This chapter, and the following chapter, discuss the proposed new secrecy offences in Schedule 2 to the Bill.
The proposed secrecy offences were a topic of focus for many participants in the Committee’s inquiry, with concerns centring on the breadth of conduct captured by the offences and limitations in the available defences. In response to these concerns, the Attorney-General proposed a number of amendments to the provisions during the course of the inquiry. The chapters consider the secrecy offences both as outlined in the Bill, and taking into account the Attorney-General’s proposed amendments.
This chapter contains an overview of the provisions and considers
the rationale for the proposed new offences,
evidence received in relation to the Australian Law Reform Commission (ALRC)’s 2009 report, Secrecy Laws and Open Government in Australia,
evidence concerning the breadth of conduct captured by the offences, and
the Committee’s conclusions in relation to these matters.
Overview of the provisions
The Bill repeals the existing general secrecy offences in sections 70 and 79 of the Crimes Act 1914 (the Crimes Act) and replaces them with nine new underlying offences in new Part 5.6 of the Criminal Code:
Table 4.1: Secrecy offences
Inherently harmful information – communicating
Inherently harmful information – other dealings
Inherently harmful information – removed from/held outside proper place of custody
Inherently harmful information – failing to comply with direction
Conduct causing harm to Australia’s interests – communicating
Conduct causing harm to Australia’s interests – other dealings
Conduct causing harm to Australia’s interests – removed from/held outside proper place of custody
Conduct causing harm to Australia’s interests – failing to comply with direction
Unauthorised disclosure of information by Commonwealth officers and former Commonwealth officers
The Bill also provides for aggravated offences carrying an additional five years penalty for each of the above ‘inherently harmful information’ and ‘conduct causing harm’ offences when any of the following circumstances apply:
the information is classified SECRET or above;
the offences involves five or more records with a security classification;
the person alters the document to conceal or remove its security classification;
the record is marked ‘for Australian eyes only’ or has another marking prescribed by the regulations; or
at the time of the offence, the person held a security clearance.
The secrecy offences are limited to information that was made or obtained by a person by reason of his or her being, of having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity. Information is defined in existing section 90.1 of the Criminal Code to mean information of any kind, whether true or false and whether in a material form or not, and includes an opinion and a report of a conversation.
The offences, however, will apply to conduct engaged in by any person, and is not limited to current or former Commonwealth officers.
There are no exceptions contained in the physical elements of the offences. However, offence-specific defences are available in certain circumstances, with the defendant bearing the evidential burden:
Table 4.2: Defences available
Proper place of custody
Commonwealth officer exercising a power; or performing a function or duty (s. 122.5(1))
Dealings with information in accordance with an agreement or arrangement with the Commonwealth (s. 122.5(1))
Information has already been made public with the consent of the Commonwealth (s. 122.5(2))
Communications concerning the Inspector-General of Intelligence and Security, Commonwealth Ombudsman, Law Enforcement Integrity Commissioner and their staff (s. 122.5(3))
Public interest disclosures (s. 122.5(4))
Communicating the information to a court or tribunal (s. 122.5(5))
The person is a journalist, the dealings were for the purposes of fair and accurate reporting, and in the public interest (s. 122.5(6)-(7))
Prior publication: the information has already been communicated, or made available to the public and the person communicating the information reasonably believes their communication will not cause harm to Australia’s interests, security or defence (s. 122.5(8)).
Information relating to a person in certain circumstances (s. 122.5(9))
Rationale for the proposed new offences
The Attorney-General’s Department submitted that secrecy offences ‘are an essential part of Commonwealth criminal law’:
Such offences protect privileged and classified information from being inappropriately disclosed. It is essential for Australia to safeguard such information, including to protect it from being improperly obtained by foreign intelligence services or other malicious actors. The inappropriate disclosure of privileged or classified information could place Australians in danger of grave harm. It could also damage Australia’s essential national interests by, for example, damaging Australia’s international relations or interfering with criminal investigations.
The Department noted that there had been calls for significant reforms to the general secrecy offences in the Crimes Act for ‘many years’, and that the current offences are ‘archaic and difficult to prosecute’:
It is unclear what fault elements attach to which elements of the offence, and whether a successful prosecution under section 79(5) or 79(6) depends on the prosecution’s ability to make out all the elements of another person’s offence under subsection 79(2) of the Crimes Act or section 91.1 of the Criminal Code. The penalties for the offences are also very low – subsection 79(4) (unlawful retention etc.) has a maximum penalty of only six months’ imprisonment. The ‘information’ covered is also narrow and would not include opinions or advice, for example.
In particular, section 70 creates an offence where a person breaches a duty not to disclose information but the section itself does not create such a duty. A person will only commit an offence where a duty can be established elsewhere, for example in the Public Service Act 1999 or other legislative provisions. It is not clear whether this duty must be established by a law or whether a contractual or equitable duty is sufficient to enliven the offence.
The Department also noted that the existing secrecy provisions in the Criminal Code were enacted in their current form in 1960, with only minor amendments made since then. It highlighted the following deficiencies:
Sections 70 and 79 have not been amended to reflect modern drafting styles. They are not consistent with the drafting style of the Criminal Code, which separates each physical element into a separate paragraph, bringing clarity to the physical and fault elements that constitute the offence.
The offences do not reflect the contemporary offending being seen in the modern environment. The threats that the offence seeks to target reflect a 1960s mindset about communication of government information. In the modern environment, the threat extends beyond the passage of facts and documents. Government officials and contractors are commonly targeted (by foreign intelligence services and others) to provide informed comment or opinions. Communication of such information, where it is inherently harmful or is likely to cause harm, should be covered by secrecy offences.
While supporting the repeal of the existing offences, the Human Rights Law Centre questioned whether it was appropriate for the reformed secrecy offences to be included in a Bill focusing on espionage and foreign interference. At a public hearing, Dr Aruna Sathanapally told the Committee that
schedule 2 extends well beyond information emerging from intelligence agencies, or information concerning national security, to information about and held by all types of government agencies.
… By contrast to the case for repealing sections 70 and 79, which is well known and has been called for for a very long time, the need for this specific legislation and the breadth of it is something that, to some extent, has come as a surprise for those of us who have been following secrecy offences. It’s not clear to us why these offences are necessarily in this suite of bills, because they don’t implicate foreign interference. These are offences that attach now to everyone, but in practice really to Commonwealth employees, and there’s no nexus here between this legislation and any foreign agent or foreign person. To some extent, this is a standalone regime that in our view would benefit from a standalone piece of legislation, particularly given the complexity of the issues elsewhere in not only this bill but also the suite of legislation of which it is a part.
At a public hearing, the Attorney-General’s Department described the secrecy offences as ‘an essential bedrock for the national security offences that sit above them’. It explained that the Bill was responding to a ‘large gap in the middle’ between secrecy offences and espionage offences in the current law:
What Commonwealth criminal law does have is espionage offences, but they represent the pinnacle of the criminal activity that occurs in this area, and then we have secrecy offences, which have been discussed this morning, which carry low penalties, haven’t been updated in over 50 years and don’t allow the [Australian Federal Police] to use their most important investigative tools. In the middle, which is where we understand most of the conduct falls, there are no criminal offences that would allow the passage of a matter being seen by an intelligence agency through to a criminal investigation.
That’s not the case in the counterpart countries that we’ve spoken to, where having a broad range of criminal offences that cover the full continuum of criminal conduct allows them to have investigative and prosecutorial flexibility so that they can adopt the most appropriate criminal offence for wherever that is on the offending spectrum, which may be at the initial stages right through to the still very rare high-level espionage prosecutions. It allows them to take into account evidentiary issues where there may be challenges in proving a particular element. For example, the involvement of a foreign principal may be known to investigative agencies but difficult to prove with admissible evidence. What is essential from our perspective is having robust secrecy offences so that, if the link to a foreign principal can’t be proved but the disclosure of highly sensitive material has occurred, there is still a strong prosecutorial option which carries a serious penalty which can punish that conduct but also act as a deterrent and show that you can’t come to Australia and do these activities and not expect to have them matched by serious criminal penalties, if the right circumstances exist.
Australian Law Reform Commission report
In outlining the need for reform, the Attorney-General’s Department highlighted the Australian Law Reform Commission (ALRC)’s 2009 report, Secrecy Laws and Open Government in Australia. This report is referred to several times in the Explanatory Memorandum, and was also referred to by a large number of other submissions to the Committee’s review.
The ALRC’s report was the product of a comprehensive review of secrecy laws and related issues that took place between August 2008 to December 2009. The Commission received submissions and consulted with a wide range of agencies, organisations and individuals.
In its report, the ALRC recommended the repeal of the existing ‘catch-all’ secrecy offences in the Crimes Act and the introduction of a new ‘general secrecy offence’. It’s key recommendation for reform was that ‘the sanctions of the criminal law … should be reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests’. In keeping with this principle, the ALRC recommended that the new general secrecy offence be limited to unauthorised disclosures that are likely 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.
The ALRC proposed that the new general secrecy offence apply to all Commonwealth information and all present and former Commonwealth officers. It recommended separate offences for the subsequent disclosure of Commonwealth information by third parties, where the information was initially disclosed in breach of the general secrecy offence or on terms requiring it to be held in confidence.
The ALRC recommended that there should be exceptions (as opposed to defences) in the general secrecy offence for disclosure in the course of an officer’s functions or duties; disclosure with the authority of an agency head or minister; and disclosure of information that is already lawfully in the public domain.
The ALRC noted that, in addition to the general secrecy offence, there would still be a need for specific secrecy offences tailored to the needs of particular agencies or to the protection of certain kinds of information. The Commission made recommendations concerning the principles that should guide the creation of specific secrecy offences and the review of existing offences.
The Attorney-General’s Department advised that the primary secrecy offences in the Bill were ‘informed by’ the ALRC report, in that they apply to communication (or other dealing) with information that is likely to cause harm. However, the Department acknowledged that the offences based on ‘inherently harmful information’, including security classified information, depart from the ALRC’s recommendations. The Department explained:
The fundamental premise of the ALRC’s consideration of secrecy laws was that disclosures that cause harm should be covered by the criminal law. From our perspective, we would argue that that is what we have implemented, although in a different form to what the ALRC envisaged in its report. We have taken the view that there are categories of information the release of which is inherently harmful, and that is reflected in the bill.
