This chapter considers
evidence concerning the offence-specific defences available in relation to the secrecy offences in Schedule 2 to the Bill,
other matters concerning the secrecy provisions, including interactions with other legislation, the Attorney-General’s consent to institute proceedings, penalties and consequential amendments, and
the Committee’s conclusions in relation to these matters.
In addition to the range of general defences available under Part 2.3 of the Criminal Code, the Bill’s secrecy provisions contains a range of offence-specific defences, for which the defendant bears an evidential burden. A broad range of issues were raised with the Committee about the scope and clarity of these defences, and their application in a range of contexts.
Official duties – subsection 122.5(1)
The defence in proposed section 122.5(1) provides:
It is a defence to a prosecution for an offence by a person against this Division that:
(a) the person was exercising a power, or performing a function or duty, in the person’s capacity as a Commonwealth officer or a person who is otherwise engaged to perform work for a Commonwealth entity; or
(b) the person dealt with, removed or held the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.
Evidential burden on the defendant
The effect of placing an evidential burden on the defendant is discussed in general terms in Chapter 3.
In relation to the proposed secrecy offences, the Commonwealth Ombudsman noted:
[T]here is a policy question of whether Commonwealth officials should be caught by criminal offences by the mere act of carrying out their duties. An alternative could be for the offence to contain an element to be proved by the prosecution that the person was not acting in the course of their duties.
… Commonwealth Ombudsman staff will need to rely on a defence to a serious offence in order to perform the duties of their role because they will be “dealing with” or “communicating” inherently harmful information.
The Acting Commonwealth Ombudsman explained how this reversal of the evidential burden may create a ‘chilling effect’ on agency staff responding to requests for information from the Ombudsman’s office:
We rely on agencies to provide that information for us to deal with complaints and systemic issues, when we request it, in a timely manner so that we can conduct our investigations. So the concern that we are really raising is: the new provisions, or the new offences, may have a chilling effect on agency staff to feel comfortable about responding to those requests for information to our office.
The IGIS raised similar concerns in her submission, noting that the framing of the provisions in this way ‘raises a general question of whether it is appropriate for the criminal law to place individual officers in this position’. At a public hearing, the Deputy IGIS contrasted the Bill to the existing secrecy offences in the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and Intelligence Services Act 2001, which were significantly amended in 2014:
In respect of inspector-general officials, rather than it being a defence to an offence that they were acting in the course of their duties, it’s an exception to the offence, which is a subtle but important difference in terms of the evidential onus. In the ASIO Act and the Intelligence Services Act model, the onus is reversed. The onus is on the prosecution to show that they weren’t acting in the course of their duties rather than on the official to lead evidence that, because of our secrecy provisions, they may have difficulty in leading.
Responding to these concerns, the Attorney-General’s Department submitted:
The department considers it appropriate for the defendant to bear an evidential burden for pointing to evidence of how his or her conduct was authorised, either under law or as part of his or her duties. As set out at paragraph 1617 of the Explanatory Memorandum, the imposition of an evidential burden is appropriate because the defendant should be readily able to point to evidence that their conduct was either done in their official capacity as a Commonwealth officer. If this is done, the prosecution must refute the defence beyond reasonable doubt.
The Committee noted the following view expressed by the ALRC in its 2009 report:
While framing a provision as a defence, rather than as an exception, does not of itself alter evidential burdens of proof, it may have procedural advantages for a defendant, in that a defendant must wait until the defence case is called before being able to lead evidence to justify his or her conduct.
However, the Department advised that, after consultation with the Commonwealth Director of Public Prosecutions, it did not agree with the ALRC’s view:
Regardless of whether the provision is framed as an exception or defence, the accused must discharge the evidential burden pursuant to section 13.3 of the Criminal Code. In either circumstance, an accused may do this by relying on matters that form part of the prosecution case or seeking to lead evidence as part of the defence case, to discharge the burden. The question of whether the evidential burden has been satisfied is a question of law, to be decided by a judge. If discharged, the question of whether the prosecution has disproven the defence/exception beyond reasonable doubt is put to a jury.
Neither the department nor the Office of the Commonwealth Director of Public Prosecution is aware of there being a difference in procedure for an exception or a defence.
The Department added:
An accused person may, for forensic reasons, wait until the defence case is called before revealing evidence to justify his or her conduct, but they do not have to take that course. An accused person may, and sometimes will, act proactively to advance evidence of a defence in a record of interview, by way of a statement or by supplying evidence to the prosecution in advance of a trial or a prosecution being initiated. This observation applies equally whether the provision is framed as an exception or defence.
The Department also clarified that, in the case of existing secrecy offences in section 18B (for example) of the ASIO Act, a burden of proof is not placed on the defendant for conduct engaged in in the course of their duties as an ASIO employee or affiliate, because the absence of this circumstance is an element of the offence and must be proved by the prosecution. However, the Department noted that if each of the eight defences (and 20 operative limbs) in proposed section 122.5 were to be similarly reframed as elements of the offence, ‘the prosecution would need to prove that these circumstances did not exist’ before the offence could be proved:
Proving all of these matters beyond reasonable doubt would be burdensome and costly when compared to the approach taken in the Bill of providing defences for the defendant to raise, as appropriate and as relevant to the individual facts and circumstances of the particular case. It is unlikely that all of these elements will be relevant to each prosecution ….
Application to the Inspector-General of Intelligence and Security
The IGIS pointed out an unintended consequence, specific to her office, of placing the initial evidentiary burden on the defendant to show that their dealing or communication with information was covered by the defence. Section 34 of the Inspector-General of Intelligence and Security Act 1986 makes it an offence for the IGIS or her staff to disclose information obtained in the course of their duties to any person, or to a court, other than for the performance of functions or duties under that Act or the Public Interest Disclosure Act 2013. As a result, the IGIS noted
In the event that a current or former IGIS official was investigated for, or charged with, one of the proposed offences in Division 122 of the Criminal Code, it would, for all practical purposes, be impossible for them to discharge the evidential burden of proving that the alleged dealing with or communication of information contrary to the proposed offences was undertaken in the course of their duties. Indeed, they would potentially commit an offence under s 34(1) of the IGIS Act by disclosing that information in their defence at trial, or providing it to law enforcement officials investigating the potential commission of an offence under Division 122. Similar difficulties may arise in the investigation or prosecution of a person who made a complaint or disclosure to the IGIS that included ‘inherently harmful information’.
The IGIS suggested that it would be preferable for the elements of the proposed secrecy offences to contain an exclusion of IGIS officials, similar to the existing exclusions in section 18D of the ASIO Act and section 41B of the Intelligence Services Act 2001. An IGIS official does not bear the evidential burden in relation to these provisions. The Attorney-General’s Department agreed that such a provision could be included in the Bill.
Alongside proposed amendments to the Bill that were provided to the Committee on 5 March 2018, the Attorney-General indicated that his ‘initial view’ was that the Bill should be amended by inserting a provision similar to subsection 18D(2) of the Australian Security Intelligence Organisation Act 1979 to ensure that IGIS officials do not bear an evidential burden in relation to the defences in section 122.5 of the Bill. The IGIS expressed her support, in principle, for this proposal.
Partner agency officials
The Committee noted that to be lawful under the proposed secrecy provisions, foreign partners would need to rely on the statutory defence for dealing with information in accordance with an agreement with the Commonwealth (section 122.5(1)(b)) in order to share information with Australian intelligence and law enforcement agencies. The Committee asked whether framing the secrecy offences and defences in this way risked hampering co-operation with foreign partners. The Attorney-General’s Department responded:
Agencies have been consulted about the application of the offences in this context.
