Overview of this Report

1.32       This Report contains 61 recommendations for reform. The focus of the recommendations is to provide a principled basis for a revised general secrecy offence, complemented by criteria for reforming specific secrecy provisions and revised administrative procedures and provisions aimed at fostering effective information handling in the public sector.

1.33       In accordance with its general policy, the ALRC has not produced draft legislation—for example, a draft general secrecy offence. This is partly because drafting is a specialised function better left to the parliamentary experts and partly because the ALRC’s time and resources are better directed towards determining the policy that will shape any resulting legislation. Where relevant, final recommendations specify the nature of any recommended legislative change.


1.34       Several terms are used throughout this Inquiry. Some definitions are set out below.

Secrecy provision

1.35       There is no established definition of the term ‘secrecy law’ or ‘secrecy provision’. For the purposes of this Inquiry, the ALRC has adopted a broad approach to the characterisation of secrecy provisions and defined a secrecy provision as a provision in an Act or subordinate legislation that imposes secrecy or confidentiality obligations on individuals or entities in relation to Commonwealth information.

1.36       Secrecy provisions normally apply to the disclosure of information. They may, however, cover a chain of conduct that leads to possible disclosure—such as soliciting, obtaining, copying, using and retaining information.

1.37       Provisions that have not been included in the concept of ‘secrecy law’ include those that:

  • prohibit the misuse of information for personal gain—as the principal concern of such provisions is fraud, not the protection of the confidentiality of the information;[23]

  • concern the storage, modification or destruction of information; or

  • permit the disclosure of information in certain circumstances.

General and specific secrecy offences

1.38       The ALRC’s consideration of criminal secrecy offences is divided into general and specific secrecy offences.

1.39       A general secrecy offence is intended to serve as an umbrella offence applying to the unauthorised disclosure of Commonwealth information by all current and former Commonwealth officers.

1.40       Specific secrecy provisions apply to particular agencies or individuals or protect particular kinds of information. Where such provisions create a criminal offence, the ALRC describes them as ‘specific secrecy offences’.

Commonwealth information

1.41       ‘Commonwealth information’ (also referred to as ‘government’ or ‘official’ information) is information developed, received or collected by or on behalf of the Commonwealth government. It includes information the Commonwealth receives from individuals (such as personal information provided to an agency like Centrelink), information developed in-house (for example, intelligence reports) and information generated by foreign governments that is shared with the Commonwealth government.

Essential public interests

1.42       In this Inquiry the ALRC focuses upon identifying those public interests that are sufficiently important to warrant protection through criminal secrecy offences. These are referred to as ‘essential public interests’.


1.43       The ALRC has adopted the definition of ‘public interest disclosure’, or ‘whistleblowing’, set out in the text Public Interest Disclosure Legislation in Australia—that is, ‘the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to people or organisations that might be able to effect action’.[24]

Chapter structure

1.44       This Report is divided into 16 chapters, falling into five broad areas:

  • conceptual framework;

  • a general criminal secrecy offence;

  • specific secrecy offences;

  • administrative duties, practices and procedures; and

  • interactions with other laws.

Conceptual framework

1.45       The first four chapters provide the conceptual framework for secrecy laws, and an overview of the confidentiality and secrecy obligations imposed by common law and statute. This section also puts forward a framework for reform, including the idea that secrecy provisions should only be put in place to protect information that genuinely requires protection and where unauthorised disclosure has the potential to harm identified essential public interests.

1.46       Chapter 2 provides the broad conceptual framework for the Inquiry and the interaction and tension between ideas of secrecy and accountability of government. The chapter begins with a brief historical overview of the shift from secrecy towards open government, followed by a review of current trends in open government. The chapter then considers the right of freedom of expression under the International Covenant on Civil and Political Rights,[25] concluding with a discussion of balancing ideas of secrecy, freedom of expression and open government.

1.47       Chapter 3 contains an overview of the laws that currently govern the use and disclosure of Commonwealth information by individuals within and beyond the Australian Government. It describes the equitable duty of confidence and common law duties of loyalty and fidelity in relation to the use and disclosure of government information. The chapter then examines the elements of specific secrecy provisions contained in Commonwealth legislation, and discusses the general secrecy offences set out in ss 70 and 79(3) of the Crimes Act.

1.48       Chapter 4 considers whether general law obligations—such as the equitable duty of confidence and the common law duty of loyalty and fidelity—provide sufficient protection in the public sector context. The ALRC concludes that, in addition, it is necessary and desirable to have in place statutory provisions that impose obligations on Commonwealth officers and others who handle Commonwealth information. The chapter also examines the potential role of administrative, civil and criminal statutory provisions in regulating the disclosure of Commonwealth information.

1.49       The ALRC’s key recommendation for reform in the criminal context is that, in most cases, the prosecution should be required to prove that a particular disclosure caused harm, was reasonably likely to cause harm, or was intended to cause harm to specified public interests, such as the security or defence of the Commonwealth. In the absence of any likely, intended or actual harm to an essential public interest, the ALRC has formed the view that the unauthorised disclosure of Commonwealth information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies.

A new general secrecy offence

1.50       Chapters 5 to 7 consider in detail the way the recommended new general secrecy offence should be framed, including which public interests should be expressly protected by the offence. In Chapter 5, the ALRC takes as its starting point the public interests protected by the various exemptions under the FOI Act. These exemptions are indicative of the situations in which the disclosure of Commonwealth information has the potential to harm the public interest. The ALRC examines each of the FOI Act exemptions and recommends which of these require the protection of the criminal law under the general secrecy offence.