A table comparing the secrecy provisions in the Bill to the model proposed by the ALRC is included at Appendix C. In summary, in addition to offences relating to ‘inherently harmful information’, the secrecy offences in the Bill depart from the ALRC’s recommendations in the following ways:
the general secrecy offences are applied to all persons, rather than only to Commonwealth officers (i.e. subsequent disclosures are not dealt with separately),
a different definition of ‘Commonwealth officer’ is used,
offence-specific defences, rather than exemptions, are provided in relation to conduct in the course of official functions or duties and information that is already public,
the offences relating to ‘inherently harmful information’ and ‘conduct causing harm to Australia’s interests’ (proposed section 122.2) apply to a broader range of information and interests than recommended by the ALRC,
in addition to offences for communication, offences are created for dealing with information, removing information from a proper place of custody and failing to comply with direction regarding information,
higher maximum penalties are imposed than was recommended by the ALRC, and
existing section 70 of the Crimes Act is retained (in amended form), with no existing specific secrecy offences repealed.
At a public hearing, the Department argued that it had followed the ALRC’s report ‘in spirit if not in letter’:
… although the offences in the bill do not exactly replicate the structure put forward by the ALRC, we have taken that as a guiding principle that harmful information is what should be targeted by the criminal law.
Responding to a question about whether anything of material substance had changed since the ALRC report that would cause the Department not to follow the ALRC’s recommendations, the Department noted:
There have been a range of significant disclosures of information internationally since 2009, I believe, when the ALRC report was concluded that have brought into stark relief the consequences that can come from disclosure of information and the ease with which very large tranches of information can be disclosed.
Other submitters to the inquiry were concerned by the Bill’s departures from the ALRC’s recommendations. The Human Rights Law Centre, for example, recommended that Schedule 2 be removed from the Bill and redrafted in line with the ALRC’s recommendations. The Centre’s Dr Aruna Sathanapally told the Committee that while there would need to be coordination with the Public Interest Disclosure Act 2013, which was introduced since the ALRC’s report, ‘the bulk of the ALRC recommendations are still current and relevant and usable’. Dr Sathanapally contended that, despite high-profile leaks of classified information in recent years,
… the principles of maintaining a culture of transparency in government and maintaining a culture that government information is public information, unless there are reasons to the contrary, are things that endure and need to endure for the health of Australia’s democracy. So, even though we of course need offences to deal with serious harm, we should make sure that our offences do deal with serious harm and don’t end up compromising the real strides we’ve made since 1914 in terms of the health of Australia’s democracy, when section 70 was passed. While I appreciate that it has been eight years, I think that there are aspects of the ALRC’s report that would have been timely in 1980.
The Law Council of Australia similarly recommended that the proposed secrecy offences be ‘amended in a manner which is consistent with the ALRC’s secrecy report’. Mr Morry Bailes, President of the Law Council, explained:
We are concerned about three of the four offences being too broad and then turn to the fact that, given that the ALRC produced its report in relation to secrecy and made express findings, all of which, if adopted, would, in our respectful submission, address the difficulties with the Bill as it’s currently drafted. We therefore recommend they be adopted and, again, in our respectful submission, that should not be construed as taking away from the effectiveness of the legislation. There is one instance where, if adopted, an offence would not be established, but it is a truer way of defining what the offences should be in our submission and would result in better law.
The Human Rights Commissioner, Mr Edward Santow, noted that while the Bill replaces some older secrecy provisions in the Crimes Act, the Bill does not implement the ALRC’s recommended ‘overhaul of the approximately 500 secrecy provisions that exist across about 176 pieces of legislation’. Mr Santow urged that this overhaul be undertaken.
Breadth of conduct captured by the offences
Many participants in the inquiry raised concerns about the breadth of conduct captured by the proposed secrecy offences. Specific concerns raised by participants are discussed below.
Breadth of ‘deal with’ offences
Proposed section 122.1(2) makes it an offence to deal with, other than by communicating, ‘inherently harmful information’. Similarly, proposed section 122.2(2) makes it an offence to deal with, other than by communicating, information in a way that does, will or is likely to cause harm to Australia’s interests. For the purpose of these sections, ‘deals with’ is defined to apply when a person ‘receives’, ‘obtains’, ‘collects’, ‘possesses’, ‘makes a record of’, ‘copies’, ‘alters’, ‘conceals’, ‘publishes’ or ‘makes information available’.
Some participants in the inquiry raised concerns about the breadth of conduct captured by the term ‘deals’. The joint media organisations, for example, submitted that the Bill would mean journalists, editorial and support staff are at risk of jail time as a result of merely having certain information in their possession:
For example, a journalist receiving unsolicited information would be in automatic breach …
Expanding on that, if the journalist received such information, how could the journalist determine whether the material is in breach without possessing, communicating, and otherwise dealing with it? A mere discussion of unsighted material might place journalists in breach, notwithstanding that they may then ask others about the information—with or without being in possession of a document.
The joint media organisations highlighted the ALRC’s view that ‘the mere receipt or possession of information should not be covered in the general secrecy offence or the subsequent disclosure offences’.
The Human Rights Law Centre considered that the breadth of the conduct captured by the offences is ‘entirely inappropriate for general criminal offences across all types of information in an enormous range of contexts’, and similarly highlighted the Bill’s discrepancy from the ALRC’s recommendation. The Centre further stated that it was
not clear why ‘dealing’, as broadly defined, needs to be criminalised when preparatory offence provisions exist that would capture attempts to disclose or conspiracy to disclose information.
The Attorney-General’s Department explained at a hearing how each of the individual elements of the term ‘deals’ was arrived at:
As you’ll see in the offences, the communication is treated more seriously than the other dealings, but, in working closely with operational agencies about what they see in the threat environment, the list of matters that are covered by the definition of ‘deals’ reflects their advice on what is actually happening with information that falls within these offences. So, as part of the drafting process, each of those matters was carefully considered as to whether there were harmful case examples that fell within those categories.
The Committee asked the Attorney-General’s Department whether the inclusion of the words ‘receiving’, ‘obtaining’, ‘collecting’ and ‘possessing’ in the definition of ‘deals’ means that a person may have committed an offence simply by being given information that is, for example, security classified. In response, the Department noted that the fault element of ‘intention’ would apply to the physical element that a person communicated or otherwise dealt with information. That is, section 5.2 of the Criminal Code provides that a person has ‘intention’ with respect to conduct if he or she ‘means to’ engage in that conduct.
As noted in the Explanatory Memorandum, to establish an offence under proposed section 122.1(2)—‘other dealings with inherently harmful information’—the prosecution will need to prove beyond reasonable doubt that
the person intentionally deals with information (other than by communicating it),
the information was inherently harmful information (other than security classified information) and the person was reckless as to this element, or
the information was security classified information, and
the information was made or obtained by that or any other person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity and the person was reckless as to this element.
The Law Council of Australia submitted that the secrecy offences required clarification ‘to ensure that innocent receipt of information (e.g. in a filing cabinet) is not captured by the offence provisions’:
The link between the defendant’s intention and the harmful behaviours targeted requires further precision. The limited news media exception may not be made out as it would be difficult for a defendant to demonstrate there was a reasonable belief in the public interest where they are in receipt of the information but have not had the opportunity to consider its contents.
At a public hearing, the Law Council suggested that a possible solution would be to include a clause or note in the Bill that clarifies that innocent receipt of information is not covered by the secrecy offences.
The Department explained that the offences would not apply in the situation of a person merely receiving and opening an envelope, or purchasing a filing cabinet, without any knowledge of what might be in it:
[A] person who does not know what’s in the envelope or does not know what’s in the filing cabinet will not be able to commit this offence. They will not be reckless as to the specific nature of the information. So, the receipt is one element. All elements and all fault elements must be proved, and that factual scenario just will not satisfy the offence.
In addition to its concerns about the innocent ‘receipt’ of information, the joint media organisations raised concerns about the use of other ‘passive’ terms in definition of ‘deal’. The organisations recommended that the terms ‘receives’, ‘obtains’, ‘collects’, ‘possesses’, ‘makes a record of’ and ‘copies’ be excluded from the operation of offences applying to non-Commonwealth officers.
The Committee asked the Department whether ‘deals with’ would extend to a person intentionally viewing or downloading inherently harmful information that has been unlawfully published on the internet by another person. The Department provided the following response:
The department thinks it unlikely that simply viewing information would fall within the definition of ‘deals’. However, it would depend on the specific facts and circumstances of the case.
The department notes that it is somewhat artificial to consider a situation of ‘viewing’ alone, as there would likely be other dealings with the information surrounding the viewing which may fall within the relevant definition.
Depending on the facts and circumstances, downloading information may constitute ‘possession’ of information.
Breadth of ‘inherently harmful information’ offences
‘Inherently harmful information’ is defined in proposed section 121.1 to include any of the following information:
security classified information,
information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia,
information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions,
information that was provided by a person to the Commonwealth or an authority of the Commonwealth in order to comply with an obligation under a law or otherwise by compulsion of law,
information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.
The Explanatory Memorandum states that this definition is intended to exhaustively list categories of information that
are inherently harmful in the sense that
communicating such information,
otherwise dealing in such information ,
removing such information from, or holding such information outside, a proper place of custody for the information, or
failing to comply with a lawful direction regarding the retention, use or disposal of such information,
will, or would reasonably be expected to, cause harm to essential public interests of the Commonwealth.
Proposed section 122.1 creates underlying offences for each of these four types of activities.
A large number of submissions to the inquiry raised concerns about the scope and operation of the ‘inherently harmful information’ offences. In many cases, submitters argued that conduct picked up by the term would not, in fact, be necessarily harmful. Submitters provided a range of examples of otherwise innocent conduct that may be inadvertently captured by these provisions.
Submitters also raised concerns about many of the specific components of the definition of ‘inherently harmful information’.