Application to members of parliament and state and territory authorities
The Committee sought the Attorney-General’s Department’s advice on the extent to which members of parliament, ministers and their staff, who may deal with Commonwealth information subject to the secrecy offence, were covered by the defence in section 122.5(1). The Department initially advised that members of parliament, ministers and their staff are covered by the definition of ‘Commonwealth officer’, and therefore covered by the defence. However, after further questioning, the Department corrected this advice and confirmed that the defence at 122.5(1) would not be available to members of parliament who are not ministers of State.
The Committee similarly sought the Department’s advice on the extent to which the defence at proposed section 122.1(1) would apply to state and territory agencies—and their oversight bodies—who may be required to deal with Commonwealth information. The Committee noted that while the Explanatory Memorandum makes clear that the defence at proposed section 122.1(1)(b) is intended to cover departments and agencies that ‘share information with State, Territory and international counterparts, private companies, and individuals as part of their normal business dealings’, it was not clear that the defence would extend to state and territory oversight bodies who may be required to inspect or otherwise deal with such information in the course of their duties.
In response to both of the above concerns, the Department proposed that the issues could be addressed by amending the defence in section 122.5(1) so that it is available to any person who deals with information in their capacity as a ‘public official’, as defined in the existing dictionary to the Criminal Code, rather than to a ‘Commonwealth officer’, as defined in the Bill. The Department advised that the term ‘public official’
is a broader term, which explicitly covers a members of either House of Parliament,
is used in the defences provided for in other parts of the Bill [for example, proposed section 91.4(1)], and
extends to officers and employees of a State or Territory, individuals who hold or perform the duties of an office established by a law of a State or Territory and individuals who are in the service of a State or Territory (including police forces).
The term ‘public official’ also covers the Governor-General and members of the judiciary.
Oversight bodies, courts and tribunals – subsections 122.5(3)–(5)
Proposed section 122.5(3) in the Bill provides defences to the secrecy offences for communication of information to
the Commonwealth Ombudsman and his staff, and
the Law Enforcement Integrity Commission and staff of the Australian Commission for Law Enforcement Integrity.
The Bill also provides defences for information communicated in accordance with the Public Interest Disclosure Act 2013 (PID Act)(proposed subsection 122.5(4)), and information communicated to a court or tribunal (proposed subsection 122.5(5)).
Limitation of defence to communication of information
Several participants in the inquiry queried why these defences were limited to only communication of information. That is, they provide a defence against the secrecy offences in the Bill relating to communication of information, but do not provide a defence against the offences of dealing with information; removing information from or holding information outside a proper place of custody; or for failing to comply with a lawful direction regarding the retention, use or disposal of information.
For example, the Deputy Inspector-General of Intelligence and Security told the Committee that the defence in proposed subsection 122.5(3) would only apply once the communication had been completed:
It doesn’t apply to the preparatory steps, so when a whistleblower, for want of a better word, is copying a document or scanning it to send it to us, those preparatory steps are not covered unless the person succeeds in communicating. Our comment is that we would look for protections for whistleblowers to cover all of the steps, provided they are in fact intending and acting towards communicating the information to us.
The IGIS referred the Committee to existing secrecy offences in the ASIO Act and the Intelligence Services Act 2001, which provide specific defences for dealing with or recording information for the purpose of the IGIS exercising a power or performing a function.
The Attorney-General’s Department provided the following response to the concerns raised by the IGIS and other submitters:
The defences at subsections 122.5(3), (4), (5) and (8) do not explicitly extend to conduct involving dealings with information other than communications. The defences could be explicitly extended to cover a broader range of dealings.
The department notes that, in relation to security classified information, there are significant risks attached to inappropriate storage or handling of such information. An extended defence would have the effect of not criminalising improper handling of highly classified information, leaving conduct that may be preparatory to more serious offences un-addressed.
Alongside proposed amendments to the Bill that were provided to the Committee on 5 March 2018, the Attorney-General indicated that his ‘initial view’ was that the Bill should be amended by broadening the defences at subsections 122.5(3) and (4) of the Bill to cover all dealings with information. The IGIS expressed her support, in principle, for this proposal.
Defence for the Office of the Australian Information Commissioner
In a submission to the inquiry, the Australian Information Commissioner identified a range of functions of his office that may be impacted by the proposed secrecy offences in the Bill:
review of Freedom of Information Act 1982 (FOI Act) decisions of agencies and ministers
investigate FOI Act complaints
investigate acts or practices of entities (including Commonwealth government agencies) that may be an interference with the privacy of an individual
receive mandatory notification from entities (including Commonwealth government agencies) about data breaches likely to cause serious harm to individuals
conduct assessments of entities’ compliance with requirements for protecting personal information under the Privacy Act 1988 (Privacy Act)
do all things necessary or convenient to be done for, or in connection with, the performance of the Commissioner’s functions under the Privacy Act
conduct assessments of telecommunications carriers and carriage service providers’ compliance with record keeping requirements under the Telecommunications Act 1997.
The Commissioner recommended that a defence, similar to the existing defence in proposed section 122.5(3), be included to ensure that the Office of the Australian Information Commissioner ‘can continue to exercise its important oversight responsibilities’.
However, the Commissioner’s submission may have been based at least in part on a misreading of the Explanatory Memorandum. The Commissioner expressed concern that:
I am unsure whether the defence proposed in section 122.5(1)—available to Commonwealth officers and others performing work for Commonwealth entities—will enable the proper exercise of my functions, duties and powers. I understand that the proposed defence, ‘is narrow and only applies to conduct that is specifically justified or excused by a law’.
The quote from the Explanatory Memorandum in the Commissioner’s submission relates to the operation of existing “lawful authority” defence in section 10.5 of the Criminal Code, rather than the new defence in subsection 122.5(1) of the Bill. The full quote from the Explanatory Memorandum is:
Section 10.5 of the Criminal Code provides a general defence of lawful authority applicable to all Commonwealth offences. This defence is narrow and only applies to conduct that is specifically justified or excused by a law. Consistent with the definition of law in the Dictionary to the Criminal Code, this means the conduct must be specifically justified or excused by a law of the Commonwealth, and includes the Criminal Code.
The defence at paragraph 122.5(1)(a) is broader than the lawful authority defence available under section 10.5, and will cover a person [who] was exercising a power, or performing a function or duty, in the person’s capacity as a Commonwealth officer or a person who is otherwise engaged to perform work for a Commonwealth entity, rather than the law of the Commonwealth needing to specifically justify or excuse the person’s conduct.
Journalists and their associates – subsection 122.5(6)–(7)
Proposed subsection 122.5(6) provides a defence for the dealing with (i.e. including communication) or holding of information that is:
in the public interest, and
in the person’s capacity as a journalist engaged in fair and accurate reporting.
Proposed subsection 122.5(7) provides that dealing with or holding certain types of information is not in the public interest. This includes the publication of the identity of staff and affiliates of ASIO, and other intelligence agencies; information that it would be an offence to disclose under certain sections of the Witness Protection Act 1994; and information that ‘will or is likely to harm or prejudice the health or safety of the public or a section of the public’.
