duties into specific secrecy offences (p. 41).

The reports of the reviews conducted by the ALRC, AGD and the INSLM emphasised the importance of clarity in formulating secrecy offences. More broadly, AGD’s Principles for clearer laws accentuate the importance of laws being no more complex than is necessary to give effect to policy and that legislation should enable those affected to understand how the law applies to them.

It might reasonably be questioned whether the approach taken in the Repeal Bill, where a superseded version of section 122.4 will apply to the provisions set out above,[1] with a note inserted after each of those provisions directing readers to an application provision in amending legislation, is the clearest and least complex way of achieving the intended outcome.

Items 4-7 in Part 2 of Schedule 1 will apply certain secrecy offences for Commonwealth officials (sections 122.1and 122.2) to an additional category of persons, being persons that are providing, or have provided, services (whether paid or unpaid) to a Commonwealth entity. Item 8 will amend section 122.4A to ensure the offence at subsection 122.4A(1) (which criminalises the unauthorised communication of certain sensitive information by non-Commonwealth officers) does not capture persons who are providing, or have provided, services (whether paid or unpaid) to a Part 5.6 Commonwealth entity (as these persons are captured by the offences in sections 122.1, 122.2 and 122.4 as amended by the Bill).

Schedule 2: Amendments relating to existing secrecy offences and non-disclosure duties

Part 1 of Schedule 2 will repeal the following offences and non-disclosure duties which were identified by AGD as no longer requiring criminal liability:

• section 25 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992
• sections 12K, 12L, 12Q, 12R, 12S and 12U of the Child Care Act 1972
• subregulation 117.030(4) of the Civil Aviation Safety Regulations 1998
• section 234 of the Commonwealth Functions (Statutes Review) Act 1981
• item 99 of Schedule 1 to the Family Assistance Legislation Amendment (Child Care Management System and Other Measures) Act 2007
• subsections 101(6) and (8) of the Fisheries Administration Act 1991
• section 11 of the National Blood Authority Act 2003
• subsection 80(7) of the NHMRC Act
• section 19H of the National Measurement Act 1960
• subsections 33(3) and (4) of Schedule 1 to the National Transport Commission (Model Legislation—Intelligent Access Program) Regulations 2006
• section 7 of the Parliamentary Commission of Inquiry (Repeal) Act 1986
• section 92 of the Sex Discrimination Act 1984
• section 197A, and subdivision A of Division 2 of Part 10 of the Tertiary Education Quality and Standards Agency Act 2011.

Part 2 of Schedule 2 will remove criminal liability from the following secrecy offences:

• subsection 102(1) of the Australian Jobs Act 2013
• subsection 14(3) of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992
• subsections 36(1), 37(1) and 66(1) of the Defence (Inquiry) Regulations 2018
• subsection 37(1) of the Defence Regulation 2016
• subsection 87(5) of the Export Finance and Insurance Corporation Act 1991
• subsection 7(1) of the Port Statistics Act 1977
• subsection 48(1) of the Resale Royalty Right for Visual Artists Act 2009
• subsection 79B(1) of the Reserve Bank Act 1959
• subregulation 13(1) of the Torres Strait Fisheries Regulations 1985.

These amendments will have the effect of converting each of these secrecy offences into non-disclosure duties that would not attract criminal liability, following the repeal of section 122.4. As noted in the Explanatory Memorandum:

These duties would continue to be protected by civil and administrative frameworks. Depending on the nature of the duty, this may include sanctions or remedies available under the APS Code of Conduct, Privacy Act, Public Service Act and Public Governance, Performance and Accountability Act 2013, contractual obligations and equitable duties of confidence. (p. 37)

Schedule 3:  Attorney-General’s consent to prosecute journalists for secrecy offences

As set out in the AGD Secrecy Review (p. 46), within the secrecy law context, the main protections for public interest journalism are:

• a defence in section 122.5(6) of the Criminal Code, which applies to the general secrecy offences
• a ministerial direction issued to the CDPP requiring the CDPP to seek the Attorney-General’s consent to the prosecution of a journalist for particular secrecy offences
• a ministerial direction issued to the Australian Federal Police (AFP) outlining the Government’s expectations for the AFP in relation to investigative action involving a journalist (which advises that the AFP should follow the AFP National Guideline on investigative action involving professional journalists or news media organisations) and
• oversight of journalist information warrants by Public Interest Advocates (PIA).

