5.1          In Chapter 4, the ALRC recommends that s 70 of the Crimes Act 1914 (Cth) be repealed and that there should be a new general secrecy offence located in the Criminal Code (Cth).[1] The ALRC also concludes that most secrecy provisions, and the general secrecy offence in particular, should include an express requirement to establish that an unauthorised disclosure of Commonwealth information caused, or was likely or intended to cause, harm to specified public interests. In this chapter the ALRC considers which specific public interests should be protected by the general offence. In developing its approach to this issue, the ALRC took as its starting point the exceptions set out in the Freedom of Information Act 1982 (Cth) (FOI Act).

5.2          In formulating a provision to target the protection of specific public interests, the ALRC was drawn to the idea that the general secrecy offence should complement the FOI Act. In this regard it is worthwhile noting that the Australian Public Service Commissioner indicates in the APS Values and Code of Conduct in Practice that the exemptions in the FOI Act are a useful starting point in determining which categories of information fall within the scope of reg 2.1 of the Public Service Regulations 1999 (Cth), which prohibits the disclosure of information that has the potential to prejudice the effective working of government.[2] The objects clause of the FOI Act states that the Act is intended to extend ‘as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth’:

limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.

5.3          The ALRC has adopted the approach that a subset of the public interests identified in the FOI Act exemptions should inform the development of the public interests to be protected by the general secrecy offence. This approach has the additional benefit that FOI guidelines and jurisprudence in relation to the meaning and scope of these FOI exemptions may assist Commonwealth officers to better understand their obligations under the new general secrecy offence.

5.4          In the course of the Inquiry a number of stakeholders expressed views on the ALRC’s general approach to this issue and the range of public interests that should be expressly protected by the general secrecy offence. The Australian Securities and Investments Commission (ASIC) agreed that secrecy provisions and FOI legislation should be complementary and that there should be no inherent tension for Commonwealth officers subject to both regimes. In ASIC’s experience, it was possible to balance the need to protect certain information under secrecy provisions with the need to release information into the public domain under the FOI Act.[4]

5.5          The Australian Government Attorney-General’s Department (AGD) noted the ALRC’s preference for moving away from the protection of categories of information in the general secrecy offence, but expressed the view that some limited categories of information did merit protection on the basis that the information had the potential to harm ‘processes or relationships that are an integral part of government’.[5]

5.6          The Australia’s Right to Know (ARTK) coalition advocated

avoiding, as far as possible, the tendency to rely on the general, preferring an approach whereby specific categories of the public interest are identified and set out in the legislation. Exemptions that are framed in terms of disclosures causing prejudice to the ‘effective workings of government’ or ‘the ordinary course of government’ are too broad, too subjective and risk being construed so widely as to encompass almost any administrative or governmental activity depending on the circumstances.

5.7          The Law Council of Australia expressed the view that the disclosure of information that is merely embarrassing, confidential or sensitive—but does not affect national security, defence, foreign relations or human health or safety—should lead to administrative rather than criminal sanctions.[7]

5.8          In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC proposed that the general secrecy offence should impose criminal penalties for the unauthorised disclosure of information that did, was reasonably likely to, or intended to:

  1. harm the national security, defence or international relations of the Commonwealth;
  2. prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction, the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue;
  3. endanger the life or physical safety of any person;
  4. pose a serious threat to public health or public safety;
  5. have a substantial adverse effect on personal privacy; or
  6. have a substantial adverse effect on a person in respect of his or her lawful business or professional affairs or on the business, commercial or financial affairs of an organisation.[8]

5.9          In the following section, the ALRC considers in detail the FOI exemptions that should be reflected in the general secrecy offence.

[1]           Recommendation 4–1. Section 70 is described in detail in Chs 3 and 4, and set out in full in Appendix 5.

[2]           Australian Public Service Commission, APS Values and Code of Conduct in Practice (2005) <> at 30 November 2009.

[3]           Freedom of Information Act 1982 (Cth) s 3(1)(b). The Exposure Draft, Freedom of Information Amendment (Reform) Bill 2009 (Cth) proposes a revised objects clause, which is set out in Ch 2 of this Report.

[4]           Australian Securities & Investments Commission, Submission SR 41, 17 March 2009.

[5]           Attorney-General’s Department, Submission SR 67, 14 August 2009.

[6]           Australia’s Right to Know, Submission SR 35, 6 March 2009.

[7]           Law Council of Australia, Submission SR 30, 27 February 2009.

[8]           Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal