8. The Role of Specific Secrecy Offences
Express requirement of harm
8.8 There are precedents for the inclusion of an express harm requirement in secrecy offences. A small number of secrecy offences currently include a requirement that the disclosure cause, or be likely to cause, a particular harm. As the following examples illustrate, a harm requirement may either take the form of an objective test or refer to the intention of the person making a disclosure:
· s 58 of the Defence Force Discipline Act 1982 (Cth), which requires that a disclosure ‘is likely to be prejudicial to the security or defence of Australia’ in order for an offence to be committed;
· s 71(5) of the Pooled Development Funds Act 1992 (Cth), which protects information ‘the disclosure of which may reasonably be expected to affect a person adversely in respect of the lawful business, commercial or financial affairs of the person’;
· s 758 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), which prohibits the disclosure of information where it ‘could reasonably be expected to prejudice substantially the commercial interests of another person’;
· sch 3, item 6 of the Wheat Export Marketing (Repeal and Consequential Amendments) Act 2008 (Cth), which requires that a disclosure ‘could reasonably be expected to cause financial loss, directly benefit a consumer or reduce the return of the pool’; and
· s 79(2) of the Crimes Act 1914 (Cth), which prohibits the communication of certain information ‘with the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions’.
8.9 A few other secrecy offences define the protected information by reference, in part, to identifiable harms. For example, the Food Standards Australia New Zealand Act 1991 (Cth) provides that it is the duty of certain persons not to disclose ‘any confidential commercial information in respect of food’. ‘Confidential commercial information’, for these purposes, is defined as:
(a) a trade secret relating to food; or
(b) any other information relating to food that has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.
8.10 In most cases, however, harm is not an express element of the offence, and therefore, the prosecution is not required to prove harm beyond reasonable doubt.
8.11 In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC proposed that specific secrecy offences should generally incorporate a requirement that, for an offence to be committed, there must be a reasonable likelihood that the disclosure of information will cause harm to some specified public interest, except where there are countervailing public interests.
8.12 There are several reasons in favour of including an express requirement of harm in specific secrecy offences. First, as discussed above and in Chapter 4, the fact that a disclosure causes, or was likely or intended to cause, harm is a principled basis for imposing a criminal penalty—without such harm, criminal penalties are unlikely to be justified.
8.13 Secondly, an express requirement of harm would narrow the scope of overly broad secrecy provisions. For example, in response to the Issues Paper, Review of Secrecy Laws (IP 34), the Law Council of Australia considered that a harm requirement ‘would address concern about the broad scope of the current criminal secrecy provisions, which may capture disclosure of information that is already in the public domain or is otherwise innocuous’. The inclusion of a harm requirement would mean that criminal penalties would not apply to all disclosures of any information, but only to disclosures that have the potential to harm public interests.
8.14 The response of stakeholders to the proposal that specific secrecy offences should generally incorporate a requirement that the disclosure of information cause, or is likely or intended to cause, harm to a specified public interest was mixed. The issues were captured in the submission from the Australian Government Attorney-General’s Department (AGD), which acknowledged that ‘while harm to the public interest should be a key consideration and policy rationale for any secrecy provision, it may not be necessary to expressly include this as an element in all secrecy laws’. However, the AGD suggested that, for information that is not ‘by its very nature’ likely to cause harm, it may be appropriate to ‘link the offence to the public interest it is intended to serve in order to avoid the provision being unnecessarily broad’ and concluded that a ‘reasonably likely to cause harm’ formulation would be a useful model for some secrecy offences.
8.15 A number of stakeholders agreed with the ALRC’s proposal that specific secrecy provisions should generally incorporate a requirement of harm, except in exceptional cases. The Community and Public Sector Union (CPSU) submitted, however, that specific secrecy offences should always incorporate a reasonable likelihood of harm criteria. Ron Fraser agreed, suggesting that the proposed exception for circumstances where there are clear countervailing public interests was unnecessary.
8.16 Most government stakeholders opposed the inclusion of an express harm requirement in a number of specific secrecy offences. A number considered that an express harm requirement was unnecessary, because the harm to public interests was implicit in specific offences dealing with the unauthorised disclosure of sensitive information. For example, the Department of Health and Ageing submitted that, because of the ‘sensitivity of health information’,
maintaining continuous public trust and confidence in the protection of health information held by the department is a key concern. That the release of secret information would be reasonably likely to harm the public interest is already implicit in the existing health secrecy provisions.
8.17 The Treasury argued that consideration of public interest—and harm to those interests—properly occurs when a secrecy provision is drafted. Referring to submissions quoted in IP 34, and the concerns that secrecy provisions are ‘too broad and contrary to the interests of Government transparency’, the Treasury suggested that:
Rather than what would, in effect, be a two-stage consideration of how sensitive particular material might be, these concerns might be more effectively addressed through ensuring that the initial judgment of when material is ‘secret’ is appropriately limited (by ensuring, for instance, as is the case with secrecy provisions relating to agencies such as [the Australian Prudential Regulation Authority] and the [Australian Taxation Office], that these provisions are designed to give effect to the public expectation that the confidentiality of information provided to Government is respected.