Security classified information
Many submitters raised concerns about the inclusion of security classified information as paragraph (a) of the definition of ‘inherently harmful information’, including the appropriateness of applying serious criminal offences to security classified information, the lack of definition in the primary legislation, the application of strict liability, and the provision for evidentiary certificates issued by the Attorney-General. As these concerns are also relevant to the espionage offences in the Bill, these matters are discussed separately in Chapter 3.
Information relating to the security or defence of Australia
The Law Council of Australia noted that the term ‘information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia’ provided for a lower standard than that recommended by the ALRC. The Law Council recommended that paragraph (b) be amended to read ‘information the communication of which would, or would be reasonably likely to, damage the security or defence of Australia’.
The Attorney-General’s Department responded that it was ‘not clear that the proposed change could make a material change to the definition’.
The Human Rights Law Centre considered that, because it includes a harm-based test, it would be logical for paragraph (b) to be included in the definition of ‘cause harm to Australia’s interests’ rather than the definition of ‘inherently harmful information’. The Attorney-General’s Department agreed that moving this provision would make the provision somewhat more coherent, but noted that the definition within which it sits ‘wouldn’t make any practical difference’.
Information required to be provided to the Commonwealth by law
Several submitters considered the inclusion of paragraph (d)—’information that was provided by a person to the Commonwealth or an authority of the Commonwealth in order to comply with an obligation under a law or otherwise by compulsion of law’—to be inappropriate. This category would include information required to be provided to a range of Commonwealth agencies and regulators, including:
information that is required to be provided to the Australian Taxation Office by taxpayers in accordance with taxation legislation,
information that is required to be provided to regulatory agencies, such as the Australian Securities and Investments Commission or the Australian Prudential Regulation Authority, under various regulatory regimes,
information requirement to be provided by carriers and carriage service providers to the Communications Access Co-ordinator, in accordance with telecommunications interception legislation, and
information obtained by Commonwealth authorities utilising coercive information gathering powers, including notices-to-produce, production orders, and compulsory questioning.
The Attorney-General’s Department explained:
The purpose of paragraph (d) of the definition of ‘inherently harmful information’ is to ensure that information provided to the Commonwealth under a coercive power or other compulsion is protected. It is considered essential to protect such information where a person has been required to provide it to the Commonwealth, typically under compulsion or penalty for non-compliance. If this information is not adequately protected, it could have the impact of discouraging individuals and companies from providing honest and complete information to the Commonwealth in accordance with an obligation under a law or otherwise by compulsion of law. This harms the ability for Commonwealth authorities to perform their functions.
The Human Rights Law Centre, however, contended:
It is acknowledged that the unauthorised disclosure of information provided to Commonwealth authorities, in certain circumstances, could prejudice the effective operation of government, or personal privacy. However, … other tools are readily available to deal with that policy problem. The criminal law is neither necessary nor proportionate.
Similarly, the Centre for Media Transition at the University of Technology, Sydney, argued that the ‘vast amount’ of information that could fall under this part of the term ‘inherently harmful’ would make the term ‘almost meaningless’. The Centre explained:
The Explanatory Memorandum gives the example of the requirement on carriers and carriage service providers to give information to the Communications Access Co-ordinator in accordance with telecommunications interception legislation. This is a security-related example and may well be justified. But telecommunications companies are also required to provide substantial amounts of information to the [Australian Communications and Media Authority (ACMA)] and the [Australian Competition and Consumer Commission] under legislation which has no connection with security—for example, the consumer protection matters arising under the Telecommunications (Consumer Protection and Service Standards) Act 1999. In the case of the media ownership and control rules mentioned above, under sections 63 and 64 of the [Broadcasting Services Act 1992 (BSA)] a person who comes into a position to exercise control of a broadcasting licence must submit a notification to that effect to the ACMA, as must the licensee of that service. Similarly, broadcasters are required under the BSA to provide information concerning program content to the ACMA. None of this has a connection with espionage.
Information relating to law enforcement agencies
One submission to the inquiry expressed concern that paragraph (e) of the definition of ‘inherently harmful information’—information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency—was ‘so broad as to be draconian’. The submitter considered that the paragraph could ‘curtail any scrutiny or public accountability of law enforcement agencies or their activities’, and ‘could also create great difficulty to a defendant in a criminal matter, where their defence relies [on] any sort of law enforcement operational information’. The submitter explained:
Even routine traffic policing could be construed as an ‘operation’ of a domestic law enforcement agency. If for example I were to be stopped for a random breath test, and if I were to tell anyone of my interaction with the police, in doing so I would likely commit the offence of ‘communicating inherently harmful information’; the ‘harmful information’ in this case being information about a domestic law enforcement ‘operation’.
The joint councils for civil liberties similarly noted that while
[t]his category is appropriate in that it would capture much sensitive, inherently harmful information whose unlawful communication would cause harm to law enforcement agencies operations and capacities and Australia’s essential interests
it would also capture
much information that will have no significant bearing upon the effective operation of law enforcement agencies and is not likely to harm Australia’s essential interests.
The Explanatory Memorandum notes that a person would not be subject to criminal liability for communicating or otherwise dealing with such information in circumstances covered by the defences in section 122.5. In particular, the Explanatory Memorandum notes that proposed subsection 122.5(2) provides a defence where information has already been communicated or made public with the authority of the Commonwealth. The Explanatory Memorandum states:
The concept of making information available to the public includes making information to a relevant segment of the public, and can include making information available to a single person, for example where an operation is conducted in public but witnessed only by a single person. As a result, the inclusion of law enforcement operations within the definition of inherently harmful information is not intended to have the effect of extending criminal liability to persons who communicate information about public law enforcement operations.
Information related to foreign law enforcement and intelligence agencies
The Human Rights Law Centre submitted that it was ‘far from clear’ that disclosure of the information of a foreign law enforcement agency or a foreign intelligence agency, as provided for in paragraphs (c) and (e) of the definition of ‘inherently harmful information’, would inherently damage Australia’s interests. The joint councils for civil liberties similarly recommended that the reference to foreign intelligence agencies be removed from paragraph (c).
The Law Council of Australia recommended that provisions relating to foreign agencies be redrafted to make it clear that the information would, or would be reasonably likely to, harm one of the four essential public interests identified by the ALRC in its Secrecy Report.
The Explanatory Memorandum provides the following explanation of why disclosure of intelligence-related information is considered to be particularly sensitive:
The compromise of information made or obtained by the intelligence services could reasonably be expected to cause serious damage to Australia’s national security. Even small amounts of such information could, when taken together with other information, compromise national security, regardless of the apparent sensitivity of the particular information—this is referred to as the ‘mosaic approach’ to intelligence collection.
For example, even seemingly innocuous pieces of information, such as the amount of leave available to staff members or their salary, can yield significant counterintelligence dividends to a foreign intelligence service.
The particularly sensitive nature of information obtained or generated by intelligence agencies was recognised by the ALRC in its 2009 report. Although not supporting their inclusion in a general secrecy offence, the ALRC expressed the view that specific secrecy offences prohibiting the disclosure of information obtained or generated by intelligence agencies—without the need to prove harm in every case—are justified by the sensitive nature of the information and the special duties and responsibilities of officers and others who work in and with such agencies.
In relation to information provided by foreign agencies, the Attorney-General’s Department argued such information is considered inherently harmful ‘because of the adverse effect it can have on law enforcement and intelligence cooperation’:
If foreign agencies share information with Australia, particularly about their most sensitive operations and techniques, it is essential that it can be appropriately protected. If this information sharing were withdrawn, there would be significant adverse consequences for Australia’s national interest.
Government proposed amendments – inherently harmful information
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 to ‘improve the clarity of offences that apply to current and former Commonwealth officers, most particularly by narrowing the definitions of “causes harm to Australia’s interests” and “inherently harmful information” at section 121.1 of the Bill’. The Committee received draft amendments to this effect from the Attorney-General on 5 March 2018. The proposed amendments in relation to ‘inherently harmful information’ included:
limiting ‘security classified information’ in paragraph (a) to classifications of SECRET or TOP SECRET, or equivalent classifications or markings prescribed by regulations (as noted in Chapter 3),
removing strict liability in relation to security classifications, and
entirely removing paragraph (d)—information that was provided by a person to the Commonwealth or an authority of the Commonwealth in order to comply with an obligation under a law or otherwise by compulsion of law’—from the definition.
The proposed amendments were generally supported by participants in the inquiry.
The Law Council of Australia did not oppose the removal of paragraph (d) from the definition, but submitted that it ‘would be grateful for further clarification from the Attorney-General’s Department as to its purpose’.
Breadth of ‘cause harm to Australia’s interests’ offences
The phrase ‘cause harm to Australia’s interests’ is defined in proposed section 121.1 to mean to:
(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of:
(i) a criminal offence against; or
(ii) a contravention of a provision, that is subject to a civil penalty, of:
a law of the Commonwealth; or
(b) interfere with or prejudice the performance of functions of the Australian Federal Police (AFP) under:
(i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or
(ii) the Proceeds of Crime Act 2002; or
(c) harm or prejudice Australia’s international relations in relation to information that was communicated in confidence:
(i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and
(ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or
(d) harm or prejudice Australia’s international relations in any other way; or
(e) harm or prejudice relations between the Commonwealth and a State or Territory; or
(f) harm or prejudice the health or safety of the public or a section of the public.
As listed above, proposed section 122.2 creates four underlying offences for communicating, dealing with, removing from a proper place of custody or failing to comply with a lawful direction in relation to information in a way that ‘causes harm to Australia’s interests’.
Various submitters to the inquiry raised concerns about the breadth of conduct captured by the offences in proposed section 122.2, and queried whether certain elements of the definition were appropriate.
Interference with or prejudicing criminal investigations
The Centre for Media Transition at the University of Technology, Sydney, submitted that paragraph (a) of the definition of ‘cause harm to Australia’s interests’ would capture ‘matters that are properly the subject of secrecy laws, but would also cover matters that are not’. The Centre cited an example of a journalist investigating media ownership arrangements, including the actions of the Australian Communications and Media Authority.
Interference versus damage or prejudice
The Law Council of Australia noted that paragraphs (a) and (b) of the definition required mere ‘interference’ rather than damage or prejudice. The Law Council considered this to be a ‘much lower’ threshold, which ‘may extend to a broad range of conduct, including innocuous conduct’. The Law Council recommended that the phrase ‘interfere with’ be removed from the paragraphs. A similar point was made by the joint councils for civil liberties.
The Attorney-General’s Department disagreed with the Law Council’s recommendation, arguing that it was important for the secrecy offences to cover ‘interference’ not only ‘prejudice’ to those functions:
If the offences did not cover ‘interference’, the AFP would have to wait for a criminal investigation to actually be prejudiced before being able to investigate the matter as a secrecy offence. This creates risks to the Commonwealth that can be avoided if the AFP is able to intervene at an earlier stage, when the person’s conduct is ‘interfering with’ (but has not yet actually prejudiced) a criminal investigation.
At a public hearing, the Law Council elaborated that its concern with the term ‘interference with’ was the potential for it to ‘impact on freedom of speech in relation to, for example, prosecution malpractice issues’.
Civil penalty contraventions and proceeds of crime legislation
Several submitters expressed concern about subparagraph (a)(ii) and (b)(ii) of the definition of ‘causes harm’, which extends to information relating to civil penalty proceedings and the AFP’s functions under the Proceeds of Crime Act 2002. Submitters highlighted the ALRC’s view that
the general criminal offence should not cover unauthorised disclosures of information that would prejudice the prevention, detection, investigation, prosecution or punishment of a breach of a law imposing penalties or sanctions that are not criminal, and
the general criminal offence should not extend to unauthorised disclosures of information that would prejudice the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue.
The ALRC recommended that, in certain circumstances in which the disclosure of such information may warrant criminal sanctions, specific offences could be used to protect the investigatory process.
The Law Council of Australia recommended that the phrase ‘contravention of a provision, that is subject to a civil penalty, of’ be removed from proposed subparagraph 121.1(1)(a)(ii), or that, as a minimum, the provision be limited to contraventions of serious Commonwealth civil penalty provisions which attract an equivalent civil penalty of 3 years imprisonment.
Responding to this recommendation, the Attorney-General’s Department referred to the Explanatory Memorandum’s account of why the Bill departs from the ALRC’s model to include civil penalty provisions:
When read together with the offence provision in section 122.2, the use of official information to interfere with or prejudice the effective enforcement of a civil penalty provision involves a serious interference with the administration of justice, as well as an improper use of official information that is likely to undermine public confidence in the effective administration of justice. Accordingly, such conduct should be subject to criminal liability.
The Law Council also recommended that the Proceeds of Crime Act 2002 be removed from proposed subparagraph 121.1(1)(b)(ii). It noted that
the ALRC, in its report, fairly clearly spelt out that that should be covered, if it’s needed at all, by a specific secrecy offence rather than in the general secrecy offences which we have here.
In relation to the proceeds of crime legislation, the Explanatory Memorandums states:
[T]he POCA [Proceeds of Crime Act 2002] establishes a civil forfeiture scheme to confiscate unlawfully acquired property, as well as associated powers such as asset freezing. Strong and effective action to confiscate proceeds of crime assists in attacking the profit-motive of organised crime, including illicit activities involving drug trafficking, people smuggling, money laundering and large-scale fraud. The effective performance of the Australian Federal Police’s functions under the POCA is an essential public interest.
… The ALRC considered that it would be more appropriate to rely on specific secrecy provisions in sections 210, 217 and 223 [of] the POCA (which relate to the unauthorised disclosure of information about production orders, notices to financial institutions and monitoring orders). However, those specific secrecy provisions cover only a subset of the kinds of official information that could be improperly communicated to interfere with or prejudice the performance of the Australian Federal Police’s functions under the POCA, and the associated, essential public interests.
Responding to the Law Council’s recommendation, the Attorney-General’s Department added:
It is appropriate for the AFP’s functions under the POCA to be covered in this definition. Strong action to confiscate proceeds of crime assists in attacking the profit motive of organised crime, and the effective performance of these functions is an essential public interest.
Australia’s international relations and relations with states and territories
The inclusion of harm or prejudice to Australia’s international relations [paragraphs (c) and (d)] and relations between the Commonwealth and a State or Territory [paragraph (e)] also attracted comment from submitters.
The Centre for Media Transition, for example, submitted that the inclusion of ‘an international organisation’ in paragraph (c) would extend the laws to ‘any number of entities which might provide information that is confidential but does not concern matters of national security’.
The joint media organisations suggested that reporting on international trade or relations between the Commonwealth and states in relation to Goods and Services Tax distributions could be captured.
The Human Rights Law Centre was concerned that the inclusion of paragraphs (d) and (e) of the definition means that proposed section 122.2
criminalises, with very severe penalties, information that could clearly be a matter of considerable, legitimate public interest, and it is easy to imagine that it would include information that the principles of open government—and the constitutional protection for political communication—would require be freely shared and communicated.
The Explanatory Memorandum to the Bill notes that the term ‘international relations’ has the meaning given in section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004, which is ‘political, military and economic relations with foreign governments and international organisations’. It states that the concept of harming or prejudicing Australia’s international relations includes things such as:
the lessening or cessation of military or intelligence cooperation,
damage to Australia’s negotiating position in respect of a treaty or agreement, or within an international organisation such as the United Nations or an organ thereof,
a reduction in the quality or [quantity] of information provided by a foreign government or international organisation,
loss of confidence or trust in the Australian Government by an overseas government or international organisation,
a detrimental impact on the ability of the Australian Government to maintain good working relations with a foreign government or international organisation, or
intangible damage to Australia’s reputation or relationships between the Australian Government and a foreign government or international organisation, or between officials,
having the effect of diminishing the capacity of the Australian Government to function in the global political, military and economic environment.
The Explanatory Memorandum states that the concept of harming or prejudicing relations between the Commonwealth and a State or Territory includes things such as:
the lessening or cessation of law enforcement cooperation,
a reduction in the quality or [quantity] of information provided by a State or Territory,
loss of confidence or trust in the Commonwealth Government by a State or Territory Government,
a detrimental impact on the ability of the Commonwealth Government to maintain good working relations with a State or Territory Government, or
intangible damage to Australia’s reputation or relationships between the Commonwealth Government and a State or Territory Government, or between officials
having the effect of diminishing the capacity of the Commonwealth Government, or State or Territory Government, to function within Australia’s federal structure.
The Law Council of Australia recommended that, for the purposes of paragraphs (d) and (e), the Explanatory Memorandum should clarify what may amount to ‘intangible damage’. In response, the Attorney-General’s Department submitted:
The reference to ‘intangible’ damage to Australia’s reputation or relationships is intended to cover situations where Australia’s international standing is reduced in ways that are real, but not able to be specifically and individually listed. This is consistent with the ordinary meaning of the word.
Government proposed amendments – cause harm to Australia’s interests
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 to ‘improve the clarity of offences that apply to current and former Commonwealth officers, most particularly by narrowing the definitions of “causes harm to Australia’s interests” and “inherently harmful information” at section 121.1 of the Bill’. The Committee received draft amendments to this effect from the Attorney-General on 5 March 2018. The proposed amendments in relation to the definition of ‘causes harm to Australia’s interests’ included:
removing provisions subject to civil penalties from paragraph (a) of the definition,
entirely removing paragraph (d)—’harm or prejudice Australia’s international relations in any other way’,
entirely removing paragraph (e)—’harm or prejudice relations between the Commonwealth and a State or Territory, and
limiting paragraph (f) to harm or prejudice to the health or safety of the Australian public, or a sections of the Australian public.
The proposed amendments were generally supported by participants in the inquiry. The Human Rights Law Centre submitted, for example, that the amendments would ‘narrow the list of interests in the definition … to only those interests that are appropriately captured within a general secrecy offence’.
The Law Council of Australia, while welcoming the amendments, noted that the phrase ‘interfere with’ would remain in the amended paragraph (a). It therefore considered the paragraph ‘remains very broad and may well stifle criticism of police, security or prosecution officials who have acted improperly or negligently’. The Law Council also reiterated its concern about proceeds of crime matters falling within the proposed definition.
The joint councils for civil liberties similarly noted that while the deletions ‘lessen the overreach of the offence and are a significant improvement’, further amendments were required to align the offence more fully with the ALRC’s recommendation.
‘Proper place of custody’ offences
Proposed subsections 122.1(3) (relating to inherently harmful information) and 122.2(3) (relating to conduct causing harm to Australia’s interests) make it an offence to remove information from, or hold information outside, a ‘proper place of custody for the information.
Proposed section 121.2 provides that the meaning of the term ‘proper place of custody’ will be prescribed in regulations. The Explanatory Memorandum states that the term should be ‘interpreted broadly’ and for specified information may include, for example,
a building or part of a building,
a safe, compactus or other place of storage,
a briefcase, bag or other container allowing for the custody of information or documents in transit, or
an electronic system, computer network, computer or device allowing for the custody of information in electronic form.
The Explanatory Memorandum further states that the regulations may prescribe that a proper place of custody must meet certain requirements.
The Law Council of Australia recommended that the type of information that may be ‘proper place of custody’ be more clearly defined an circumscribed in the Bill. It suggested that ‘appropriate criteria’ be incorporated to ‘assist in ensuring that the matter would, or would be reasonably likely to cause harm to or prejudice Australia’s national security’.
The Commonwealth Ombudsman, Michael Manthorpe PSM, noted that his office would hold ‘inherently harmful information’. He submitted:
Without a definition of ‘proper place of custody’ it ‘is not clear what resourcing or other practical implications this requirement may have on my office.
The Attorney-General’s Department provided the following response to this concern:
The department notes that most, if not all, Commonwealth departments and agencies will hold inherently harmful information. This information is already required to be stored and dealt with in accordance with the Commonwealth’s protective security policies.
The definition of ‘proper place of custody’ will reflect the requirements of these protective security policies. There will be no additional burden on departments and agencies that are already complying with protective security policies.
The secrecy offences in the Bill are subject to delayed commencement and will commence by Proclamation, within six months of the Bill receiving the Royal Assent. The department intends to consult departments and agencies about the definition of proper place of custody during this period.
The Department advised that draft regulations had not yet been prepared, but would be prepared consistently with the approach set out in the Explanatory Memorandum.
‘Lawful direction’ offences
Proposed subsections 122.1(4) (relating to inherently harmful information) and 122.2(4) (relating to conduct causing harm to Australia’s interests) make it an offence for a person to fail to comply with a lawful direction regarding the retention, use or disposal of information.
The Explanatory Memorandum describes intent of these offences:
It is intended that the concept of a lawful direction include a direction that is lawful, from a person with the authority to give that direction. It is not intended that there must exist a formal relationship of command or control between the person who gives the direction and the person to whom the direction is given. Examples of a lawful direction would include:
Example 1: Person A is an [Australian Public Service (APS)] employee. Person B is an APS employee of the same agency. Person B gives Person A a direction, and has the authority to give that direction.
Example 2: Person C is subject to an arrangement or agreement with the Commonwealth, or a Commonwealth entity. Person D gives Person C a direction, and has the authority to give that direction in connection with the arrangement or agreement.
Example 3: Person E gives Person F information. In the course of giving the information to Person F, Person E gives Person F a direction.
The Explanatory Memorandum also provides the following example of where the offence would be committed:
Person A is employed under the Members of Parliament (Staff) Act 1984. Person A is given a document containing an update on an ongoing criminal intelligence investigation by Person B, a senior official of the Australian Criminal Intelligence Commission [ACIC]. The document contains information obtained using the ACIC’s coercive examination powers, and from a source. Person B directs Person A to store the document in a safe that only Person A has access to. Person A stores the document in a safe that is accessible by all staff in the office.
The Inspector-General of Intelligence and Security (IGIS) noted that the term ‘lawful direction’ is not defined in the Bill, ‘nor is there any specific limitation on who may make these directions or the content of directions beyond the broad subject matter to which they must relate’. The IGIS pointed out a risk of unintended consequences from applying criminal liability to the contravention of such directions. The IGIS stated that
a broad class of people (including presumably most or all supervisors) will have the ability to give directions which will effectively criminalise behaviour. Such directions may well be lawful but, in my view, it does not necessarily follow from the mere fact that a direction is lawful that there is an appropriate basis for applying criminal liability to contraventions of all such directions. The proposed offence could attach significant criminal sanctions to the breach of directions that are of a relatively trivial nature and do not, in fact, raise any realistic prospect of the relevant information being placed at risk of compromise.
There is also a risk that the application of criminal sanctions to any and all such directions may engender a punitive and defensive approach towards security compliance. This may create reluctance on the part of some officers to proactively disclose and report breaches, and may lead to the concealment of compliance issues out of fear of exposure to criminal penalty.
The IGIS suggested that consideration could be given to whether further statutory parameters could be applied to the concept of ‘lawful direction’ in order to ‘help to ensure that the proposed criminal law response is proportionate to the wrongdoing sought to be targeted, is not unduly reliant on administrative discretion to achieve this objective’.
The Attorney-General’s Department provided the following response:
The department does not agree with the assertion that breach of such directions are necessarily ‘relatively trivial’, when taking into account the nature of the information covered by the offences.
The onus will be on the prosecution to prove, beyond a reasonable doubt, that there was a lawful direction. The prosecution will also have to prove that the defendant was reckless as to this element.
In a supplementary submission, the IGIS reiterated her support for further statutory parameters to be applied to the concept of a ‘lawful direction’, in particular a requirement that the direction was issued ‘for the purpose of protecting the security of the information against unauthorised access or disclosure’.
The IGIS considered that it was conceivable that a direction about the use, retention or disposal of information ‘may have no bearing upon the protection of the security of that information’. She provided the following examples:
A direction to store a document of a particular classification (such as SECRET) in one safe and not another, purely for reasons of convenience of access by authorised persons within an agency. Each safe could possess the same security specifications (for example, ‘Class B’) and could be subject to identical access controls that restrict access to the same persons, all of whom are authorised to access the relevant information.
A direction to contact another person at, or by, a particular time and disseminate a piece of security classified information that is relevant to the sending and receiving agencies’ functions, although the appointed deadline is not critical to the performance of those functions. (Noting that the ‘use’ of information could conceivably cover its dissemination.)
The underlying secrecy offences in proposed sections 122.1 and 122.2 carry penalties of up to 15 years imprisonment (for communication offences) or five years imprisonment (for dealing with, proper place of custody, or lawful direction offences). Proposed section 122.3 provides that aggravated offences, carrying an additional five years imprisonment, have been committed if any of the following circumstances exist in relation to an underlying offence:
(i) the information in relation to which the underlying offence is committed (the relevant information) has a security classification of secret or above;
(ii) if the commission of the underlying offence involves a record containing the relevant information—the record is marked with a code word, “for Australian eyes only” or as prescribed by the regulations for the purposes of this subparagraph;
(iii) the commission of the underlying offence involves 5 or more records each of which has a security classification;
(iv) the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;
(v) at the time the person committed the underlying offence, the person held an Australian Government security clearance.
The appropriateness of attaching criminal liability to security classifications [subparagraphs (i), (iii) and (iv)], and related matters concerning security classifications, are discussed in Chapter 3.
The definition of ‘Australian Government security clearance’ [subparagraph (v)] is discussed in Chapter 3. The Human Rights Law Centre submitted that it was ‘troubling’ that the fact that a person held any security clearance, even at the lowest levels, is proposed to be an aggravating circumstance, ‘with no need for their security clearance to be connected in any way to the offence’. The joint councils for civil liberties similarly noted that some clearances give access to only a very limited set of information, and argued that this as ‘not a sufficiently discriminating criterion to justify the aggravated penalty’.
In relation to subparagraph (ii), the Committee asked the Department to clarify what the regulations relating to code words are intended to cover, including whether the provision would allow any code word to be prescribed by the regulations, or only those which have the same meaning and effect as the label ‘for Australian eyes only’. The Department clarified that a code word ‘will not need to be prescribed in the regulations’ in order for the aggravating circumstance to apply:
The aggravating circumstance in subparagraph 122.3(1)(b)(ii) will apply if the underlying offence involves a record and the record:
is marked with a code word
is marked with ‘for Australian eyes only’
is marked as prescribed by the regulations for the purposes of this subparagraph.
The joint councils for civil liberties recommended that the aggravated offences in proposed section 122.3 be removed from the Bill entirely, noting that ‘the aggravating factors and the likely harm that would result from the aggravating conduct are not substantially different from that covered in the underlying offences’.
Government proposed amendments – aggravated offences
In amendments received by the Committee on 5 March 2018, the Attorney-General proposed removing aggravating factor (i)—’a security classification of secret or above’—as a consequence of the proposed amendments which limit the definition of ‘security classified information’ to information classified SECRET or TOP SECRET, or equivalent (as noted above and in Chapter 3).
Application to ‘insiders’ and ‘outsiders’
A number of participants in the inquiry were concerned that the secrecy offences in the Bill would apply equally to Commonwealth officers and all other persons.
As summarised above, the ALRC has recommended that there be a general secrecy offence for unauthorised disclosure of information by Commonwealth officers, with separate ‘subsequent disclosure’ offences for non-Commonwealth officers.
This distinction was supported by Independent National Security Legislation Monitor, the Hon. Roger Gyles AO QC, in his 2015 review of the secrecy offence in section 35P of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) regarding special intelligence operations (SIOs). Mr Gyles recommended that the existing section 35P be redrafted to treat ‘insiders’ (in that case, ASIO officers and affiliates) and ‘outsiders’ (third parties, such as journalists) separately, with one part dealing with third parties and another part dealing with insiders. The offences for ‘outsiders’ would carry the same penalties as for ‘insiders’, but with additional physical elements required to be proven. Mr Gyles’ recommendations were accepted by the Government and enacted following the passage of the Counter-Terrorism Legislation Amendment Bill 2016. Mr Gyles explained the reasons for treating insiders and outsiders separately as follows:
The principal differences between insiders and outsiders lie in the means of knowledge about an SIO and the obligations of confidentiality owed by insiders. An outsider has no direct means of knowledge and owes no duty of confidence. Unless good cause is shown, it is not acceptable that an outsider, without any duty of confidentiality, should have to risk criminal conviction for publication made without any or any reliable knowledge of the existence or nature of an SIO.
Dr Aruna Sathanapally of the Human Rights Law Centre similarly outlined the reasons for treating insiders and outsiders differently in the Bill’s general secrecy offences:
First, ‘Commonwealth officer’ doesn’t necessarily mean an employee; it may be someone who contracts with government or is employed by a contractor. But someone in that position has a particular duty and obligation that arises from having received sensitive information. An outsider doesn’t necessarily have that duty. … The second reason is a practical one. In the Commonwealth Public Service, even though there might be cause for improvement and we think it should be improved, we have a Public Interest Disclosure Scheme that applies to officers who work in the Commonwealth. That doesn’t apply to outsiders. … If you criminalise the position of outsiders, they don’t necessarily have access to the disclosure mechanisms that are available to laypeople. The third thing is that, if an outsider has access to information that they should not have access to, either they have done something that they shouldn’t have elsewhere in the law—in which case, that is the appropriate offence to tackle that—or someone has given it to them and the question then is: has that person then done something that they shouldn’t have done? But the position of the outsider is not what these secrecy offences ought to be targeted to.
The Law Council of Australia submitted that the application of the secrecy provisions to outsiders was ‘not adequately justified’ and that they ‘do not contain adequate safeguards for protecting the rights of outsiders’. The Law Council recommended the provisions be redrafted to treat insiders and outsiders separately ‘to improve the proportionality of the measures’.
In response to these concerns, the Attorney-General’s Department noted:
Protecting Australia from espionage and foreign interference relies heavily on having strong protections for information, especially where disclosure causes harm to an essential public interest. The unauthorised disclosure or use of certain information can prejudice national security and defence or our relationships with foreign countries.
