Other issues

Consent of the Attorney-General to prosecute

7.152   The consent of the Attorney-General must be obtained before a prosecution can be commenced for breach of certain secrecy provisions. For example, the Attorney-General, or a person acting under his or her direction, must consent prior to a prosecution under s 79 of the Crimes Act[166] or s 91.1 of the Criminal Code dealing with espionage.[167] The Revised Explanatory Memorandum for the Criminal Code Amendment (Espionage and Related Matters) Bill 2002 (Cth) justified the need for such consent on the basis that prosecutions under pt 5.2 of the Criminal Code—which includes s 91.1—are likely to raise issues regarding matters of national security or sensitive international relations that require government to government contact.[168]

7.153   Other secrecy provisions that require the consent of the Attorney-General to institute a prosecution include:

  • ·                ss 18 and 92 of the ASIO Act, which govern communication of intelligence by officers of ASIO, and publication by any person of the identity of an officer of ASIO, respectively; and

  • ·                various provisions of the Intelligence Services Act 2001 (Cth), including the communication of information prepared by or on behalf of the Australian Secret Intelligence Service, the Defence Imagery and Geospatial Organisation or the Defence Signals Directorate by officers of the respective agency,[169] and publication by any person of the identity of the staff of these agencies.[170]

7.154   Other types of offences that require the Attorney-General’s consent in order to commence prosecutions include:

  • ·                sedition;[171]

  • ·                those involving harming Australians outside of Australian territory;[172] and

  • ·                genocide, crimes against humanity, war crimes and crimes against the administration of justice in the International Criminal Court.[173]

7.155   The primary justification for a requirement for the Attorney-General (or another minister or office holder) to consent to a prosecution is that it provides an additional safeguard to ensure that prosecutions are not brought in inappropriate circumstances.[174] The CDPP Prosecution Policy of the Commonwealth advises that a consent provision may be included, for example, where ‘it was not possible to define the offence so precisely that it covered the mischief aimed at and no more’ or for offences that ‘involve a use of the criminal law in sensitive or controversial areas, or must take account of important considerations of public policy’.[175]

7.156   In 1996, with respect to the repeal of certain provisions requiring the Attorney-General’s consent to prosecution, the then Attorney-General, the Hon Daryl Williams AM QC MP, observed that consent provisions were originally enacted for the purpose of deterring private prosecutions brought in inappropriate circumstances—particularly for offences relating to national security or international treaty obligations:

However, since establishing the office of the Commonwealth Director of Public Prosecutions the retention of those provisions is difficult to justify. That is particularly so now that the Director of Public Prosecutions has the power to take over and discontinue a private prosecution brought in relation to a Commonwealth offence.[176]

7.157   In its Inquiry into federal sedition laws, the ALRC raised concerns about the political nature of consent requirements.[177] Specifically, the Attorney-General, as a political figure, might be perceived to agree more readily to the prosecution of certain individuals—such as those who criticise government policy or are unpopular with the electorate. Politicisation may also become an issue where the Attorney-General refuses consent—for example, to the prosecution of a person who is perceived to be politically aligned to the government of the day. As a consequence, the ALRC recommended removing the requirement for the Attorney-General’s consent to prosecution of sedition offences.[178] The Australian Government expressed support for this recommendation.[179]

7.158   Section 8 of the Director of Public Prosecutions Act 1983 (Cth) provides that the performance of the CDPP’s functions is subject to directions or guidelines given by the Attorney-General. The Attorney-General can provide directions or guidelines about the circumstances in which the CDPP should institute or carry on prosecutions for offences, including in relation to particular cases. Such directions or guidelines must be published in theAustralian Government Gazette and tabled in Parliament.

7.159   In DP 74, the ALRC expressed the view that the general secrecy offence should not include a requirement to seek the Attorney-General’s consent prior to commencing a prosecution. The ALRC suggested that any directions from the Attorney-General to the CDPP in relation to such prosecutions might be included in directions or guidelines issued under s 8 of the Director of Public Prosecutions Act as it would ensure a level of transparency around any intervention in the prosecutorial decision making process by the Attorney-General.

