Exceptions and defences

7.2          A distinction may be drawn between an ‘exception’, which limits the scope of conduct prohibited by a secrecy offence, and a ‘defence’, which may be relied on to excuse conduct that is prohibited by a secrecy offence.

7.3          Section 94 of the Australian Trade Commission Act 1985 (Cth) provides an example of an ‘exception’, stating that ‘a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act’ disclose any information concerning the affairs of another person acquired by reason of the person’s employment. Section 191(2A) of the Aboriginal and Torres Strait Islander Act 2005 (Cth), on the other hand, provides that ‘it is a defence to a prosecution’ for disclosing information if the information relates to a loan made by Indigenous Business Australia and the information was communicated to a person authorised in writing, by the person to whose affairs the document relates, to receive the information.

7.4          In some circumstances, the distinction between an exception and a defence will be of limited significance. The Criminal Code (Cth) provides that a defendant who ‘wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter’.[3] The Criminal Code also provides that, except in particular circumstances, or where an offence expressly provides otherwise, where a burden of proof is imposed on a defendant, it is an evidential burden only.[4]

7.5          An evidential burden requires a defendant to provide evidence that suggests a reasonable possibility that the exception or defence is made out.[5] Once the defendant has met the evidential burden, the prosecution must refute the exception or defence and prove all elements of the offence beyond reasonable doubt.[6]

7.6          While framing a provision as a defence, rather than as an exception, does not of itself alter evidential burdens of proof, it may have procedural disadvantages for a defendant, in that a defendant must wait until the defence case is called before being able to lead evidence to justify his or her conduct.

7.7          Some offences expressly impose a legal burden of proof on the defendant.[7] A legal burden requires the defendant to establish the exception or defence on the balance of probabilities. Once this is done, the prosecution must refute the exception or defence beyond reasonable doubt.[8]

7.8          The Australian Government Attorney-General’s Department (AGD) Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (Guide to Framing Commonwealth Offences) states that:

In general, the prosecution should be required to prove all aspects of a criminal offence beyond reasonable doubt. A matter should be included in a defence, thereby placing the onus on the defendant, only where the matter is peculiarly within the knowledge of the defendant; and is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish.[9]

7.9          The Guide goes on to state that the fact that it is difficult for the prosecution to prove an element of an offence has not been considered, in itself, a sound justification for taking the significant step of reversing the onus of proof.[10]

Defences available under the Criminal Code

7.10       The Criminal Code sets out a range of circumstances in which a person is not criminally responsible for an offence. For ease of reference, the ALRC has referred to these as ‘defences’, although the Code does not characterise them in this way.[11] Even where a secrecy offence does not contain any express exceptions or defences, these Code defences may nevertheless be available. The Code includes the following defences of general application, that may be relevant in the context of the general secrecy offence:

  • mistake or ignorance of fact—which applies where the fault element is something other than negligence (s 9.1);

  • mistake of fact—which applies where the offence is one of strict liability (s 9.2);

  • duress (s 10.2);

  • sudden or extraordinary emergency (s 10.3); and

  • conduct justified or excused by or under a law (s 10.5).

7.11       In its submission, the AGD noted that these provisions were intended to codify the general defences available at common law.[12] The Guide to Framing Commonwealth Offences states that these defences are of general application to Commonwealth offences, and that defences covering the same matters should not be included in individual offences.[13]

[1]           Recommendations 5–1, 6–6, 6–7.

[3]           Criminal Code (Cth) s 13.3(3). The Code states that the ‘exception, exemption, excuse, qualification or justification need not accompany the description of the offence’. Notes in some Commonwealth secrecy laws refer to this provision of the Criminal Code: see, eg, Building and Construction Industry Improvement Act 2005 (Cth) s 65; Taxation Administration Act 1953 (Cth) s 3(2A).

[4]           Criminal Code (Cth) s 13.4.

[5]           Ibid s 13.3.

[6]           Ibid s 13 1.

[7]           Ibid s 13.4. See, eg, Crimes Act 1914 (Cth) s 79(5) and (6) for examples of secrecy offences in which the defendant bears a legal burden of proof. A legal burden of proof is created when the offence expressly provides that there is a legal burden of proof on the defendant, or requires the defendant to ‘prove’ the matter.

[8]           Criminal Code (Cth) s 13.5.

[9]           Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 28–29.

[10]         Ibid, 28.

[11]         Part 2.3 of the Criminal Code (Cth) is headed ‘Circumstances in which there is no criminal responsibility’.

[12]          Attorney-General’s Department, Submission SR 36, 6 March 2009.

[13]          Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 27.