Submissions to the AGD Secrecy Review raised concerns ‘that the current framing of the public interest journalism defence in Part 5.6 of the Criminal Code, and the threat of legal action and investigation, has a chilling effect on public interest journalism’ (p. 46). While the AGD Secrecy Review did not support amending section 122.5(6) in line with some of the suggestions put forward by stakeholders, it did recommend that a public interest journalism defence similar to the defence in section 122.5(6) apply to additional secrecy offences (Recommendation 8, p. 48).

The AGD Secrecy Review also considered whether the ministerial direction requiring the CDPP to seek the Attorney-General’s consent to prosecute a journalist for certain offences should be maintained, and if so, whether it should be legislated. The response from stakeholders on this issue was described as ‘mixed’:

Some submissions were concerned that the ministerial direction amounts to an ‘unfettered discretion’ that could ‘expose the Attorney-General to allegations of political bias’. Others consulted by the Review suggested the direction provides an additional safeguard to protect public interest journalism, and enables the Attorney-General to consider a range of additional factors that the CDPP cannot have regard to under its Prosecution Policy in determining whether to commence a prosecution of a journalist. (p. 49)

For example, the Law Council of Australia stated that ‘[t]he apprehension of bias, by journalists, as to whether an Attorney-General will exercise discretion favourably may lead to a chilling effect on reporting.’ (p. 29) The Alliance for Journalists Freedom shared similar views, stating that ‘[t]he terms of the Direction do not safeguard media freedom, but merely politicise it.’ (p. 25)

The Law Council also noted that the Senate Environment and Communications References Committee in its 'Freedom of the Press’ report had recommended that the ministerial direction be revoked (Recommendation 9). The Human Rights Law Centre, Transparency International Australia and the Centre for Governance and Public Policy, Griffith University stated that the requirement to seek consent from the Attorney-General was ‘better than nothing’ (p. 9):

In a better system, with properly calibrated secrecy offences, robust whistleblower protections and warrant protections for journalists, the Attorney-General’s consent would not be required – and, indeed, would be undesirable, in light of the underlying principles. However, until that point, we consider that on balance the status quo remains a pragmatic safeguard against further threats to transparency in Australia. (p. 10)

The Australian Press Council submitted that  ‘[i]n line with the principle of ensuring the highest level of scrutiny of any such prosecutorial decision it would appear favourable to have this requirement in legislation rather than by Ministerial direction.’ (p. 3)

The AGD Secrecy Review recommended that the ministerial direction be retained and that legislating this requirement was not necessary:

The Review considers it appropriate to retain the requirement for the Attorney-General’s consent for a journalist to be prosecuted for these offences, noting that the decision to prosecute remains an independent decision for the CDPP. The requirement for consent provides an additional opportunity for scrutiny of such processes, in recognition of the public interest served by journalism. Noting that submissions were generally supportive of maintaining the ministerial direction in lieu of another mechanism, the Review considers that the requirement for consent could remain in the form of a ministerial direction, rather than being legislated. (p. 49)

Schedule 3 will insert proposed section 123.6 in Division 123 in Part 5.6 of the Criminal Code. This new provision would provide that proceedings for an alleged offence must not be commenced without the Attorney-General’s written consent if:

• the alleged offence is a contravention of a ‘secrecy provision’ that is an offence against a law of the Commonwealth (proposed paragraph 123.6(1)(a))
• the alleged offence otherwise does not require Ministerial consent to prosecute (proposed paragraph 123.6(1)(b)) and
• a reasonable person would consider that the conduct of the person (the accused) who is alleged to have committed the offence was engaged in by the accused in the accused’s professional journalistic capacity, or in the accused’s capacity as a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media (proposed paragraph 123.6(1)(c)).