8.18 Some agencies considered that the very nature of certain kinds of information means that disclosure will inevitably cause harm. For example, the AGD submitted that it is not necessary to include an express harm requirement where secrecy provisions protect certain categories of information, such as national security, intelligence and defence information, law enforcement information and Cabinet documents.
8.19 The Australian Transaction Reports and Analysis Centre (AUSTRAC) submitted that the disclosure of the information it holds—comprising financial transaction data and compliance information from 17,000 reporting entities and foreign government financial intelligence units—is, by its nature, likely to cause harm to national security, law enforcement, personal privacy or commercial affairs, and ‘therefore the incorporation of a harm element is of little value’.
8.20 Other agencies were of the view that any unauthorised disclosure of personal information held by their agency would always harm the public interest. For example, the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) considered that:
any unauthorised disclosure, regardless of whether there is any intention of harm against a specified public interest in a particular instance, would inherently harm the public interest. This is because any unauthorised disclosure could have the potential to erode public confidence in the protection of information held in departmental records.
8.21 The Australian Taxation Office (ATO) noted that the harm caused by the unauthorised disclosure of taxpayers’ personal information not only impacts upon a person’s privacy, but also the integrity of the taxation system and individuals’ compliance with it. The ATO argued that this kind of harm would be difficult to capture in the wording of a criminal offence provision:
The ATO acknowledges that broadly it could be argued that public harm, in terms of a lessening of confidence in the privacy and confidentiality of information held by it could result from disclosures of taxpayer information. However, this would be practically difficult to apply because surely a certain number of disclosures of information would need to occur before this ambit type of harm could possibly be made out in a criminal prosecution.
8.22 In response to submissions from government agencies that the harm justifying some secrecy provisions is implicit, Ron Fraser submitted that ‘in most existing secrecy provisions, the harm that is involved, even though currently implied, should not be difficult to specify’.
8.23 Fraser also stressed that there were sufficient other means to ensure public confidence in the protection of personal information:
The general offence, the provisions of the Privacy Act [1988 (Cth)], non-criminal legislative provisions protecting specific information where thought necessary ... and administrative penalties, will provide the reassurance that the public requires that sensitive information they provide to agencies, or which agencies collect, will be protected from unauthorised disclosure.
8.24 An express requirement that an unauthorised disclosure cause, or be likely or intended to cause, harm will be appropriate where a secrecy offence covers a wide range of information, not all of which is necessarily likely to cause harm to a public interest if disclosed. This would confine the scope of the offence to those disclosures that actually involve the risk of harm to public interests.
8.25 Unlike the general secrecy offence, specific secrecy offences can be targeted to particular kinds of information and regulate the conduct of particular parties. Therefore, in very limited circumstances, the way in which secrecy offences are framed, and the context in which they operate, provide a sufficient likelihood that harm will be caused by an unauthorised disclosure, making an express requirement of harm unnecessary in every case.
8.26 Further, the harm caused by the disclosure of some kinds of information may not be amenable to inclusion as an element of an offence to be proved beyond reasonable doubt.
8.27 The following section discusses some circumstances where it may not be necessary to include an express requirement of harm in specific secrecy offences due to the nature of the information protected or the context in which a provision operates.
 Recommendation 5–1.
 Recommendation 5–1.
 This provision continues the operation of s 5E of the now repealed Wheat Marketing Act 1989 (Cth).
 Food Standards Australia New Zealand Act 1991 (Cth) s 114(1).
 Ibid s 4(1). However, the meaning of ‘confidential commercial information’ is not always defined: see, eg, the National Health and Medical Research Council Act 1992 (Cth) s 80.
 Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
 Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008).
 Law Council of Australia, Submission SR 30, 27 February 2009.
 Attorney-General’s Department, Submission SR 36, 6 March 2009.
 Community and Public Sector Union, Submission SR 57, 7 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.
 Community and Public Sector Union, Submission SR 57, 7 August 2009.
 R Fraser, Submission SR 78, 21 August 2009.
 Australian Federal Police, Submission SR 70, 14 August 2009; Department of Families, Housing, Community Services and Indigenous Affairs, Submission SR 68, 14 August 2009; Australian Prudential Regulation Authority, Submission SR 52, 6 August 2009; Department of Human Services, Submission SR 26, 20 February 2009.
 Department of Health and Ageing, Submission SR 81, 28 August 2009.
 The Treasury, Submission SR 60, 10 August 2009.
 Attorney-General’s Department, Submission SR 67, 14 August 2009; Attorney-General’s Department, Submission SR 36, 6 March 2009.
 Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009.
 Department of Families, Housing, Community Services and Indigenous Affairs, Submission SR 68, 14 August 2009. FaHCSIA also raised concerns that a harm test would create uncertainty for officers, and cause difficulties in proving harm when prosecuting offences. These issues are dealt with in detail in Ch 5 in relation to the general secrecy offence, and are not revisited in this chapter.
 Australian Taxation Office, Submission SR 55, 7 August 2009.
 R Fraser, Submission SR 78, 21 August 2009.