Many participants in the inquiry raised concerns about the impact of the secrecy provisions on journalists, including the limited coverage of these defences. A submission from the joint media organisations—representing 14 major media organisations, including News Corp Australia, Fairfax media, the Australian Broadcasting Corporation, FreeTV Australia, Commercial Radio Australia and the Media, Entertainment and Arts Alliance—asserted that the Bill
criminalises all steps of news reporting, from gathering and researching of information to publication/communication, and applies criminal risk to journalists, other editorial staff and support staff that knows of the information that is now an offence to ‘deal’ with, hold and communicate.
The Bill is a significant step beyond the existing legislation that applies to Commonwealth officers. This is particularly when it has not been demonstrated that there are ‘problems’ that need to be ‘fixed’. The result is that fair scrutiny and public interest reporting is increasingly difficult and there is a real risk that journalists could go to jail for doing their jobs.
Many of the concerns raised by the media organisations relate to the breadth of information and conduct captured by the secrecy offences, including their application to both ‘insiders’ and ‘outsiders’, as was discussed in the previous chapter. The organisations recommended a ‘general public interest/news reporting defence’ in the Bill and described the existing defence for journalists in proposed subsection 122.5(6) as being ‘narrow and subjective, particularly the matters of “public interest” and “fair and accurate reporting”‘. In relation to the existing defence, the organisations recommended:
that ambiguity as to whether the defence applies to communications offences, as well as ‘deals with’ offences, be removed,
that ‘journalist’ be defined in the Bill consistently with the definition in the Evidence Act 1995,
that the defence be extended to journalist’s support staff, who may also deal with the information covered by the offences,
that the use of the term ‘fair and accurate reporting’ be reconsidered,
that the Committee review the Journalists Information Warrant Scheme, noting concerns that powers under the Telecommunications (Interception and Access) Act could be used to identify a journalist’s confidential source, and
that the inclusion of ‘harm or prejudice the health or safety of the public or a section of the public’ be removed from proposed subsection 122.5(7).
These points were raised in similar terms and supported by some other contributors to the inquiry.
The Centre for Media Transition additionally argued that the defence should be ‘recast’ as an exemption from the offence provisions, or ‘at least that the burden of proof be on the prosecution to establish that a journalist was not working in the public interest’.
The Law Council of Australia recommended that the Bill
non-exhaustively identify some factors that may be considered for the purposes of determining whether the dealing with or holding of information may be in the public interest for the purpose of the proposed journalist defence. Such factors may include for example:
promoting open discussion of public affairs, enhancing government accountability or contributing to positive and informed debate on issues of public importance;
informing the public about the policies and practices of agencies in dealing with members of the public;
ensuring effective oversight of the expenditure of public funds;
the information is personal information of the person to whom it is to be disclosed; and
revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Responding to the Law Council’s suggestion, the Attorney-General’s Department advised:
The Bill does not seek to define public interest beyond the exclusions listed in subsection 122.5(7). This allows the defendant to adduce or point to evidence that suggests a reasonable possibility that the person held or dealt with the information in the public interest (as required in order to discharge an evidential burden consistent with subsection 13.3(6) of the Criminal Code). Once this burden is discharged, the prosecution will then be required to prove the person did not hold or deal with the information in the public interest beyond reasonable doubt.
Government proposed amendments – journalists defence
On 13 February 2018, the Attorney-General’s Department advised the Committee that it had been asked by the Attorney-General to progress a number of changes to the general secrecy offences in Schedule 2 to the Bill. This included amendments directed at ‘strengthening the defence for journalists’ at proposed subsection 122.5(6) by
removing any requirement for journalists to demonstrate that their reporting was ‘fair and accurate’, ensuring that the defence is available where a journalist reasonably believes that their conduct was in the public interest, and
clarifying that the defence is available for editorial and support staff as well as journalists themselves.
The Committee received draft amendments to this effect from the Attorney-General on 5 March 2018. The proposed amendments remove the existing defence at subsection 122.5(6), and replace it with the following defence:
It is a defence to a prosecution for an offence by a person against this Division relating to the dealing with or holding of information that:
(a) the person dealt with or held the information in the person’s capacity as a person engaged in reporting news, presenting current affairs or expressing editorial content in news media; and
(b) at that time, the person reasonably believed that dealing with or holding the information was in the public interest (see subsection (7)).
Additionally, subsection 122.5(7) is proposed to be amended to provide that a person may not reasonably believe that dealing with or holding information is in the public interest if—in relation to non-Commonwealth officers only—dealing with or holding information that, at that time, ‘will or is likely to result in the death of, or serious harm to, a person’. This differs from the existing criteria, which will continue to apply in relation to Commonwealth officers, that the conduct ‘will or is likely to harm or prejudice the health or safety of the Australian public or a section of the Australian public’.
Subsection 122.5(7) is also proposed to be amended to provide that a person may not reasonably believe that dealing with or holding information is in the public interest if the dealing with or holding of the information is ‘for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation’.
Responding to the proposed amendments, submitters expressed general support for the amendments but noted remaining concerns about the applicability of the defence to non-traditional forms of journalism; and the perceived lack of protection for persons who are not journalists.
The Law Council of Australia submitted that it
remains opposed to the notion that the public interest exception should only be available to journalists or the news media. This is not a proper criterion for criminal liability. The exception is now defined more widely than journalism but just who the target is remains unclear. The defence refers to news media but it is not clear that it would pick up an individual blogging for example.
The Law Council noted that the amended defence ‘still reaches only people who are engaged in the news media’ and would not protect ‘a victim of prosecutional police malpractice, for example’.
The joint media organisations expressed concern that the amended defence would not specifically extend to editorial support staff, such as legal advisors and administrative staff; and that it would apply to a ‘narrow range of news media formats’. The organisations recommended that paragraph 122.5(6)(a) be amended to read:
The person dealt with or held the information in the person’s capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media. [emphasis in original]
The joint media organisations also considered that support staff should ‘not be required to hold the belief that dealing with the information was in the public interest in order to rely on the defence’, as assessing whether or not something is in the public interest is ‘not within their capacity in the normal course of their job’. The organisations recommended the Bill being amended in one of two ways:
Amend s122.5(6)(b) so that it contains two sub-sections:
(b)at that time, the person:
reasonably believed that dealing with the information was in the public interest (see subsection (7)); or
was acting at the direction or under the instructions of a person who held such a belief
Amend s122.5(6)(b) so that it only relates to a person undertaking an activity which falls within subsections (f), (g), (i) and (j) of the definition of ‘deals’ with activity (h) ‘communicates’ excluded by operation of section 122.4A(2)(a).
Finally, the joint media organisations recommended framing proposed section 122.5(6) as an exemption for public interest reporting, rather than as a defence. The organisations submitted:
While the evidentiary burden may be the same for a defence and an exemption we continue to hold that to minimise the chilling effect on public interest reporting it would be significantly better to have an exemption rather than a defence.
Responding to the joint media organisations’ supplementary submission, the Attorney-General’s Department stated its view that ‘some of the amendments proposed in that submission are not necessary’, and that the amended Bill ‘strikes an appropriate balance’. The Department noted, however, that it was ‘open to suggestions’ as to how the defence
could be broadened to cover the types of staff who are legitimately involved in the reporting of news media but not so broad that it can cover everyone regardless of whether they are actually connected to that process of reporting the news.
The Department disagreed with the joint media organisations’ suggestion that an exemption would arise at a different point of the process than a defence. The Department stated that ‘an exception operates in precisely the same way as a defence’, and that defences are considered by both the Australian Federal Police and the Director of Public Prosecutions in determining whether to prosecute or investigate and offence.