The Repeal Bill will require the Attorney-General to apply an objective test in determining whether a person meets the requirements set out in proposed paragraph 123.6(1)(c). While the Bill will capture a wider range of persons than just journalists responsible for reporting information (including administrative staff, such as editors) it will not apply to sources of information.

‘Secrecy provision’ will be defined in subsection 121.1(1) as meaning a provision of a law of the Commonwealth that purports to prohibit; or anything done, under a provision of a law of the Commonwealth, to prohibit any of the following:

• the use of information or a document
• dealing with information or a document
• making a record of information, or a copy of a document
• the disclosure or publication of information
• the production of, or the publication of the contents of, a document
• access to information or a document.

The current Ministerial Direction only requires the Attorney-General’s consent for prosecution of the following offences:

• section 35P of the AustralianSecurityIntelligenceOrganisationAct1979 (ASIO Act)
• sections 3ZZHA, 15HK, 15HL and 70 of the Crimes Act
• sections 131.1 and 132.1 of the Criminal Code
• sections 73A of the Defence Act.

Subsection 123.5 (as amended by Item 43 of Schedule 4, discussed further below) requires the Attorney-General’s written consent before proceedings can be initiated in relation to any offence in Part 5.6 of the Criminal Code. This requirement also applies to journalists.

The Explanatory Memorandum states that:

While the definition is broad and would capture a significant range of use, dealings and disclosures of information, the reference to ‘secrecy’ is intended to ensure the definition is narrowed to only capture provisions that could be sensibly interpreted to be a Commonwealth secrecy offence or non-disclosure duty. (p. 43)

The Government will also have the power to make regulations prescribing certain offences, or categories of offences, as not being subject to the requirement to seek consent, even where they would fall within the definition of a ‘secrecy provision’ (proposed subsection 123.6(4)).

Proposed subsection 123.6(2) provides that despite the requirement for consent at proposed subsection 123.6(1), the following steps may be taken (but no further steps in proceedings may be taken) without consent having been obtained:

• a person may be arrested for the offence and a warrant for such an arrest may be issued and executed
• a person may be charged with the offence
• a person so charged may be remanded in custody or on bail.

Schedule 4: Amendments relating to the INSLM’s Secrecy Review

Schedule 4 contains amendments to Part 5.6 of the Criminal Code which respond to the INSLM’s Secrecy Review, including:

• amending the definitions of ‘deal’ and ‘communicate’ (Items 5 and 12)
• repealing the ‘proper place of custody’ offences (Items 13, 17 and 19)
• repealing three of the four existing aggravating circumstances in section 122.3 so that the aggravated offence only applies where a person has the highest level of security clearance or the person committed an underlying offence with the higher fault element of intention to cause harm or knowledge of that harm (Item 22)
• reducing the maximum penalty for the offence for non-officials in section 122.4A from 5 years to 3 years imprisonment (Item 23)
• repealing the offence for dealing with information by non-officials in subsection 122.4A(2) (Item 24)
• providing that the Attorney-General’s consent be required regardless of whether a prosecution proceeds by way of committal or summary proceedings (Item 43).

Schedule 4 will also amend the Intelligence Services Act 2001 to require the Director of the Defence Intelligence Organisation to make publicly available the document known as the Defence Intelligence Organisation Mandate, as in effect from time to time (Item 46).

Changes to the definition of ‘cause harm to Australia’s interests’

Part 5.6 of the Criminal Code includes offences that apply to Commonwealth officials (including contractors) who disclose or otherwise deal with what is defined as ‘inherently harmful information’ (section 122.1) or information that falls into a category defined as ‘causing harm to Australia’s interests’ (section 122.2).

Subsection 121.1(1) defines ‘cause harm to Australia’s interests’ to mean: