4.1 In Chapter 3, the ALRC discusses general law obligations—such as an employee’s duty of loyalty and fidelity and the equitable duty of confidence—and the extent to which they protect Commonwealth information in the hands of Commonwealth officers and others from unauthorised disclosure. In this chapter the ALRC considers whether these general law obligations provide sufficient protection in the public sector context, and whether it is necessary and desirable also to have in place statutory provisions that impose obligations of confidentiality on Commonwealth officers and others who handle Commonwealth information. The chapter then examines the potential role of administrative, civil and criminal provisions in regulating the disclosure of Commonwealth information.
4.2 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.