The Director-General of Security cautioned against any proposal to exempt journalists from the provisions, noting that ‘if that particular class is exempt from the legislation it will automatically become a target for foreign intelligence services’. ASIO considered that such an exclusion would ‘fundamentally undermine the effectiveness of the legislation’.
In addition to journalists, many participants in the inquiry considered that the secrecy offences in the Bill should not apply to journalists’ sources and other whistleblowers who disclose information outside internal government mechanisms, such as the Public Interest Disclosures Act 2013 (PID Act).
In its submission, the Attorney-General’s Department summarised the range of internal mechanisms available to whistleblowers who are Commonwealth officers:
In relation to whistleblowing, the secrecy regime ensures that a person can deal with information in order to make a disclosure to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman or the Law Enforcement Integrity Commissioner. The Bill also ensures that secrecy offences do not apply if a person communicates information in accordance with the Public Interest Disclosure Act 2013. These are well established processes for ensuring Commonwealth officers can report misconduct or corruption within the public sector, without publicly disclosing information. If a person makes the decision to disclose information that is inherently harmful or is likely to cause harm to Australia’s interests outside of these processes, it is appropriate that they should be subject to the application of the secrecy offences.
The Human Rights Law Centre regarded the internal disclosure mechanisms, such as the PID Act, as providing inadequate protection for the purpose of the general secrecy offences in the Bill:
The first element of a proportionate approach is the existence of robust processes for lawful public interest disclosure by government employees and others who are in possession of government information. The best way to ensure a balance between government accountability and protecting information, the release of which would cause serious harm to a public interest, is to provide a sufficiently independent lawful release valve for information in the public interest, immune from sanctions. This reduces the need for a whistleblower to engage in unauthorised sharing of information to, for instance, expose malfeasance or dishonest information provided to the public by a politician. A complement to the internal avenue for public interest disclosure is the ultimate power of a court to determine, in the event of external disclosure, whether the disclosure, on balance, was in the public interest. This safeguard, which may be very rarely engaged, is necessary in the event that internal processes are ineffective, delayed or compromised. It is especially vital where a person is facing criminal conviction, rather than, say disciplinary action or the loss of employment.
The Centre considered that the ‘sheer breadth’ of the Bill’s secrecy offences created ‘significant risks’ that the defences in proposed section 122.5 would ‘not sufficiently protect the public interest’. It noted several ‘gaps’ between the protection available in the PID Act and the provisions of the Bill. These gaps included that while the secrecy offences in the Bill apply to any person, the PID Act is only available to public officials (as defined in the Act). The Centre suggested that the most ‘obvious and logical’ way to address this gap was to limit the offences to the same set of public officials that are covered by the PID Act, with more limited subsequent disclosure offences applicable to other persons.
Several participants in the inquiry—including the Law Council of Australia and the Human Rights Law Centre—called for there to be a general ‘public interest’ defence available to protect disclosures that are made outside the Commonwealth government’s internal whistleblowing mechanisms.
The Law Council pointed out that the defences in proposed section 122.5 would not capture disclosures made under private sector whistleblower laws, for example under the Corporations Act 2001.
The Committee sought further information from the Attorney-General’s Department in response to the concerns raised by submitters about the lack of protection for external whistleblowers. The Department advised:
There are established mechanisms for Commonwealth officers to make public interest disclosures under the Public Interest Disclosure Act. The inclusion of a general public interest defence would disrupt the primacy of the Public Interest Disclosure Scheme as the mechanism for making disclosures of information.
The defence in subsection 122.5(4) could be broadened to cover other Commonwealth public interest disclosure schemes. The department notes however that neither it nor submissions have identified circumstances in which whistleblowers under other schemes would be dealing with inherently harmful information or information that causes harm to Australia’s interests.
At a subsequent public hearing, the Law Council of Australia identified that reporting the misuse of power in a police investigation—which could be said to be ‘interfering’ with the investigation—is an example of conduct that could be captured by the provisions of proposed section 122.2, but for which there would not currently a public interest defence available in the Bill.
In response, the Department acknowledged that the PID Act would not cover this type of whistleblowing, but stated that
it doesn’t mean that there aren’t means to bring that malpractice, corruption or whatever is alleged to the appropriate authorities without publication of it in the media.
Information that has been previously communicated or made public – subsections 122.5(2) and (8)
The Attorney-General’s Department noted that the secrecy offences in the Bill ‘are not intended to impact on free and open public discussion and debate of issues or information already in the public domain’. It highlighted the two defences available in the Bill’s secrecy provisions in relation to information that has previously been communicated or made public:
proposed subsection 122.5(2), in relation to all of the secrecy offences, where ‘the information in relation to which the offence is committed is information that has already been communicated or made available to the public with the authority of the Commonwealth’, and
proposed subsection 122.5(8), in relation to the secrecy offences concerning communication of information, where
a person did not make or obtain the information by reason of his or her being a Commonwealth officer, being otherwise engaged to perform work for a Commonwealth entity, or under an arrangement or agreement with the Commonwealth, and
the information has already been communicated, or made available, to the public (the ‘prior publication’), and
the person was not involved in the prior publication, and
at the time of the communication, the person believes that the communication will not cause harm to Australia’s interests or the security or defence of Australia, and
having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
The defence at subsection 122.5(2) is intended to apply to information communicated ‘to the public at large, to a segment of the public, or to individual members of the public or a segment of the public on request’, ‘even if no member of the public actually obtains or collects the information’. This includes, for example,
information included in a speech or interview given in public or to a professional forum,
information posted on a publicly-accessible website, even if no one visits the website, and
information members of the public are entitled to request access to, even if no members of the category do request access to it.
The defence at subsection 122.5(8) is drafted in similar terms to the prior publication defence contained in subsection 35P(3A) of the ASIO Act, which was inserted following a recommendation of the then- Independent National Security Legislation Monitor, the Hon Roger Gyles AO QC. An example of where the defence would apply includes where a person communicates information about law enforcement operation conducted in public. The Explanatory Memorandum provides the following example where further publication of information already in the public domain could cause harm:
[W]here information is brought into the public domain inadvertently, such as where a security classified document or information provided to the Australian Government in accordance with a legal obligation is revealed as a result of a technical or administrative error. Where steps are quickly taken to reverse the disclosure, subsequent publication of that information is likely to bring that information to the attention of a much greater number of people and could result in considerable new or additional harm.
Several participants in the inquiry raised concerns about the about the defence at proposed subsection 122.5(2) being limited to information made public ‘with the authority of the Commonwealth’. For example, Australian Lawyers for Human Rights submitted that it was ‘not clear how a defendant will know whether or not this is the case’. The joint media organisations argued that ‘it should be a defence that the information has already been communicated or made available to the public—regardless of the status of the Commonwealth’s authorisation of that information’. One submission noted that, due to the limitations in both of the prior publication defences, it would be an offence, carrying a penalty of up to 10 years imprisonment, to buy a copy of a newspaper containing an article containing ‘inherently harmful information’.
The Australian Human Rights Commission agreed that limiting the defence to information made public ‘with the authority of the Commonwealth’ was ‘not really in accord with’ principle 17 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. The Johannesburg Principles state:
Once information has been made generally available, by whatever means, whether or not lawful, any justification for trying to stop further publication will be overridden by the public’s right to know.
The Commission noted that communication of information that has already been made public through unauthorised disclosure will ‘not necessarily further harm the interests of the Commonwealth’. It recommended that the defence provisions ‘be drafted to ensure they apply to (at least) disclosures of information that is already widely known or easily accessible’.
In relation to the defence at proposed subsection 122.5(8), the Australian Lawyers Alliance submitted that the requirement for a person to believe, on reasonable grounds, that their communication will not cause harm to Australia’s interests or the security or defence of Australia ‘is an extraordinarily high bar for a defendant to reach in seeking to defend their actions’. The Alliance expressed the view that it should be up to the prosecution to show that the defendant had intended to cause harm.
The joint media organisations submitted that the requirements of paragraphs 122.5(8)(d) and (e) would ‘intimidate news organisations from being the first to publish’ and lead to ‘a substantial chilling of public interest journalism’.
The Attorney-General’s Department explained why the requirements of paragraphs (d) and (e) were necessary as follows:
Just because information has previously been published anywhere does not mean that further publication of that information can’t cause significant harm. The obvious example is a document leaked that discloses the identities of Australian intelligence officers around the world. In fact, subsequent publication will amplify the harm that can come from that disclosure by making it more broadly available and therefore leading to much graver risks of harm to those individuals.
Similar to above discussion relating to oversight bodies, concerns were also raised that the defence at proposed section 122.5(8) is limited to communication of information, and does not cover other dealings. The Committee noted that there appeared to be no defence available for a member of the public who downloads a copy of a leaked document from a whistleblowing website in order to view it (i.e. the person has ‘dealt with’ the information); but that a defence would become available if that same person also emailed a copy of the document to some friends (i.e. the person has communicated the information). The Department advised that the defence at section 122.5(8) ‘could be explicitly extended to cover a broader range of dealings’, but noted the ‘significant risks attached to inappropriate storage or handling of such information’.
Information relating to a person – subsection 122.5(9)
Proposed subsection 122.5(9) provides a defence against the secrecy offences in relation to dealing with (i.e. including communicating) information if:
a person did not make or obtain the information by reason of his or her being a Commonwealth officer, being otherwise engaged to perform work for a Commonwealth entity, or under an arrangement or agreement with the Commonwealth, and
the person believes that their making or obtaining of the information was required or authorised by law, and
having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief, and
the person communicates the information to the person to whom it relates; the person is the person to whom the information relates; or the dealing is in accordance with the express or implied consent of the person to whom the information relates.
The Law Council of Australia recommended that this defence be reconsidered. The Law Council referred to the ALRC’s consideration that this kind of disclosure was
not appropriate in all circumstances, noting that it may be sensitive for other reasons—for example, it may be personal information about one individual that is relevant to an ongoing investigation into the criminal activities of another individual.
The Attorney-General’s Department responded that it
believes this defence is necessary and prevents the criminal offences from operating too broadly, in situations where a person has consented to their information being dealt with, even if it is inherently harmful information.
The Department referred to the following examples in the Explanatory Memorandum in which it was intended that the defence would ‘ensure that a person is not inappropriately subject to criminal liability’:
Example 1: Person A give[s] taxation information to the Australian Taxation Office as part of their income tax return, as required by section 161 of the Income Tax Assessment Act 1936. Person A then communicates the same information to their bank, as part of an application for a mortgage.
Example 2: Person B is the accountant for Person C. Person B has lodged Person C’s income tax return on Person C’s behalf. Person B gives Person C a copy of the tax return as lodged.
Example 3: Person D has received a notice issued under an Act requiring them to provide a Commonwealth agency with information that relates to Person D. Person D gives the agency the information specified in the notice. The Act does not contain a specific secrecy provision limiting the disclosure of information about the notice. Person D subsequently shows Person E the notice and the information that Person D gave to the agency in accordance with the notice.
The submission from Ms Valerie Heath also noted the current lack of a defence providing for the disclosure to or receipt by a lawyer of information ‘for the purpose of the person receiving legal advice about how to make a protected disclosure’.
The Law Council of Australia recommended that an exception be included in the Bill where conduct is engaged in for the purpose of obtaining legal advice in relation to a matter the subject of an offence. The Law Council submitted:
This is particularly important given the definition of ‘causing harm to Australia’s interests’ in proposed paragraph 121.1(c) includes ‘harm or prejudice Australia’s international relations in relation to information that was communicated in confidence’. This would potentially capture a lawyer engaged to represent a government, authority or organisation, who communicates or receives information on behalf of their client.
The Department responded:
It is not the intention to cover situations where a person is seeking legal advice about their ability to make a public interest disclosure or in relation to the application of the defences.
The Committee asked the Department whether the defence in proposed subsection 122.5(9) (as discussed above) was intended to allow a person to deal with information for the purpose of seeking legal advice. The Department responded:
It is not the intention of the offences to cover situations where a person is seeking legal advice about their ability to communicate information, or the application of the offences. A specific defence could provide clarity in relation to such activities.
The Law Council also recommended that the provisions include an exception, similar to the exception in paragraph 35P(3)(b) of the ASIO Act, providing that the offence provisions ‘do not apply if the disclosure was for the purposes of any legal proceedings arising out of or otherwise related to the Division or of any report of any such proceedings’.
The Department responded as follows:
The existing defence at subsection 122.5(5) relating to provision of documents to a court or tribunal ensures that the offence does not criminalise making disclosures of information for the purposes of legal proceedings.
As noted earlier, the broad range of conduct captured by the Bill’s secrecy offences means that it is essential that a robust set of defences (or exceptions) is available for innocuous conduct. While the Bill currently contains a range of defences that cover many of these circumstances, evidence during the inquiry suggested that further amendments are required to address gaps in the available defences and ensure the offences are appropriate targeted. In making recommendations, the Committee is mindful to ensure that the provisions remain effective in deterring unauthorised dealings with sensitive information.
Proposed subsection 122.5(1) provides a defence for persons exercising powers, or performing functions or duties, as Commonwealth officers (or persons otherwise engaged to perform work for a Commonwealth entity). The subsection also provides a defence for conduct in accordance with an arrangement or agreement with the Commonwealth that allows for the exchange of information.
The Committee notes the particular difficulty that the IGIS and her staff could face in meeting the evidential burden for the defence in 122.5(1) due to their specific legislative obligation not to disclose information obtained in the course of their duties to any person, or to a court. The Committee recommends that the Bill be amended to take these circumstances into account.
The Committee recommends that the Bill be amended to ensure that staff of the Inspector-General of Intelligence and Security are appropriately protected, noting the limitations on the Inspector-General and members of staff of the Inspector-General giving evidence under the Inspector-General of Intelligence and Security Act 1986. The Committee recommends that this amendment be developed in consultation with the Inspector-General and her Office.
Defences limited to communication of information
Several participants in the inquiry pointed out that while the Bill includes offences that cover both communications and broader ‘dealings’ with certain information, several of the defences in Bill only extend to communications. While noting that there are risks associated with broadening the defence to all dealings, the Committee considers it would be unacceptable for there to be a defence available for a person to communicate information to certain entities, but no defence available for that person to deal with that information as they prepare to communicate it.
The Committee recommends that the following proposed defences be broadened to cover all dealings with information, rather than being limited to communication of information:
proposed section 122.5(3) – relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner,
proposed section 122.5(4) – relating to the Public Interest Disclosure Act 2013,
proposed section 122.5(5) – relating information provided to a court or tribunal, and
proposed section 122.5(8) – relating to information that has been previously communicated.
