Fault elements
9.60 The great majority of Commonwealth secrecy offences do not stipulate fault elements attaching to the physical elements in the offence. Where legislation creating an offence does not specify fault elements, the automatic fault elements set out in the Criminal Code apply.9.61 Under the Criminal Code, the fault element for a physical element of an …
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Read moreSubsequent disclosure offences
9.98 In Chapter 6, the ALRC recommends the creation of two offences for the subsequent unauthorised disclosure of Commonwealth information: (a) where a person receives the information in confidence; and (b) where a person receives the information knowing that, or reckless as to whether, the information has been disclosed in breach of the general secrecy …
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Read morePenalties
9.132 The final section of this chapter discusses two issues relating to penalties for the breach of specific secrecy offences: inconsistencies in current penalties for secrecy offences and the development of benchmark penalties for secrecy offences that include a requirement of harm.Inconsistencies between specific secrecy offences9.133 Penalties in specific secrecy offences vary widely, from a …
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Read moreWhose conduct should be regulated?
9.2 Specific secrecy offences currently criminalise the conduct of a range of parties, including:· Commonwealth officers, whether by referring to all Commonwealth officers, or officers of specific agencies;[2]· individuals providing services for or on behalf of the Commonwealth;[3]· individuals engaged in federally funded or regulated areas of the private sector—for example, health service providers[4] and …
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Read moreWhat conduct should be regulated?
9.33 In Chapter 6, the ALRC recommends that the general secrecy offence should cover only the ‘disclosure’ of information.[48] As discussed in Chapter 3, 85% of secrecy offences prohibit disclosing, divulging or communicating Commonwealth information. In addition, approximately 60% of secrecy offences cover conduct other than—and usually in addition to—the disclosure of information, including unauthorised soliciting,[49] receipt …
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Read moreExpress 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 disclosurecause, 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 …
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Read moreProtecting categories of information
8.28 Many secrecy offences currently prohibit the unauthorised handling of specific categories of Commonwealth information. These include, for example, offences that relate to the disclosure of: · personal information,[23] or information concerning or relating to the affairs of another person;[24] · confidential commercial information[25] or other information that is supplied in confidence;[26] · defence or …
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Read moreWhose conduct should be regulated?
6.3 Chapter 3 provides an overview of the parties regulated by existing federal secrecy provisions. As noted in that chapter, secrecy provisions can apply to:· Commonwealth employees;· organisations or individuals providing services for or on behalf of the Commonwealth;· Commonwealth agencies;· other specific categories of organisations or individuals; or· ‘any person’.6.4 In this section, the ALRC …
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Read moreWhat information should be protected?
6.84 In Chapter 3, the ALRC considers the various categories of information protected by the hundreds of existing secrecy provisions in federal legislation.[86] In this section, the ALRC considers what information should be protected by the new general secrecy offence and the subsequent disclosure offences.6.85 Section 70 of the Crimes Act applies to any current and former …
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Read moreInitial and subsequent disclosures
6.128 Most secrecy provisions regulate the initial unauthorised disclosure of Commonwealth information. As McGinness has noted, however, this can give rise to problems:Where a secrecy provision permits disclosure to other government agencies then, in the absence of a specific provision, the persons receiving the information are not bound by that statute to maintain its confidentiality …
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