1.51       Chapter 6 considers some of the other elements of the general secrecy offence, including whose conduct, and what kind of conduct, should be regulated. The ALRC recommends two offences for the subsequent disclosure of Commonwealth information by third parties, where the information was initially disclosed to that person in breach of the general secrecy offence or on terms requiring it to be held in confidence.

1.52       Chapter 7 considers which exceptions and defences should be available under the recommended general secrecy offence and subsequent disclosure offences and the penalties that should apply for breach. The ALRC recommends that there should be exceptions 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. Protection from criminal liability under secrecy offences may also arise as a result of public interest disclosure (or ‘whistleblower’) legislation. The chapter considers the interaction of the recommended offences with public interest disclosure legislation as proposed by the House of Representatives Standing Committee on Legal and Constitutional Affairs.

Specific secrecy offences

1.53       Chapters 8 to 11 review specific secrecy offences—that is, secrecy offences other than ss 70 and 79(3) of the Crimes Act. These chapters consider the circumstances in which specific secrecy offences are warranted, and how such offences should be framed.

1.54       In Chapter 8, the ALRC recommends that specific secrecy offences are only warranted where they are necessary and proportionate to protect essential public interests. The chapter compares two ways of confining secrecy offences to conduct that causes harm to essential public interests—the inclusion of an express requirement of harm and the protection of certain categories of information in which the harm of disclosure may be implicit or not amenable to inclusion as an element of a criminal offence. The chapter considers three categories of information in detail: information obtained or generated by intelligence agencies; information obtained or generated by law enforcement agencies; and personal and commercial information.

1.55       In Chapter 9, the ALRC makes recommendations in relation to other elements of specific secrecy offences, including whose conduct and what conduct should be regulated by specific secrecy offences, as well as appropriate fault elements and penalties for contravention of secrecy offences. The chapter also considers specific subsequent disclosure offences.

1.56       Chapter 10 discusses the way in which secrecy offences may both prohibit the disclosure of information, and also set out circumstances in which the disclosure of information is permitted. The chapter considers when it may be appropriate to include authorised disclosure provisions in legislation to enable Commonwealth information to be shared in appropriate circumstances and the form that those provisions should take. In addition, the ALRC considers how authorised disclosure provisions in specific legislation can provide content to the exceptions and defences recommended to be included in the general secrecy offence.

1.57       Chapter 11 discusses how the ALRC’s recommendations in Chapters 8 to 10 can be applied to specific secrecy offences currently on the Commonwealth statute book and to the creation of new secrecy offences in the future. The ALRC considers how current specific secrecy offences might be reviewed and recommends the development of policy guidance to assist in drafting secrecy offences.

Administrative duties, practices and procedures

1.58     In contrast to the focus on criminal secrecy offences in preceding chapters, the four chapters in this group discuss the administrative secrecy framework in the Australian Government. The cornerstone of this framework is the secrecy provision set out in reg 2.1 of the Public Service Regulations, which applies to all Australian Public Service (APS) employees. Chapter 12 considers in detail this regulation and associated provisions of the Public Service Act 1999 (Cth). In particular, the chapter makes recommendations for narrowing the scope of conduct regulated by reg 2.1 to promote information sharing in appropriate circumstances.

1.59       Regulation 2.1 and associated provisions only apply to APS employees. In Chapter 13, the ALRC recommends models for harmonising the administrative secrecy regimes that apply to Commonwealth employees other than APS employees—such as members of the Australian Defence Force, members of the Australian Federal Police and employees of statutory authorities—with the Public Service Act framework. The chapter also considers mechanisms for regulating persons who are not in an ongoing employment relationship with the Australian Government, such as private sector contractors and former Commonwealth employees.

1.60       Chapters 14 and 15 discuss the tools available to Australian Government agencies to foster effective information-handling practices: for example, through developing and implementing information-handling policies and engaging employees in training and development programs.

Interaction with other information-handling laws

1.61       Chapter 16 considers the relationship between Commonwealth secrecy laws and other Commonwealth laws dealing with the handling of information—in particular, the FOI Act, the Archives Act 1983 (Cth) and the Privacy Act 1988 (Cth). The ALRC makes recommendations to promote public comment and deliberation before enactment of a secrecy provision that would detract from the disclosure requirements under the FOI Act or the information-handling standards set out in the Privacy Act. The chapter also considers the interaction between secrecy laws and parliamentary privilege.

[2]           Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 1.

[23]         This was a matter that was referred to in the review of Commonwealth criminal provisions in 1991:
H Gibbs, R Watson and A Menzies, Review of Commonwealth Criminal Law: Final Report (1991). In Part V, ‘The Disclosure of Official Information’, after a consideration of existing Australian law regarding disclosure of official information, comparative law and options for reform, a chapter was included concerning ‘Misuse of Official Information for Private Gain’: ch 33. The Committee considered that such a matter could be included, if at all, under other provisions of the Crimes Act or a proposed new offence. It was, therefore, peripheral to what were considered secrecy provisions in the report.

[24]         A Brown, Public Interest Disclosure Legislation in Australia (2006), xxi.

[25]         International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976).