Public interest defence for journalists
The Committee notes the views of a range of participants in the inquiry that the defence at proposed subsection 122.5(6) of the Bill is too narrow and subjective. The Committee therefore welcomes the Attorney-General’s proposed amendments to the Bill which remove the requirement for journalists to demonstrate that their reporting was ‘fair and accurate’ and extends the defence to a broader range of staff.
The Committee notes that the joint media organisations have expressed a small number of remaining concerns about the drafting of the defence, and considers that that further refinement may be required. This includes refinements in relation to the breadth of news media formats covered by the defence; the extent to which editorial support staff are included; and the requirement for support staff to hold a belief in relation to the public interest. The Committee recommends that the Government consider further amendments to the proposed defence in order to address these concerns.
The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.
The Committee also recommends that the Government consider further refinements to the proposed defence in order to
make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,
ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and
allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.
The Committee notes the Attorney-General’s and his Department’s advice that reframing the defence as an exception would make no practical difference. In either case, the evidential burden would be on the defendant to adduce or point to evidence that suggests a reasonable possibility that the defence or exception applies, after which the prosecution would need to disprove the defence or exception beyond reasonable doubt.
The Committee also considers that it would not be appropriate to recast the defence as an element of the offence. As journalists are not public officials, and would only deal with information subject to the offence at proposed section 122.4A on an exceptional basis, it would burdensome and costly for a prosecution to be required to prove in all cases that the defendant is not a journalist engaged in public interest reporting.
Moreover, the Committee does not support any proposal to entirely exempt journalists from the provisions. The Committee particularly notes the Director-General of Security’s concerns that such an exemption would make journalists a target for foreign intelligence services and ‘fundamentally undermine the effectiveness of the legislation’.
The Committee notes that the effect of proposed subsection 122.5(7) is to place limits on the conduct that may be reasonably believed to be in the public interest for the purpose of the defence for journalists at subsection 122.5(6). However, the inclusion of both subparagraphs of paragraph 122.5(7)(d) gives rise to technical difficulties in the Bill, primarily due to use of similar language in the elements of the offence (see the Attorney-General’s proposed section 122.4A(1)(d)(iv)). Noting these difficulties, and given that the defendant would already need to convince the court that dealing with or holding of information was in the public interest, the Committee does not consider either limitation on the availability of the defence to be necessary.
The Committee recommends that the Bill be amended to remove proposed paragraph 122.5(7)(d), which currently limits the availability of the defence for persons engaged in reporting news.
Defences for whistleblowers
The Committee acknowledges the concerns of a number of participants in the inquiry that while a public interest defence is available to journalists, there is not an equivalent defence available to other persons acting in the public interest.
The Committee notes that the Public Interest Disclosure Act 2013 (PID Act) provides clear processes for Commonwealth officers to report wrongdoing and maladministration in the public sector. Communications under the PID Act are appropriately covered by the defence at proposed subsection 122.5(4). The Committee supports the primacy of the PID Act as the mechanism for Commonwealth officers to disclose information concerning wrongdoing and maladministration, and considers that introducing a broader public interest defence that extended to Commonwealth officers would undermine this role.
While there is not an all-encompassing public interest defence in the Bill for non-Commonwealth officers, there are a range of defences available to those who have a legitimate need to deal with information captured under the proposed secrecy offences.
Of these defences, the Committee notes that the defence for information that has already been communicated at proposed subsection 122.5(8) appears to be intended to provide the broadest protection for non-Commonwealth officers. As the defence applies to information that has ‘already been communicated, or made available to the public’, it would protect a person who is not a journalist from being guilty of a secrecy offence as long as they
were not involved in the prior publication/communication, and
believed, on reasonable grounds, that their communication of (or other dealing with, if the above recommendation is accepted) the information will not ‘cause harm to Australia’s interests’.
For example, the defence could protect a member of the public who downloaded, copied or shared ‘inherently harmful information’ that had been previously published on the internet as a result of an unauthorised disclosure, so long as the person believed their conduct would cause no further harm. Similarly, a member of the public who received and passed on classified information that had been misplaced due to an administrative error, such as in the recent high-profile example of the ‘Cabinet Files’, would have a defence if the person believed their handling of the documents did not ‘cause harm to Australia’s interests’.
Accordingly, the Committee does not consider that an additional, more broadly drafted public interest defence is necessary in the Bill.
However, the Committee notes that, as discussed above, the definition of ‘cause harm to Australia’s interests’ includes to interfere with or prejudice the prevention, detection, investigation, prosecution and punishment of Commonwealth criminal offences, and other AFP functions under the Australian Federal Police Act 1979 and the Proceeds of Crimes Act 2002. As a result, proposed subsection 122.5(8) may not protect a person who wished to report misconduct or maladministration in, for example, the investigation of a Commonwealth criminal offence, as it would be difficult for that person to claim that their reporting of the wrongdoing did not interfere with the investigation.
While the defence at proposed subsection 122.5(3) would cover reporting to the Australian Commission for Law Enforcement Integrity, the Committee considers a stronger defence is necessary to cover the full range of organisations that may be involved in the prevention, detection, investigation, prosecution and punishment of Commonwealth criminal offences. This may include, for example, a member of the public reporting misconduct by a police officer to a more senior officer in the same police force; or reporting to a state oversight body maladministration in the use of information shared by the Commonwealth to a state police force.
The Committee recommends that the Bill be amended to provide for a defence for a person who reports, to an appropriate entity, malpractice or maladministration in the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth or the functions of the Australian Federal Police under paragraph 8(1)(be) of the Australian Federal Police Act 1979 or the Proceeds of Crimes Act 2002.
Defence for legal advice
The Committee notes concerns that the defences in the Bill do not appear to cover dealing with information for the purpose of seeking legal advice, for example, about the application of the secrecy provisions. The Committee supports the Attorney-General’s Department’s suggestion that such a defence could be included.
The Committee recommends that the Bill be amended to include a defence for dealing with information for the purpose of obtaining legal advice.
Interactions with other legislation
Participants in the inquiry raised questions about the Bill’s interaction with other legislative frameworks, in particular:
the Freedom of Information Act 1982 (the FOI Act),
the Privacy Act 1988 (the Privacy Act),
the Ombudsman Act 1976 (the Ombudsman Act),
the Inspector-General of Intelligence and Security Act 1986 (the IGIS Act), and
the Public Interest Disclosure Act 2013 (the PID Act).
Interaction with the FOI Act and Privacy Act
As noted above, the Human Rights Law Centre pointed out in its submission that the breadth of the proposed secrecy offences is such that ‘they criminalise the disclosure of information to which Australians have a right to access under the FOI Act’. The Law Council of Australia recommended that the proposed secrecy provisions should expressly indicate whether they override the FOI Act and how they will interact with obligations under the Privacy Act.
The Attorney-General’s Department responded that the defences in subsections 122.5(1) (official duties) and subsection 122.5(2) (information made public with the authority of the Commonwealth) will apply if a person is disclosing information under the FOI Act or Privacy Act in the proper performance of his or her functions.
The Australian Information Commissioner recommended that a note be included in the Bill, or additional information included in the Explanatory Memorandum, to clarify that the secrecy provisions are not intended to impact on Australian Privacy Principle 12 and the Privacy Act, including the Notifiable Data Breaches scheme. The Department responded:
The department’s view is that the secrecy offences do not override these provisions. Indeed, these provisions may be an example of the types of requirements that would indicate that a person’s activities were authorised by law or part of their duties (for the purposes of the defences in section 122.5). This could be clarified in the Explanatory Memorandum.