Submissions and consultations

7.160   In its submission, the CDPP noted that the power under s 8 of the Director of Public Prosecutions Act has rarely been exercised and that it is a formal process requiring tabling in Parliament and gazettal. The CDPP expressed the view that this power would not be an appropriate alternative to a consent requirement in relation to individual prosecutions.[180]

7.161   In its submission, the AGD noted that:

Consent to prosecute provisions recognise the Attorney-General’s role as the First Law Officer and the Attorney-General’s ultimate responsibility for the prosecution of Commonwealth offences. Consent provisions give the Attorney-General a discretionary power to decide whether criminal proceedings should be commenced. The requirement for the Attorney-General’s consent is usually imposed where a prosecution could affect Australia’s international relations or national security. These are considerations which the Commonwealth Director of Public Prosecutions (CDPP) would not be able to take into account under the Prosecution Policy of the Commonwealth.

Consent provisions provide the Attorney-General with an opportunity to receive advice from relevant agencies on any sensitivities or issues which may arise if a prosecution is commenced. The Attorney-General’s consent may be appropriate in certain cases where there are matters of policy to be weighed up that are best left to elected representatives to decide. This might include consideration of whether there is potential for further damage to be done by airing the matter in court, or whether the prosecution could be detrimental to Australia’s foreign relations.[181]

7.162   The Australian Intelligence Community (AIC) stated that:

The AIC does not consider there has been any actual, or perceived, conflict of interest in the Attorney-General’s consent being required. Further, seeking the Attorney-General’s consent to prosecute ameliorates the potential strict application of these secrecy laws to the circumstances of an individual case.[182]

7.163   In its submission, APRA noted that it is the CDPP, rather than the Attorney-General, who makes a decision whether or not to prosecute a breach of s 56 of the APRA Act and that this is broadly consistent with the position that decisions relating to prudential regulation should be made independently of the executive government.[183]

7.164   The Treasury expressed the view that:

It is important for the prohibition on the disclosure of taxpayer information to be clear and unambiguous. Therefore, in the absence of any uncertainty as to the application of the provisions, we do not consider that it would be appropriate for the Attorney-General’s consent to be required.[184]

7.165   PIAC was opposed to the Attorney-General’s gatekeeper role in relation to prosecutions for breach of Commonwealth secrecy laws, stating that:

The fact that such prosecutions involve material that government asserts should be kept secret, and the potential for party political considerations to intrude upon the decision-making process, makes such a role singularly inappropriate.[185]

ALRC’s views

7.166   As noted above, the ALRC expressed some concern in its report, Fighting Words, in relation to the requirement for the Attorney-General’s consent to prosecution of sedition offences, and recommended the repeal of certain such requirements.[186] Given the reasons outlined in that report, the ALRC does not recommend that the new general secrecy offence should include a requirement for the consent of the Attorney-General prior to the commencement of a prosecution under the provision.

7.167   In addition, and on the basis of the CDPP’s advice, discussed above, the ALRC does not recommend that the Attorney-General should provide directions or guidelines in relation to particular prosecutions under the general secrecy offence under s 8 of the Director of Public Prosecutions Act. The formal process required in relation to such directions or guidelines is unlikely to be consistent with timeliness requirements in relation to individual cases. In the ALRC’s view, the decision to prosecute should remain with prosecuting authorities.

Injunctions

7.168   In some situations, the Australian Government may become aware that an unauthorised disclosure of Commonwealth information is about to occur. For example, information may have been leaked, and publication by the media or on an individual’s or organisation’s website appears imminent.

7.169   In its report Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), the ALRC analysed potential mechanisms to prevent the disclosure of classified and security sensitive Commonwealth information in these circumstances.[187] The ALRC considered that injunctions to restrain a breach of the criminal law provided an appropriate vehicle. However, in the absence of an express statutory power, courts have traditionally been reticent to issue such injunctions.[188]

7.170   The right for the Attorney-General to invoke the aid of the civil courts in enforcing the criminal law has been described as one which ‘is confined, in practice, to cases where an offence is frequently repeated in disregard of a usually inadequate penalty … or to cases of emergency’.[189] In Commonwealth v Fairfax, Mason J further noted that:

It may be that in some circumstances a statutory provision which prohibits and penalizes the disclosure of confidential government information or official secrets will be enforceable by injunction. This is more likely to be the case when it appears that the statute, in addition to creating a criminal offence, is designed to provide a civil remedy to protect the government’s right to confidential information.[190]

7.171   In the ALRC report, Principled Regulation: Federal Civil and Administrative Penalties in Australia, it was noted that injunctions are not in themselves penalties but may be used in support of actions seeking penalties.[191] In the course of that Inquiry, ASIC officers commented on the usefulness of injunctions in acting quickly against offenders:

The foundation of the ASIC approach is to try and protect investors, so the first step is always to act to protect, then start thinking about civil or criminal penalties.[192]

7.172   Section 17B of the Taxation Administration Act is an example of a provision that expressly provides for injunctive relief in relation to the disclosure of information:

Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of a taxation law that prohibits the communication, divulging or publication of information or the production of, or the publication of the contents of, a document, the Federal Court of Australia may … grant an injunction restraining the person from engaging in the conduct … requiring the person to do any act or thing.[193]

7.173   The Tax Laws Exposure Draft Bill also proposes that, where someone is engaging, or proposing to engage, in breach of the new disclosure provisions, the Commissioner can apply to the Federal Court for an injunction.[194] The Explanatory Material to the Draft Bill provides the following example:

Jerome, a journalist, unlawfully obtains information regarding the financial affairs of a prominent businessman and decides to include that information in his newspaper the following day. The Commissioner, who has become aware of this impending unlawful disclosure of taxpayer information, applies to the Federal Court for an injunction. The Federal Court issues an injunction against Jerome preventing him from publishing that information and also compelling him to return the information to the Australian Taxation Office (ATO).[195]

7.174   In Keeping Secrets, the ALRC noted the compelling public interest in protecting classified and security sensitive information from unauthorised disclosure. The ALRC recommended that:

Sections 70 and 79 of the Crimes Act 1914 (Cth) and s 91.1 of the Criminal Code Act 1995 (Cth) should be amended to provide that, where the courts are satisfied that a person has disclosed or is about to disclose classified or security sensitive information in contravention of the criminal law, the courts may grant an injunction to restrain such disclosure or further disclosure.[196]

7.175   In DP 74, the ALRC proposed that the general secrecy offence and the subsequent disclosure offence should provide that where a court is satisfied that a person has disclosed, or is about to disclose, information in contravention of the provisions, the court may grant an injunction to restrain such disclosure.[197]

Submissions and consultations

7.176   Stakeholders were generally supportive of providing the courts with power to issue injunctions to restrain the unauthorised disclosure of Commonwealth information.[198] The AGD’s submission supported an express provision allowing the grant of such injunctions, but noted that:

On a practical level, it would be unlikely that there would be a significant number of cases where an injunction would be sought to protect unauthorised handling of Commonwealth information, as it is rare to have forewarning that unauthorised disclosure is likely to occur.[199]

7.177   APRA submitted that it would be useful to have an express power in s 56 of the APRA Act permitting APRA to obtain an injunction to prevent disclosure of material in breach of that provision.[200] The ATO noted that s 17B of the Taxation Administration Act expressly provides for injunctive relief and stated that:

The ATO considers this is a positive feature of tax secrecy provisions because it is preferable to obtain injunctive relief in relation to an unauthorised handling of taxpayer information, rather than seeking to pursue a criminal prosecution after the fact (at which point the information may already be in the public domain).[201]

7.178   The Treasury agreed that the ability to obtain an injunction to prevent a breach of a taxation law forms an important part of the overall protection of taxpayer information:

Where possible, it can be used to prevent the damage caused (both to the individual and in the confidence in the tax system) which is preferable to punishing the conduct after the fact.[202]

7.179   ASIC also expressed support, noting that:

The availability of injunctions should not be limited to certain types of Commonwealth information. If Commonwealth information is regarded as being of such a nature as to warrant the coverage of secrecy provisions, whose aim is to deter and/or punish its unauthorised disclosure, then it should also warrant the protection of injunctions to prevent its disclosure. Prevention of unauthorised disclosure should be the key priority. If secrecy provisions are unsuccessful in achieving their desired deterrent effect, then injunctions will be the only remaining means of achieving the primary purpose of the secrecy provisions.[203]

7.180   The Australian Privacy Foundation was of the view that the power to issue an injunction should extend to prevent any subsequent disclosure of Commonwealth information initially disclosed without authority.[204]

ALRC’s views

7.181   There was significant support among stakeholders for the inclusion of an express power to issue injunctions in secrecy offences.

