What 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 Commonwealth officer who publishes or communicates ‘any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer’. This would include official information received or collected by the Australian Government, as well as information generated within Government.

6.86       Regulation 2.1 of the Public Service Regulations 1999 (Cth), the administrative secrecy provision that applies to APS employees, covers ‘information which the APS employee obtains or generates in connection with the APS employee’s employment’.

6.87       The Australian Government Protective Security Manual[87] binds all Commonwealth agencies to a series of procedures designed to protect ‘official information’ which includes any information received or collected by, or on behalf of, the Government, through its agencies and contractors.[88]

6.88       Other possible models include s 142.2 of the Criminal Code, which prohibits a ‘Commonwealth public official’ from dishonestly using information ‘obtained in the official’s capacity as a Commonwealth public official’. Section 18(2) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) applies to ‘any information or matter that has come to the knowledge or into the possession of the person by reason of his or her being, or having been, an officer or employee of the Organisation’.

6.89       The Explanatory Material that accompanies the Tax Laws Exposure Draft Bill states that:

Protected information includes information in the form of written documents, conversations, electronic recordings, transcripts or any other form in which information can be recorded. It includes information obtained directly from a taxpayer or information generated by the ATO (for instance, through the collating, cross referencing or summarising of related information from a variety of different sources).[89]

6.90       In DP 74 the ALRC proposed that the general secrecy offence should apply to any information to which a person has, or had, access by reason of his or her being, or having been, a Commonwealth officer.[90]

Submissions and consultations

6.91       A number of stakeholders expressed support for the ALRC’s proposal, on the ground that it was important to ensure that the provision provides protection for a wide range of information, including information that has not been accessed legitimately.[91]

ALRC’s views

6.92       The ALRC recommends retaining a broad definition of Commonwealth information in the new general secrecy offence. The provision is intended to be an umbrella provision of general application applying to all Commonwealth officers and to all Commonwealth information. It is intended to complement more specific provisions that are limited in their scope to particular parties or particular information.

6.93       The formulation used in the Criminal Code—that is, information obtained in the official’s capacity as a Commonwealth public official—appears to be too narrow for the purposes of the general secrecy offence. This formulation limits the relevant information to that which a Commonwealth public official has legitimate access to in his or her formal capacity. In a provision dealing with unauthorised disclosure, it is important to include information that a Commonwealth officer may have access to because of his or her position, whether or not that access is legitimate. This would include, for example, Commonwealth information that the officer accessed in contravention of agency guidelines or rules. This information may not have been available to the particular officer in his or her formal capacity as a Commonwealth officer because, for example, he or she may not have had an adequate security clearance.

6.94       The approach adopted in s 70 of the Crimes Act and s 18(2) of the ASIO Act is not limited in this way. These provisions apply to any information to which the officer may have access by virtue of being, or by reason of being, an officer. This would include information that a person is able to access because of his or her position, despite access being in breach of agency rules.

6.95       The ALRC prefers the term ‘information’ to the Crimes Act formulation of ‘any fact or document’. As indicated in the Explanatory Material to the Tax Laws Exposure Draft Bill, ‘information’ can be given a wide meaning to include information in oral, written, electronic or any other form. Much information intended to be covered by the general offence will not be factual or in documentary form, although the ALRC notes that the term ‘document’ is defined widely in s 25 of the Acts Interpretation Act 1901 (Cth). The ALRC recommends that the general secrecy offence apply to ‘any information to which a person has, or had, access by reason of his or her being, or having been, a Commonwealth officer’.

Recommendation 1–14           The general secrecy offence should apply to any information to which a person has, or had, access by reason of his or her being, or having been, a Commonwealth officer as defined in Recommendation 6–1.

[8]           Ibid.

[9]           See, eg, Criminal Code (Cth) dictionary, definition of ‘Commonwealth public official’ paras (n) and (r).

[86]         See also Ch 9.

[87]         Australian Government Attorney-General’s Department, Australian Government Protective Security Manual (PSM) (2005).

[88]         Ibid, pt C, [1.3].

[89]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [2.17].

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

[91]          Department of Health and Ageing, Submission SR 81, 28 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009.