As discussed above, the Information Commissioner also recommended that a defence similar to that proposed in section 122.5(3) be included in the Bill to cover the communication of information to his office.
Interaction with the Ombudsman Act, IGIS Act and PID Act
More broadly, the Commonwealth Ombudsman noted that the maximum penalty for an agency staff member failing to comply with a requirement to provide information under section 9 of the Ombudsman Act is three months imprisonment or 10 penalty units. In comparison, the maximum penalty for disclosing ‘inherently harmful information’ in the Bill is 15 years imprisonment. The Ombudsman submitted:
Agency staff members may find themselves in a dilemma about which piece of legislation has priority and resolve the problem by opting to transgress the provision with the lesser penalty, with the effect that information required by my office to fulfil my functions is not provided.
The Acting Ombudsman, Ms Jaala Hinchcliffe, expanded on this concern at a public hearing:
[W]e have a coercive power under section 9 of our act, which enables us to provide in effect a notice to produce documents. We don’t usually use that power to obtain information. We usually use our power under section 8, which is a request for information to be provided, but we can use our section 9 power … The point that we’re making in our submission is the potential for a Commonwealth official who has been requested to provide documents under that power to be concerned about the potential to commit an offence under these new secrecy provisions in providing that information to us, which has a significantly larger penalty than the penalty in our act for failure to produce.
The Ombudsman expressed similar concerns in relation to the PID Act, for which he considered the reliance on a defence to a serious offence could discourage the making of disclosures. The Ombudsman supported the inclusion of a provision in the Bill clarifying that the existing immunities in section 24 of the PID Act and sections 7A, 8 and 9 of the Ombudsman Act are not affected.
Similar concerns were also raised by the IGIS, who suggested the secrecy provisions may override existing immunity provisions in the IGIS Act and PID Act:
Proposed Division 122 of the Criminal Code does not expressly deal with the interaction of the proposed provisions and existing ‘secrecy override’ clauses in other legislation, including s 24 of the PID Act and s 18(9) of the IGIS Act. There is a risk that the proposed secrecy offences could be interpreted as overriding such provisions. This would mean that people making PIDs to the IGIS and those cooperating with IGIS inquiries could potentially be exposed to criminal liability or at the very least may have doubt about their legal position and concern about the need to rely on the proposed defences with their obligation to discharge the evidential burden. The proposed scheme provide[s] a lesser degree of protection than the immunity from liability that is currently available under s 18(9) of the IGIS Act or s 24 of the PID Act. The reduction of clear legal protections may reduce the willingness of people to provide information to the IGIS.
The IGIS encouraged the Committee to consider a ‘relationship of laws provision’ in the Bill to provide that the proposed offences are not intended to override the immunity from liability provisions in the IGIS Act and PID Act.
Responding to the concerns raised by the IGIS and Ombudsman, the Attorney-General’s Department advised:
The department continues to consider the interaction of the defences and immunities in light of the comments raised by [sic] in the submissions made by the Commonwealth Ombudsman and the IGIS. It may be possible to add a provision to Division 122 to make clear on the face of the Criminal Code that the enactment of the defences is not to be taken as reflecting an intention that they impliedly repeal or otherwise affect any other immunities.
Alongside proposed amendments to the Bill that were provided to the Committee on 5 March 2018, the Attorney-General indicated that his ‘initial view’ was that the Bill should be amended by inserting a provision clarifying that that the defences to the secrecy offences in Schedule 2 do not affect any immunities that exist in other legislation. The Attorney-General advised the Committee:
My view is that it is not necessary to amend the defences in subsections 122.5(3) or (4) so that they are exceptions rather than defences. Consistent with the principles of criminal responsibility in Chapter 2 of the Criminal Code, there is no practical difference between a defence and an exception. The effect of both types of provisions is that a person is not criminally responsible for an offence. Under subsection 13.3(3) of the Criminal Code, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The evidential burden applies whether a particular matter is framed as a defence or an exception.
The IGIS expressed her support, in principle, for the Attorney-General’s proposal. However, the IGIS commented that ‘rules regarding the allocation of evidential burden are not relevant to concerns about the framing of the offences and defences raised in my submission’:
My concern is to eliminate the potential for uncertainty or argument as to whether the offences impliedly abrogate existing immunities and replace them with offence-specific defences. I am also concerned about the non-legal risk that people may be less willing to come forward to IGIS if they must rely upon a defence to a serious criminal offence to do so.
The IGIS added that, unlike the Ombudsman Act, there is currently no immunity in the IGIS Act for persons who provide information to the office of the IGIS voluntarily outside the PID Act:
While there are circumstances in which a person who provides information to my Office will be subject to the immunity in section 10 of the PID Act because their communication is a PID, not all persons who disclose information to my Office do so by way of making a PID. This may be because the person is not a ‘public official’, or because their disclosure does not relate to ‘disclosable conduct’ by the relevant agency within the meaning of the PID Act, or because the disclosure is not made to an ‘authorised officer’ under the PID Act.
These persons are currently protected by an absence of applicable criminal offences to their conduct in communicating information to my Office, rather than a positive statutory immunity. The offences in proposed section 122.1 of the Bill will, if enacted in their present form, change this position.
The IGIS asked that consideration is given to extending the statutory immunities under the IGIS Act to persons who provide information voluntarily, making clear ‘preferably by its express terms, an intention for the immunity to prevail over laws that would otherwise expose the person to a penalty’.
As outlined in Chapter 4, the proposed secrecy offences relating to communication carry maximum penalties of imprisonment for 15 years, or 20 years for aggravated offences. This contrasts with the existing penalty of two years imprisonment for the equivalent ‘official secrets’ offence in section 79 of the Crimes Act, or up to seven years if the offence is carried out with an intention to prejudice the security or defence of the Commonwealth. The penalties in the Bill also contrast with the ALRC’s recommendation that the maximum penalty for the general secrecy offence be ‘seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both’.
The proposed offences concerning ‘other dealings’, proper places of custody and lawful directions carry maximum penalties of imprisonment for five years, or 10 years for aggravated offences.
Some participants in the inquiry considered the penalties proposed in the Bill to be excessive. The Human Rights Law Centre submitted that the ‘dramatic increase in penalties’ would ‘generate a chilling effect across a wide range of matters of public interest’:
If Schedule 2 is passed, a person who handles or discloses information in relation to the Commonwealth government faces the prospect of severe penalties. Even if defences are available, or the information may not be captured, they necessarily face the uncertainty of how the law would apply to them, and whether arrest and prosecution may proceed. The regime in Schedule 2 is focused exclusively on deterring the disclosure of government information. It is not in keeping with the values of open government, and encouraging Commonwealth employees to understand government information as ordinarily public information, except in select circumstances.
The Centre also noted the ‘wide range’ of disciplinary or employment based sanctions that could be applied to government employees engaged in the unauthorised disclosure of information.
The Explanatory Memorandum states that the maximum penalty for communication of information ‘needs to be adequate to deter and punish a worst case offence’. In the case of communication of information causing harm to Australia’s interests, the Explanatory Memorandum states that the worst case offence could include the ‘communication of official information with the intent of compromising a major law enforcement or national security investigation, or that results in the death of, or serious injury to, a large number of people’. For communication of inherently harmful information, the Explanatory Memorandum states that the worst case offence could include ‘intentional or corrupt disclosures of inherently harmful information, and disclosures that may irreparably damage the defence or security of Australia for decades’.