In the same way as any person can commit espionage, any person can threaten Australia’s safety, security and stability through the unauthorised disclosure of harmful information.
Definition of ‘Commonwealth officer’
‘Commonwealth officer’ is defined in proposed section 121.1 to mean any of the following:
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract.
The Law Council of Australia noted that the proposed definition of ‘Commonwealth officer’ does not include the Governor-General or parliamentarians who are not appointed to roles of a Minister of State or Parliamentary Secretaries. The Law Council recommended that the Committee consider whether the definition should be expanded to include the Governor-General, as was recommended by the ALRC. It argued that, as the head of state, the Governor-General ‘should arguably meet higher levels of accountability to the Australian people’.
The Attorney-General’s Department confirmed that expanding the definition of ‘Commonwealth officer’ to include the Governor-General would, mean: firstly, that information made or obtained by the Governor-General would be subject to the offences in sections 122.1 and 122.2; and, secondly, that the Governor-General could commit the offence at section 122.4 by communicating information that he or she was under a duty not to disclose.
Including the Governor-General in the definition of ‘Commonwealth officer’ would also make the defence in section 122.5(1) available for any dealings the Governor-General may have with Commonwealth information.
Government proposed amendments – separate offences for ‘outsiders’
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. These amendments included ‘creating separate offences that apply to non-Commonwealth officers that are narrower in scope than those applying to Commonwealth officers and only apply to the most serious and dangerous conduct’. The Committee received draft amendments to this effect from the Attorney-General on 5 March 2018. The proposed amendments included:
limiting the offences in proposed sections 122.1 and 122.2, and the aggravated offences in proposed section 122.3, to information made or obtained by a person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
creating two separate offences, in proposed section 122.4A, in relation to non-Commonwealth officers. The separate offences would be limited to communications, or other dealings, in which
the information has a security classification of SECRET or TOP SECRET,
the conduct damages the security or defence of Australia,
the conduct interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth,
the conduct harms or prejudices the health or safety of the Australian public or a section of the Australian public.
reducing the maximum penalties for the offences for non‑Commonwealth officers from 15 years to 10 years imprisonment for communications, and from five years to three years imprisonment for other dealings.
providing that, in proceedings for an offence against the proposed new section 122.4A, the prosecution is not required to prove the identity of the Commonwealth officer (or person otherwise engaged by a Commonwealth entity) who initially provided the information.
The Attorney-General also proposed excluding officers or employees of, or persons engaged by, the Australian Broadcasting Corporation and the Special Broadcasting Services Corporation from the definition of ‘Commonwealth Officer’. The Attorney-General explained that this amendment ‘appropriately recognises that members of these organisations, while being public employees, are engaged primarily in journalism and communications activities’.
The proposed amendments were generally supported by participants in the inquiry. The Law Council of Australia, for example, submitted that the proposed amendments, in principle ‘are to be commended as a significant improvement’ to the secrecy offences. However, the Law Council noted its concern about the severity of the 15 year maximum penalty that would continue to apply in relation to Commonwealth officers.
The Human Rights Law Centre welcomed the proposal to limit proposed sections 122.1 to 122.3 to Commonwealth officers, and noted that—with the exception of the paragraphs relying on security classifications—new section 122.4A adopts harm as an essential element of each offence. The Centre, however, expressed the following concerns about the new offence:
[P]roposed new section 122.4A does not capture an essential element of any secrecy offence that applies to outsiders, being either that the outsider was provided the information on a confidential basis, or that the outsider knew or was reckless as to the fact that the information was disclosed to them in breach of a secrecy offence.
Moreover … the proposed new offence is not limited to disclosure but extends to ‘dealing’ with information, which includes receipt, possession or making a record. Therefore, it appears that, even with these proposed amendments, the Bill would criminalise innocent receipt of information by a non-Commonwealth officer, if the information has a security classification of secret or above.
At a public hearing, the Centre further commented that
if you are then going to put criminal offences on anyone—the ordinary person or the person who is engaged in some function that isn’t part of government—for essentially dealing with, sharing or disclosing information, there needs to be some duty or reason why the person could not deal with that information freely.
The Centre referred the Committee to the ALRC’s ‘clear guidance’ with respect to the principles to guide the creation of any secrecy offence applying to non-Commonwealth officers, and encouraged the Committee to view new section 122.4A as ‘essentially the general secrecy offence recommended by the ALRC to apply to Commonwealth officers’.
Consistency with freedom of information laws
Under the Freedom of Information Act 1982 (the FOI Act), every person has a legally enforceable right to obtain access to a document of an agency or an official document of a Minister, other than exempt documents. Exempt documents include documents affecting national security, defence or international relations; Cabinet documents; documents affecting enforcement of law and protection of public safety; and a range of other documents. The Act also provides for a range of public interest conditional exemptions.
The Human Rights Law Centre submitted that breadth of the proposed new secrecy offences is such that ‘they criminalise the disclosure of information to which Australians have a right to access under the FOI Act’. The Centre provided several examples to demonstrate this point:
New section 122.1 criminalises disclosure of “information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency,” whereas the FOI Act only exempts documents whose disclosure would or could reasonably be expected to “disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures” or “prejudice the maintenance or enforcement of lawful methods for the protection of public safety”. The secrecy offence also extends to foreign law enforcement agencies, whereas the FOI Act exemption does not.
New section 122.2 extends to information the handling of which would harm or prejudice relations between the Commonwealth and a State or Territory, whereas under the FOI Act, a document the disclosure of which would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State is only conditionally exempt from release, meaning that it is only exempt if its release would, on balance, be contrary to the public interest (see ss 11A and 47B of the FOI Act). New section 122.2 contains no such public interest test.
The FOI Act provides no exemption for security classified information … Rather than merely relying on security classifications or other protective markings, the FOI decision-maker has to independently turn their mind to the question of whether a document’s disclosure would cause damage to specified public interests. As such, persons disclosing security classified or marked “for Australian Eyes Only” information could be caught under the proposed offences, notwithstanding that the information could be legally obtained under the FOI Act.
The Department responded to the Centre’s concern as follows:
The secrecy offences are subject to a defence for persons acting within their powers, functions and duties as a Commonwealth officer. This would include release of information under freedom of information laws.
Following release of the government’s proposed amendments to the definition of ‘inherently harmful information’ (discussed above), the Human Rights Law Centre commented that paragraph (e) of the definition ‘remains inconsistent with the principles in the FOI Act with respect to domestic law enforcement agencies’.
Replication of section 70 of the Crimes Act
Section 70 of the Crimes Act currently consists of the following offences, punishable by imprisonment for up to two years.
(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, commits an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, commits an offence.
The Explanatory Memorandum provides the following overview of deficiencies in the existing offence:
The drafting of section 70 is outdated and complicated, resulting in a lack of clarity about the scope of the offence. For example, section 70 will be enlivened where a Commonwealth official is subject to a duty of non-disclosure arising elsewhere. It is well-established that a statutory duty of non-disclosure may enliven the offence. Comparatively, it remains unresolved whether a duty at common law or in equity would be a relevant duty for the purposes of the offence. Similarly, the offence requires the disclosure of a ‘fact or document’. The application of the offence to the disclosure of factual information or documents is well-established, however there is some uncertainty about the application of the offence to the disclosure by a Commonwealth official of matters of opinion or advice that are not factual in nature in a non-documentary form.
The Explanatory Memorandum notes that there have been calls for ‘significant reforms’ to the existing Crimes Act secrecy offences ‘for many years’. In particular, the Explanatory Memorandum notes the ALRC’s report Secrecy Laws and Open Government in Australia (see above). In that report, the ALRC summarised its concerns with the section 70 offences as follows:
There are real concerns about the way that s 70 of the Crimes Act is framed—in particular, the need to establish a ‘duty not to disclose’ independently of the offence provision. In the ALRC’s view, where it is the Australian Parliament’s intention to impose criminal sanctions for disclosure of Commonwealth information, this should be done in a single offence provision so that there is a clear and certain link between the conduct being criminalised and the criminal penalty imposed.
Despite the views of some stakeholders that s 70 of the Crimes Act is relatively straightforward to enforce and should be retained, the ‘catch-all’ nature of the provision is seriously out of step with public policy developments in Australia and internationally … there is also an argument to be made that a law that imposes criminal liability on all Commonwealth officers for unauthorised disclosure of any official information—and does not differentiate between the types of information protected or the consequences of disclosure—does not sit comfortably with the implied constitutional freedom of communication about government and political matters, or with Australia’s international human rights obligations.
The ALRC recommended that section 70 [and the official secrets offence in section 79(3)] be repealed and replaced by new offences in the Criminal Code.
In accordance with the ALRC’s recommendation, the Bill proposes to repeal section 70 from the Crimes Act. However, the Bill effectively replicates the offences in section 70 (albeit in a modernised form) in new proposed section 122.4 of the Criminal Code.
Some participants in the inquiry raised concerns about the Bill’s replacement of section 70 with similar provisions in proposed section 122.4. For example, Dr Luke Beck of Monash University questioned why the offence was included in a national security Bill at all:
Clause 122.4 captures public service leaks on any subject matter and regardless of the implications, if any, of the leak. The provision seems to be a catch-all public service leaks offence. The provision does not pursue any national security purpose. It is not readily apparent why such a provision is found in a Bill that is ostensibly about “national security”, “espionage” and “foreign interference”.
The Human Rights Law Centre submitted that proposed section 122.4 ‘replicates the recognised flaws’ in section 70, ‘not only in lacking any requirement that the disclosure result in harm’, but also:
Both [section] 70 and new section 122.4 apply to any information a Commonwealth officer learns in their job regardless of its nature or sensitivity (provided they have a duty not to disclose it) … [and]
Like [section] 70, new section 122.4 applies where a person had a “duty not to disclose” the relevant information, but does not provide that duty itself, or even the Acts in which those duties are contained. Instead, the duty must be found elsewhere.
