10.4 In this chapter, the ALRC uses the term ‘authorised disclosure provisions’ to refer to three kinds of provision that operate to permit the disclosure of government information—exceptions; defences; and information-handling provisions.
10.5 Most secrecy provisions contain exceptions to the prohibition on disclosure. An ‘exception’ is a provision that limits the scope of the conduct prohibited by a secrecy offence (compared to a ‘defence’, which operates to excuse conduct that is prohibited by the offence). An exception may provide, for example, that a person does not commit an offence where the disclosure of information is made in the course of performing duties under the relevant legislation.
10.6 Examples of the range of exceptions that may be included in specific secrecy provisions are summarised in Chapter 3, and include disclosures that are:
· in the course of an officer’s functions and duties;
· for the purposes of specific legislation;
· authorised by specified persons;
· made to specified persons or entities;
· for the purposes of legal proceedings or law enforcement;
· made with the consent of the person to whom the information relates;
· made to avert threats to life or health; or
· in the public interest.
10.7 The most common exceptions in specific secrecy offences are those that permit disclosure in the performance of a person’s functions and duties or for the purposes of particular legislation. Exceptions that fall into one or both of these categories are present in approximately two thirds of all secrecy offences. Approximately 20% of offences allow disclosure with the authority of a specified person, such as the head of an agency.
10.8 A common formulation is to place a general prohibition on the disclosure of certain information and then to codify circumstances in which disclosure is allowed. One example is the Income Tax Assessment Act 1936 (Cth), which allows the Commissioner, a Second Commissioner, or a Deputy Commissioner of Taxation or a delegate to authorise disclosure to a wide range of specified bodies, set out in 30 separate subparagraphs. Another example is the Law Enforcement Integrity Commissioner Act 2006 (Cth), which contains exceptions to secrecy obligations placed on the staff members of the Australian Commission for Law Enforcement Integrity. The provisions allow the Integrity Commissioner to disclose information in prescribed circumstances, including to the heads of a range of specified Commonwealth, state and territory agencies. Many other secrecy offences follow a similar approach.
10.9 A defence excuses conduct that is prohibited by an offence. Although specific secrecy offences generally contain exceptions rather than defences, examples of defences in specific secrecy offences include:
· s 200A(3) of the Aboriginal and Torres Strait Islander Act 2005 (Cth)—which provides that ‘it is a defence to a prosecution’ for disclosing information if the information was communicated to a person authorised in writing by the person to whose affairs the document relates;
· s 58(3) of the Defence Force Discipline Act 1982 (Cth)—which provides a defence to a prosecution for the unauthorised disclosure of information where ‘the person proves that he or she neither knew, nor could reasonably be expected to have known, that the disclosure of the information was likely to be prejudicial to the security or defence of Australia’;
· s 79(5) and (6) of the Crimes Act 1914 (Cth)—which provide that a person who receives certain information, knowing or having reasonable ground to believe that it is communicated in contravention of particular secrecy offences, shall be guilty of an offence ‘unless he or she proves that the communication was contrary to his or her desire’; and
· s 91.2 of the Criminal Code (Cth)—which provides a defence to the prosecution of an offence of communicating information if it is ‘information that has already been communicated or made available to the public with the authority of the Commonwealth’.
10.10 Approximately 10% of secrecy offences do not contain express exceptions or defences. Defences may nevertheless be available under provisions of the Criminal Code or at common law. Chapter 7 summarises the defences of general application contained in pt 2.3 of the Criminal Code, in particular the defence of ‘lawful authority’, which applies where ‘the conduct constituting the offence is justified or excused by or under a law’.
10.11 Some legislation that does not contain specific secrecy offences may set out circumstances in which certain information may be disclosed. The ALRC has not classified such provisions as ‘secrecy provisions’ because they do not prohibit the disclosure of information—rather, they establish rules about the handling and disclosure of information. However, such provisions may operate as exceptions to obligations of non-disclosure set out in other legislation.
10.12 For example, s 718 of the Fair Work Act 2009 (Cth) permits the Fair Work Ombudsman to disclose information acquired by the Ombudsman, or persons working for or assisting the Ombudsman, where the disclosure is:
· necessary or appropriate in the course of exercising functions or powers under the Act;
· likely to assist in the administration or enforcement of a Commonwealth, state or territory law;
· to assist the Minister to consider a matter arising under the Act; or
· to the Department for the purposes of briefing the Minister.
10.13 The Explanatory Memorandum explains that this provision
is intended to operate in conjunction with relevant provisions in the Privacy Act 1988 and the Public Service Act 1999 and Public Service Regulations 1999 (including the APS Code of Conduct).
10.14 So, for example, the disclosures authorised under s 718 of the Fair Work Act are indicative of the disclosures that fall within the exceptions to the prohibition of disclosure contained in reg 2.1 of the Public Service Regulations that binds all Australian Public Service employees.
 Income Tax Assessment Act 1936 (Cth) s 16(4)(a)–(m). The Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) would, in the main, retain these provisions in a simplified form: see Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), 75, Table 8.4.
 Law Enforcement Integrity Commissioner Act 2006 (Cth) s 208(3).
 See, eg, Dental Benefits Act 2008 (Cth) ss 34–41; Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 122; A New Tax System (Australian Business Number) Act 1999 (Cth) s 30; Aged Care Act 1997 (Cth) ss 86-2, 86-3.
 Aboriginal and Torres Strait Islander Act 2005 (Cth) s 191(2A) contains a similar defence.
 Criminal Code (Cth) s 10.5.
 Explanatory Memorandum, Fair Work Bill 2008 (Cth), 404.