The Law Council of Australia recommended that, in the absence of an express harm requirement, the secrecy offences should cascade in penalty and require that a person knew, or as a lesser offence, was reckless as to whether, the protected information falls within a particular category. The Human Rights Law Centre similarly suggested that offences could be staggered so that disclosures occasioning loss of life had more severe maximum penalties than other disclosures.
Attorney-General’s consent to institute proceedings
The Bill does not propose requiring the Attorney-General’s consent for prosecutions of the secrecy offences in Schedule 2. This is in contrast to the existing ‘official secrets’ offences in section 79 of the Crimes Act.
The proposed secrecy offences also contrast with the proposed offences for espionage, theft of trade secrets, foreign interference, sabotage and other threats against security in Schedule 1 to the Bill, all of which contain a consent requirement. In relation to those offences, the Attorney-General’s Department described the requirement for Attorney-General’s consent for prosecutions as a ‘further safeguard’. It noted:
In deciding whether to consent to the prosecution of an offence the Attorney-General must consider whether the conduct in question was authorised and therefore whether the accused has a defence available. In this respect a proposed prosecution is scrutinised from both the prosecution and defence perspectives, and a judgment made about the appropriateness of the prosecution, having regard to the facts of the case and the scope of authorised conduct. This individualised assessment prior to prosecution is intended to ensure that proceedings are only commenced where the Attorney-General has assessed that it is appropriate to do so in all the circumstances.
The Committe asked the Department why the Attorney-General’s consent was not proposed to be required for secrecy-related prosecutions. The Department responded:
The Attorney-General’s consent is commonly required to commence proceedings that could affect Australia’s international relations or national security. These are considerations that the Commonwealth Director of Public Prosecutions is not able to take into account under the Prosecution Policy of the Commonwealth.
Such provisions provide the Attorney-General with an opportunity to receive advice from relevant agencies and other Ministers on sensitivities that might arise if proceedings are commenced for offences, and provides opportunity for consideration of whether the prosecution could be detrimental to Australia’s foreign relations and national security.
Secrecy offences do not inherently raise such considerations.
The prosecution policy of the Commonwealth states:
There are a variety of reasons for the inclusion of such consent requirements in legislation, but all are basically intended to ensure that prosecutions are not brought in inappropriate circumstances.
… In some cases the consent provision will have been included as it was not possible to define the offence so precisely that it covered the mischief aimed at and no more. Other cases may involve a use of the criminal law in sensitive or controversial areas, or must take account of important considerations of public policy. In appropriate cases the decision whether to consent to a prosecution is made after consultation with a relevant department or agency.
In its 2009 report, the ALRC considered the question of whether the Attorney-General’s consent should be required for prosecutions under the general secrecy offence. A requirement for the Attorney-General’s consent appeared to be supported by the Attorney-General’s Department and the Australian Intelligence Community at the time. However, the ALRC did not recommended including such a requirement, citing concerns that it had previously raised about the political nature of consent requirements in the context of sedition laws.
Under Schedule 4 to the Bill, discussed in Chapter 10, enforcement agencies will be able to apply for a telecommunications interception warrant for the purpose of investigating any of the secrecy offences in the Bill. Currently, telecommunications interception warrants are only generally available in relation to secrecy offences carrying a penalty of imprisonment for seven years for more.
Under consequential amendments discussed in Chapter 10, all of the secrecy offences in the Bill will be part of the definition of ‘national security offences’ in the Australian Citizenship Act 2007 for which the Minister is obliged to refuse certain citizenship applications made by stateless persons. Currently this obligation only applies to the ‘official secrets’ provisions in section 79 of the Crimes Act, and not the unauthorised disclosures offences in section 70 (which are replicated in proposed section 122.4).
Interaction with other legislation
The Committee notes the Attorney-General’s Department’s evidence that there is no intention for the secrecy provisions to override the obligations and immunities that exist in other legislation. The Committee considers there is scope for further clarity to be included in the Bill on the relationship between these laws.
In relation to the IGIS Act, the Committee notes that, unlike in the Ombudsman Act, there is currently no immunity for persons who provide information to the IGIS office voluntarily and outside of the PID Act. As the Bill introduces serious criminal offences that capture a broad range of dealings with Commonwealth information, the Committee supports the existing immunities in the IGIS Act being extended to cover the voluntary provision of information.
The Committee recommends that the Bill be amended to clarify that the secrecy offences in Schedule 2 do not override the obligations and immunities included in the:
Freedom of Information Act 1982,
Inspector-General of Intelligence and Security Act 1986, or
Public Interest Disclosure Act 2013.
The Committee recommends that the Inspector-General of Intelligence and Security Act 1986 be amended to extend statutory immunity to persons who voluntarily provide information to the Inspector-General or her office.
The Committee notes that, unlike other offences in the Bill, it is not proposed that the Attorney-General’s consent be obtained prior to the commencement of a prosecution under the secrecy offences. This is in line with the recommendation of the ALRC.
However, the Committee notes that the ALRC’s recommendation was in the context of a narrower set of secrecy offences, which extended only to unauthorised communication of information by Commonwealth officers and included harm-based requirements in all instances. The Committee considers that, noting the broader range of information and conduct captured by the Bill, and its application to all persons, it is appropriate that the Attorney-General be required to consent to any prosecution and consider the applicable defences. Noting the potential for highly sensitive cases to arise, including in relation to journalists and national security matters, this additional layer of scrutiny may help to guard against impacts on freedom of expression.
The Committee recommends that Bill be amended to require the Attorney General’s consent for a prosecution under the proposed secrecy offences in Division 122 of the Bill. In deciding whether to consent, the Attorney-General should be required to consider whether the conduct might have been authorised or is otherwise covered by an exception under any of the proposed defences in the Division.
The Committee notes that the unauthorised disclosure of certain types of information held by the Commonwealth can have very serious implications including, in extreme cases, long term damage to Australia’s security and the safety of a large number of people. While in most cases the damage is likely to be less extreme, it is appropriate that the maximum penalties in the Bill be serious enough to deter these type of disclosures.
The Committee considers that the maximum penalties for the communication offences should be reduced to seven years’ imprisonment, consistent with the ALRC’s recommendation. As a result, the penalties for the dealing offences should also be reduced to three years’ imprisonment, to maintain the current structure of the secrecy offences, which impose a higher maximum penalty for offences involving the communication of information than for offences relating to other dealings. The maximum penalties for the aggravated communications offences, in section 122.3, should be reduced to 10 years’ imprisonment. This would align with the maximum penalties for the communications offences in the Intelligence Services Act 2001. The maximum penalties for the aggravated dealing offences should be reduced to five years’ imprisonment.
Consistent with recommendations of the Australian Law Reform Commission, the Committee recommends that the Bill be amended to reduce the maximum penalty for the secrecy offences in proposed sections 122.1, 122.2 and 122.4A to seven years’ imprisonment for conduct involving communication of information, and three years’ imprisonment for other dealings.
The maximum penalty for the aggravated secrecy offences in proposed section 122.3 should be ten years’ imprisonment for conduct involving communication of information (consistent with the most serious secrecy offences in the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001), and five years’ for other dealings.