The Centre concluded that it was ‘difficult to see the necessity of new section 122.4 in light of the other offences introduced by the Bill, which cover a wide array of conduct’. The Centre commented:
The entire ALRC report was directed to why sections 70 and 79 of the Crimes Act needed to be repealed and what needed to replace them, yet this bill would make section 70 an enduring feature of Commonwealth law with no concrete timetable for repeal. That would be a real disappointment for necessary law reform in Australia.
The Explanatory Memorandum provides the following rationale for the inclusion of proposed section 122.4 in the Bill:
At present, many Acts and Regulations impose duties of non-disclosure on Commonwealth officers that enliven the offence in section 70 of the Crimes Act. If section 70 were repealed without replacement, those duties would lose their criminal enforceability, potentially undermining the protection of information that should appropriately be protected.
The offence in section 122.4 is intended to preserve the operation of those specific secrecy frameworks, until such time as each duty can be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed. Given the number and diversity of such duties, this review will be conducted as each duty is next considered, rather than within a specific period of time. Accordingly, this offence is not subject to a sunset provision.
The joint media organisations recommended that the Committee consider a sunset provision ‘so that the “review” is not allowed to go on indefinitely’.
In its report, the ALRC identified 23 provisions that were not themselves criminal , but may give rise to a ‘duty not to disclose’ for the purpose of section 70. However, the ALRC also noted there was a ‘lack of clarity’ as to which duties may give rise to criminal liability under section 70.
Freedom of expression and political communication
Several submissions raised concerns about the impact of the proposed secrecy offences on the right to freedom of expression and the implied constitutional right to freedom of political communication. The nature of these rights and the general concerns raised by submitters about the Bill’s impact on these rights are discussed in Chapter 3.
The Australian Human Rights Commission submitted that the Bill should not be passed ‘unless and until the secrecy offences in Schedule 2 are amended to ensure they are necessary and proportionate to achieve their objective, and are consistent with the freedom of expression’. Specifically, the Commission was concerned that the secrecy offences:
do not, for the most part, distinguish between conduct engaged in by ‘insiders’ and by ‘outsiders’,
are not limited to prohibiting disclosures that are shown to damage the interests of the Commonwealth,
contain inappropriate strict liability provisions,
do not contain adequate defences.
Dr Luke Beck, an Associate Professor of Constitutional Law, submitted that he ‘would not be confident of the constitutional validity’ of the offences in proposed section 122.2:
To avoid violating the implied freedom of political communication, such a burden must be reasonably capable of being seen as appropriate and adapted to achieving its legitimate purpose. Assuming the prevention of harm to Australia’s interests is the purpose of the provision, clause 122.2 appears to fail this test. The provision criminalises the communication of information (i) in respect of which of there is no other legal duty not to disclose and (ii) which concerns not only serious matters relating to national security but also minor matters that are merely administratively or politically inconvenient or embarrassing rather than genuinely harmful.
The provision prohibits communications of information that do not genuinely harm Australia’s interests. The offence applies to more conduct than is reasonably necessary to achieve the purpose of preventing harm to Australia’s interests. Alternative, less restrictive means of achieving that purpose exist. To be compatible with the implied freedom of political communication the definition of ‘cause harm to Australia’s interests’ needs to be more carefully calibrated to apply only to communications that would genuinely harm Australia’s interests.
The Law Council of Australia similarly considered that a constitutional challenge to the proposed secrecy provisions on the grounds that they breach the implied right to freedom of political communication ‘may be likely’.
The Committee received a joint submission from the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Special Rapporteur on the situation of human rights defenders. The Special Rapporteurs drew attention to the Australian Government’s obligations under Article 19 of the International Covenant on Civil and Political Rights with respect to freedom of opinion, and submitted that they were ‘gravely concerned’ that the Bill may violate those obligations.
The Special Rapporteurs were particularly concerned about the Bill’s provisions regarding ‘inherently harmful information’ (including the breadth of definitions and prohibited conduct, and the lack of harm and knowledge requirements), the breadth of the definition of what constitutes ‘harm to Australia’s interests’, and limitations in the defences available to whistleblowers and journalists. The Special Rapporteurs submitted:
We are concerned that the cumulative effect of these restrictions, coupled with the lack of meaningful defenses, will disproportionately restrict disclosures of government related information that is nevertheless in the public interest, particularly disclosures that draw critical public scrutiny to government fraud, waste, and abuse.
We are particularly concerned that these restrictions will disproportionately chill the work of media outlets and journalists, particularly those focused on reporting or investigating government affairs. The lack of clarity concerning these restrictions, coupled with the extreme penalties, may also create an environment that unduly deters and penalizes whistleblowers and the reporting of government wrongdoing more generally.
The Attorney-General’s Department addressed in its submission the need to balance national security concerns with freedom of speech and the implied freedom of political communication:
Secrecy offences are often perceived as draconian and intended to stifle free expression and debate. They can also be perceived as preventing whistle blowing about public sector misconduct or corruption. The ALRC supported the ongoing need for general secrecy offences and noted the challenge of striking the right balance between ‘the public interest in open and accountable government and the public interest in maintaining the confidentiality of some government information’.
The Bill strikes an appropriate balance, by criminalising dealings with information that is inherently harmful as well as dealings with information that are likely to cause harm to Australia’s interests. These offences are complemented by a modernised offence preventing Commonwealth officers from communicating information that they are under a legal duty not to disclose. The offences are tiered so that the most serious penalties attach to conduct involving communication of inherently harmful information and information that does, will or is reasonably likely to cause harm to Australia’s interests.
The Department advised that it had considered the implied right to freedom of communication and ‘is confident that the offences in the Bill do not infringe on the implied freedom’.
The Committee recognises that strong measures to protect sensitive Commonwealth information are an essential part of Australia’s legal framework. In certain circumstances, the unauthorised disclosure of information has the potential to cause substantial harm to Australia’s interests, including harm to Australia’s long-term security and defence, and harm to the personal safety of individuals.
The Committee also recognises that the proposed secrecy offences in Schedule 2 to the Bill are of significant interest to the Australian community. While there appears to be general support for reforming the existing secrecy laws in the Crimes Act, there is concern that the Bill as drafted could criminalise too broad a range of conduct and contains inadequate protections for freedom of expression.
The Committee therefore welcomes the Attorney-General’s proposed amendments. The Committee addresses these amendments and a range of other proposed amendments in the discussion below.
Unsolicited receipt of information
The Committee notes that, in line with the advice of operational agencies, the secrecy offences in the Bill are deliberately broad in order to capture a range of dealings with information that fall short of communication or disclosure. This includes receiving, obtaining, collecting, possessing, making a record of, and copying information. The Committee notes that, in certain circumstances, such activities may be preparatory to the unauthorised disclosure of sensitive information, and considers it appropriate that the secrecy provisions capture this conduct.
The Committee acknowledges concerns expressed by some participants in the inquiry that, due to the broad definition of ‘deals with’, a person could commit a secrecy offence simply by receiving certain information without being aware of the nature of that information. These concerns particularly apply in relation to security classified information and other ‘inherently harmful information’ under proposed section 122.1, and the proposed new section 122.4A. However, the Committee notes that, due to the default application of fault elements under the Criminal Code, in order for a person to be found guilty of one of these offences, a prosecution would need to prove beyond reasonable doubt that the person
intentionally dealt with (i.e. received, possessed, collected, etc.) the relevant information, and
was reckless as to the nature of that information—that is, in the case of security classified information, the person would need to be aware that there is a substantial risk that the information he or she intentionally received was classified, and that having regard to the circumstances known to him or her, it was unjustifiable to take that risk.
The Committee accepts the views of participants that the operation of these fault elements is not clear on the face of the Bill, and recommends that the Bill be amended to remedy this.
The Committee also notes that there are a range of circumstances where a person could intentionally receive, or be in the possession of, ‘inherently harmful information’ for innocuous reasons. The Committee considers it important that the defences in proposed section 122.5, discussed in the next chapter, be sufficiently robust to respond to such circumstances.
The Committee recommends that the Bill include a note making explicit that the secrecy offences relating to security classified information and other ‘inherently harmful information’ will only apply where a person intentionally deals with the relevant information, and where the person is reckless as to the nature of that information.
‘Inherently harmful information’
The Committee accepts the proposition that there are certain categories of information that, if inappropriately handled, are likely to cause substantial harm to Australia’s essential interests. This includes highly classified information, information produced or obtained by intelligence agencies, and sensitive information relating to the operations, capabilities, methods and sources used by law enforcement agencies.
The Committee welcomes the Attorney-General’s proposed amendments to narrow the scope of the definition of ‘inherently harmful information’, including by removing paragraph (d)—information that was provided to the Commonwealth ‘in order to comply with an obligation under a law or otherwise by compulsion of law’. This amendment will remove from the scope of the offences a range of information that, while potentially sensitive, may not be considered ‘inherently harmful’ enough to warrant inclusion in the general secrecy offences.
Also in the definition of ‘inherently harmful information’ is information the communication of which would, or could reasonably be expected to, damage the security or defence of Australia (paragraph (b)). However, noting that the wording of this paragraph effectively includes a harm-based test, the Committee agrees with the suggestion that it would be more coherent for it to be placed in the definition of ‘cause harm to Australia’s interests’.
The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offences at proposed section 122.1 in relation to ‘inherently harmful information’ be implemented. This includes removing paragraph (d) from the definition of ‘inherently harmful information’, removing strict liability from elements of the offences, and limiting the offences to Commonwealth officers.
The Committee recommends that the Bill be amended to move paragraph (b)—information the communication of which would, or could be reasonably expected to, damage the security or defence of Australia—from the definition of ‘inherently harmful information’ into the definition of ‘cause harm to Australia’s interests’ in proposed section 121.1.
‘Cause harm to Australia’s interests’
The Committee also welcomes the Attorney-General’s proposed amendments to narrow the scope of the definition of ‘cause harm to Australia’s interests’, including by removing contraventions of civil penalty provisions, international relations (other than in relation to information communicated in confidence) and Commonwealth–State/Territory relations from the definition. These amendments will help ensure the offences are more appropriately targeted towards the most harmful conduct.