7.182   The new general secrecy and subsequent disclosure offences are expressly limited to disclosures that involve actual or potential harm to the specific public interests discussed in Chapter 5. In the ALRC’s view, these public interests merit the protection of the criminal law and should be further protected by granting the court the power to issue an injunction to restrain a breach of the provisions. Preventing disclosure of such information is a more effective mechanism to prevent the relevant harm than imposing a penalty after the damage is done. In considering whether to issue an injunction to restrain a breach of the provisions, a court will be required to consider the potential for the disclosure to cause harm to the listed public interests.

7.183   The ALRC recommends that the general secrecy offence, and the subsequent disclosure offences, should provide that, where a court is satisfied that a person has disclosed, or is about to disclose, information in contravention of the provisions, the court may grant an injunction to restrain disclosure of the information.

Recommendation 6–6               The general secrecy offence and the subsequent disclosure offences should provide that, where a court is satisfied that a person has disclosed, or is about to disclose, information in contravention of the provisions, the court may grant an injunction to restrain disclosure of the information.

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

[2]           Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009).

[16]          Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
9–1.

[17]         Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23E(2).

[18]         Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6.

[19]         D Boucher, Report of a Review of Information Handling Practices in the Serious Non Compliance Business Line of the Australian Taxation Office (2008), Attachment 9.

[20]         The Treasury, Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions (2006), 19.

[166]       Crimes Act 1914 (Cth) s 85. The Attorney-General’s consent is not required for prosecutions under s 70 of the Crimes Act.

[167]         Criminal Code (Cth) s 93.1.

[168]         Revised Explanatory Memorandum, Criminal Code Amendment (Espionage and Related Matters) Bill 2002 (Cth).

[169]       Intelligence Services Act 2001 (Cth) ss 39, 39A and 40, respectively.

[170]       Ibid s 41. See also Intelligence Services Act 2001 (Cth) sch 1 pt 2 cl 13, which requires the consent of the Attorney-General to prosecute members of the Parliamentary Joint Committee on Intelligence and Security for offences under that Act.

[171]       Criminal Code (Cth) s 80.5.

[172]       Ibid s 115.6.

[173]       Ibid s 268.121.

[174]       Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth (2009), [2.24].

[175]       Ibid, [2.26].

[176]         Commonwealth, Parliamentary Debates, House of Representatives, 4 December 1996, 7714, (D Williams—Attorney-General). Under s 9(5) of the Director of Public Prosecutions Act 1983 (Cth), the CDPP can take over a private prosecution and terminate it.

[177]       Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC 104 (2006), Ch 13.

[178]       Ibid, Rec 13–1.

[179]         Australian Government, Government Response to ALRC Review of Sedition Laws in Australia (2008) <www.ag.gov.au> at 28 May 2009, response to Rec 13–1.

[180]         Commonwealth Director of Public Prosecutions, Submission SR 65, 13 August 2009.

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

[182]         Australian Intelligence Community, Submission SR 37, 6 March 2009.

[183]         Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[184]         The Treasury, Submission SR 22, 19 February 2009.

[185]         Public Interest Advocacy Centre Ltd, Submission SR 38, 9 March 2009.

[186]         Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, ALRC 104 (2006), Rec 13–1.

[187]       Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004), Ch 5.

[188]       See, eg, Gouriet v Union of Post Office Workers [1978] AC 435, 481, where Lord Wilberforce commented on the dangers of using the civil courts to impose injunctions, breach of which may attract criminal punishments.

[189]       Ibid, 481.

[190]       Commonwealth v Fairfax (1980) 147 CLR 39, 50. Mason J held that s 79 of the Crimes Act was not such a provision.

[191]       Australian Law Reform Commission, Principled Regulation: Federal Civil & Administrative Penalties in Australia, ALRC 95 (2002), [2.115].

[192]       Australian Securities & Investments Commission, Consultation, Sydney, 23 May 2001.

[193]       Taxation Administration Act 1953 (Cth) s 17B(1).

[194]         Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 item 1 cl 355-330.

[195]         Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [7.8].

[196]       Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004), Rec 5–1.

[197]         Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
9–6.

[198]         Department of Health and Ageing, Submission SR 81, 28 August 2009; Australian Intelligence Community, Submission SR 77, 20 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009.

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

[200]         Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

[201]         Australian Taxation Office, Submission SR 13, 16 February 2009.

[202]         The Treasury, Submission SR 22, 19 February 2009.

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

[204]         Australian Privacy Foundation, Submission SR 71, 16 August 2009.