The Committee notes that dealing with information in a way that interferes with or prejudices the performance of the AFP’s functions under proceeds of crime legislation remains within the definition of ‘cause harm to Australia’s interests’. The Committee agrees with the Attorney-General’s Department that there is an essential public interest in strong action to confiscate proceeds of crime, and supports its continued inclusion in the scope of the offences.
The Committee also notes concerns expressed by the Law Council of Australia about the breadth of the phrase ‘interfere with’ in relation to the prevention, detection, investigation, prosecution and punishment of criminal offences, and in relation to certain AFP functions including proceeds of crime. Similar wording is included in the terms of the Attorney-General’s proposed new offence for non-Commonwealth officers (section 122.4A), albeit limited to criminal offences. While the Committee is concerned to ensure that criticism of police, security or prosecution officials who have acted improperly or negligently is protected, the Committee also notes the risks associated with limiting the ability of police to act when a person’s conduct is interfering with, but has not yet prejudiced, a criminal investigation. The Committee considers that the most appropriate way to balance these objectives is to ensure that the defences available in the legislation cover the reporting of corrupt behaviour and maladministration by the authorities. This is discussed further in the next chapter.
The Committee recommends that the Attorney-General’s proposed amendments to narrow the scope of the offences at proposed section 122.2 in relation to conduct causing harm to Australia’s interests be implemented. This includes removing paragraphs (a)(i), (d) and (e) from the definition of ‘cause harm to Australia’s interests’, clarifying that paragraph (f) applies to the health or safety of the Australian public, or a section of the Australian public, and limiting the offences to Commonwealth officers.
Proper place of custody offences
The Committee notes that the intention of the ‘proper place of custody’ offences at proposed subsections 122.1(3) and 122.2(3) is that they will apply to contraventions of existing requirements for Commonwealth departments and agencies to handle classified information in accordance with the Commonwealth Protective Security Policy Framework. The Committee notes that the framework is proposed to be incorporated by reference into regulations that define the term ‘proper place of custody’ for the purpose of these offences. To ensure that the law is able to be readily understood, the Committee considers it appropriate that any material incorporated into these regulations should be required to be publicly available.
The Committee recommends that the Bill be amended to require that any material incorporated into regulations for the purpose of the definition of ‘proper place of custody’ at proposed section 121.2 be publicly available.
‘Lawful direction’ offences
Proposed subsections 122.1(4) and 122.2(4) make it an offence for a person to fail to comply with a lawful direction regarding the retention, use or disposal of certain sensitive information. Noting the potential for serious harm to result from the mishandling of sensitive information, the Committee supports in principle this conduct being the basis of a criminal offence.
However, the Committee agrees with the Inspector-General of Intelligence and Security that it would not be appropriate for the offence concerning ‘inherently harmful information’ to extend to lawful directions that have no bearing upon the protection of the security of that information. The Committee therefore supports the suggestion that further statutory parameters be included in the Bill to more narrowly target the scope of the offence at proposed subsection 122.1(4).
The Committee recommends that the Bill be amended to limit the secrecy offence at proposed section 122.1(4), in relation to failing to comply with a lawful direction, to directions that have been issued for the purpose of protecting the security of the ‘inherently harmful information’ against unauthorised access or disclosure.
The Committee agrees in principle that there will be circumstances in which a person has a higher degree of culpability with respect to the proposed secrecy offences that will warrant aggravated penalties being available. This includes circumstances where the information that a person deals with or communicates is code worded, consists of five or more records, or where the person alters a record to remove or conceal a security classification.
The Committee supports the Attorney-General’s proposed amendment to remove the aggravating factor in subparagraph 122.3(1)(b)(i). As the definition of ‘security classification’ is now proposed to be limited to classifications of secret or above, it would not be appropriate for such information to be the subject of an aggravating factor.
The Committee holds concerns, however, about the scope of the aggravating factor in subparagraph 122.3(1)(b)(v)—that at the time the person committed the underlying offence, the person held an Australian Government security clearance. The Explanatory Memorandum states that ‘Australian Government security clearance’ is intended to capture all security clearances granted by the Australian Government Security Vetting Agency (AGSVA) or another government agency conducting and issuing security clearances under the Protective Security Policy Framework. This would include clearances from ‘Baseline’ up to ‘Top Secret Positive Vetting’ levels.
Under the amendments proposed by the Attorney-General, the offences in sections 122.1 and 122.2 will only apply to Commonwealth Officers. While the Committee accepts that persons holding higher level clearances have additional responsibilities, the Committee considers that the holding of a Baseline clearance is not sufficiently differentiated from non-clearance holders to justify an aggravated penalty. Baseline security clearances are the lowest level granted by AGSVA, and enable a holder to access information up to ‘Protected’—the lowest security classification. As at September 2017, there were 114 101 active Baseline clearances managed by AGSVA, with many government entities requiring all employees to hold a Baseline clearance in order to access their records management system. A Baseline clearance will not be sufficient for a person to access ‘security classified information’—that is, information with a classification of SECRET or above—under the revised definition in the Bill. A clearance of ‘Negative Vetting 1’ would be the minimum required to access such information. The Committee therefore considers it would be more appropriate to limit the aggravating factor to clearances of Negative Vetting 1 (or equivalent) and above.
The Committee recommends that the Bill be amended to limit the aggravating factor at subparagraph 122.3(1)(b)(v), in relation to the proposed secrecy offences for Commonwealth officers, to persons holding an Australian Government security clearance that allows the person to access information with a classification of SECRET or above.
Application to non-Commonwealth officers
One of the recurring criticisms of the Bill raised in submissions to the inquiry was that the offences apply equally to both Commonwealth officers and to all other persons. The Committee agrees with these participants that Commonwealth officers have greater obligations than other persons in respect to the confidentiality of Commonwealth information.
The Committee therefore strongly supports the Attorney-General’s proposal for separate secrecy offences, narrower in their range of conduct captured, to be established for non-Commonwealth officers.
While the Committee notes that the proposed new offences for non-Commonwealth officers do not fully replicate the model proposed by the Australian Law Reform Commission, the Committee notes that the offences are appropriately limited to highly classified information and conduct that results in, or is likely to result in, harm to essential public interests.
The Committee recommends that the Attorney-General’s proposed amendments, to create separate secrecy offences that apply to non‑Commonwealth officers that are narrower in scope than those applying to Commonwealth officers, be implemented.
Consistency with freedom of information laws
The Committee notes evidence that the proposed secrecy offences may prohibit dealing with or communicating information that would otherwise be accessible to Australians under the freedom of information legislation. By narrowing the definitions of ‘inherently harmful information’ and ‘causes harm to Australia’s interests’, the Attorney-General’s proposed amendments would reduce the level of inconsistency between the two regimes. However, the Committee notes the view of one submitter that there continues to be differences in respect of information relating to domestic and foreign law enforcement agencies.
The Committee notes there is an important difference between information that a person may request access to under the Freedom of Information Act, and information that would properly be disclosed under that Act. It is open to a person to request almost any information held by a government agency, unless the information or agency is covered by section 7 of the Act (Exemption of certain persons and bodies). However, Part IV of the Act contains a range of exemptions and conditional exemptions, which then narrow the scope of information that may in fact be released. The existence of these exemptions and conditional exemptions reflects an important balance between open government, and the need for some information to remain properly confidential.
The Committee notes that the defence in subsection 122.5(1) would cover the provision of information by a Commonwealth officer to an applicant under the FOI Act process. That is to say, the Bill would not appear to impede the proper operation of the FOI Act process. Similarly, the defence in subsection 122.5(2) is intended to extend to ‘information members of the public are entitled to request access to, even if no members of the category do request access to it’. This would presumably include information that has been released to an applicant under the FOI Act, and which would therefore be available on request from the relevant department or agency.
The Committee recommends that the Bill be amended to make clear the effect of the defences in subsections 122.5(1) and (2) in relation to the Freedom of Information Act 1982.
Section 122.4 – replication of section 70 of the Crimes Act
The Committee notes that proposed section 122.4 largely replicates the existing secrecy offences proposed to be removed from in section 70 of the Crimes Act. This offence has been included in the Bill to ‘preserve the operation of’ other Acts and Regulations that impose duties of non-disclosure on Commonwealth officers ‘until such time as each duty can be reviewed to determine whether it should be converted into a stand-alone specific secrecy offence, or whether criminal liability should be removed’.
However, given the well-documented problems with the existing section 70 offence that are replicated in proposed section 122.4, and noting the already broad scope of the new secrecy offences in proposed sections 122.1 and 122.2, the Committee considers it would be appropriate to put an outer limit on this period of review. This will ensure the provision is in fact repealed once enough time has elapsed for the dependent laws to be reviewed.
The Committee notes that the ALRC, in its comprehensive report on Secrecy Laws and Open Government in Australia, was only able to identify 23 duties likely to give rise to criminal liability under section 70. The Committee considers a five-year sunset period on section 122.4 would allow sufficient time for the Attorney-General’s Department to review each of those duties and to determine whether there is an ongoing need to enforce them with specific criminal sanctions.
The Committee recommends that the Bill be amended to apply a sunset period of five years to proposed section 122.4 (‘Unauthorised disclosure of information by current and former Commonwealth officers etc.’).
Review of specific secrecy offences in other legislation
The Committee also notes the array of specific secrecy offences in other legislation that will continue to exist once the proposed new general offences have been added to the Criminal Code. The Committee notes the findings in the ALRC’s report as to the role of these offences—of which the ALRC identified more than 500—and the set of principles that should guide the creation of any new offences and the review of existing offences. It is likely that many of these existing offences will no longer be required, or will require amendment, with the passage of the new offences.
In addition to reviewing the provisions that will be enlivened by proposed section 122.4, the Committee therefore recommends that these broader secrecy provisions be reviewed as soon as possible to determine whether they are still required with the enactment of the proposed offences in Schedule 2, or whether amendments are required. The ALRC’s guidance should be taken into account in this review.
The Committee recommends that, following the passage of the general secrecy offences in Schedule 2 to the Bill, the Attorney-General initiate a review of existing secrecy offences contained in other legislation, taking into account the set of principles contained in the Australia Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.