Penalties

7.131   The Terms of Reference for this Inquiry ask the ALRC to consider options for ensuring a consistent approach across government to the protection of Commonwealth information. The Guide to Framing Commonwealth Offences directs those framing offences to ‘ensure [the] penalty fits with other penalties in Commonwealth law’.[145] In Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103), the ALRC emphasised the importance of imposing consistent sentences on offenders for similar offences.[146] This can only be achieved if the maximum penalties specified for similar offences are also consistent. In the following section of the chapter, the ALRC, in keeping with this approach, recommends a penalty regime for the general secrecy offence and the subsequent disclosure offences.

Penalties in existing secrecy provisions

7.132   Currently, both ss 70 and 79(3) of the Crimes Act stipulate a maximum penalty of imprisonment for two years. Section 4B of the Crimes Act provides a formula for the calculation of a maximum fine where a provision specifies a maximum term of imprisonment but is silent on the maximum fine. Under this provision, where a natural person is convicted of an offence against ss 70 or 79(3), if the court thinks it appropriate in all the circumstances, the court may impose instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 120 penalty units.[147]

7.133   Section 4B(3) of the Crimes Act provides that where a body corporate is convicted of an offence, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to five times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.

7.134   Sections 70 and 79(3) do not require the prosecution to establish that the unauthorised disclosure caused harm, was reasonably likely to cause harm or was intended to cause harm to any specified public interest. Where an element of this nature is present in similar existing offences, the maximum penalties prescribed tend to be higher. For example:

  • ·                s 79(2) of the Crimes Act sets out an offence for communicating certain prescribed information ‘with the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions’—this offence stipulates a maximum penalty of seven years;

  • ·                s 142.2 of the Criminal Code includes an offence for using official information where a Commonwealth public official intends to dishonestly obtain a benefit for himself or herself or for another person; or dishonestly cause a detriment to another person—this offence stipulates a maximum penalty of five years;

  • ·                s 22(1) of the Witness Protection Act 1994 (Cth) prohibits the disclosure of information about the identity or location of a person who is or has been a participant in the National Witness Protection Program, where the disclosure compromises the person’s security—this offence attracts a maximum penalty of 10 years imprisonment; and

  • ·                the espionage offences in the Criminal Code—which include communicating information concerning the Commonwealth’s security or defence to another country intending to prejudice the Commonwealth’s security or defence—these offences attract a maximum penalty of 25 years.

7.135   In sentencing a federal offender, s 16A(2) of the Crimes Act requires a court to take into account certain factors, including the ‘nature and circumstances of the offence’ and ‘any injury, loss or damage resulting from the offence’. The ‘nature and circumstances’ of the offence might include, for example, the sensitivity of the information disclosed. The ‘injury, loss or damage resulting from the offence’ would include the consequences of disclosure, for example, whether and to what degree the disclosure harmed national security or posed a risk to an individual’s life or safety.

Penalties for the general secrecy offence

7.136   In DP 74 the ALRC proposed a three-tier general secrecy offence with escalating penalties.[148] In relation to the first-tier offence—which attached strict liability to the requirement to prove harm—the ALRC proposed a maximum penalty of two years imprisonment, or a pecuniary penalty not exceeding 120 penalty units, or both. In relation to the second-tier offence—which required the prosecution to prove that the defendant knew, or was reckless as to whether, or intended the disclosure to harm personal privacy or commercial affairs—the ALRC proposed a maximum penalty of five years imprisonment, or a pecuniary penalty not exceeding 300 penalty units, or both. In relation to the third-tier offence—which required the prosecution to prove that the defendant knew, or was reckless as to whether, or intended the disclosure to harm the essential public interests discussed in Chapter 5—the ALRC proposed a maximum penalty of seven years imprisonment, or a pecuniary penalty not exceeding 420 penalty units, or both.[149]

7.137   In light of other recommendations in this Report, it is no longer necessary to consider penalties for a three-tier general secrecy offence. In Chapter 6, the ALRC considers and rejects the proposal to include an offence that attaches strict liability to the requirement that the disclosure caused harm. In Chapter 5, the ALRC considers and rejects the proposal that the general secrecy offence cover disclosures that have a substantial adverse effect on personal privacy or commercial affairs. Because of this it is only necessary to consider what penalty should attach to the single-tier general secrecy offence recommended in this Report.

Submissions and consultations

7.138   In its submission to IP 34, the AGD noted that currently most secrecy offences carry a maximum penalty of two years but that, where particularly sensitive or national security information was involved, the imposition of higher maximum penalties may be justified:

The underlying principle for the imposition of higher maximum penalties in this latter category of offences is that there are certain types of Commonwealth information, the unauthorised disclosure of which could cause significant harm to the public interest and as such require additional protection. By its nature, the unauthorised disclosure of national security information will carry a higher likelihood of harm to the public interest. For example, national security information that has been received from sensitive sources such as foreign governments could not only damage international relations with that government but also jeopardise the security or defence of Australia.[150]

7.139   The Australian Commission for Law Enforcement Integrity (ACLEI) noted that s 127A of the Police Regulation Act 1958 (Vic) includes two tiers. The first tier addresses the unauthorised disclosure of official information and imposes a maximum penalty of two years imprisonment, 240 penalty units, or both. The second tier addresses the unauthorised disclosure of official information where the officer knows, or is reckless as to whether, the information may be used to harm specified public interests including endangering the life or safety of any person, or impeding or interfering with the administration of justice. This offence attracts a maximum penalty of five years imprisonment, 600 penalty units, or both. ACLEI was of the view that, where there is an element of corrupt intent, secrecy offences ought to carry a penalty of no less than seven years.[151]

ALRC’s views

7.140   In Chapter 6, the ALRC recommends that the general secrecy offence should apply where a Commonwealth officer discloses Commonwealth information and knows, is reckless as to whether, or intends the disclosure will:

  • ·                damage the security, defence or international relations of the Commonwealth;

  • ·                prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;

  • ·                endanger the life or physical safety of any person; or

  • ·                prejudice the protection of public safety.[152]

7.141   The disclosures covered by this offence involve potential harm of a high order, including endangering individual lives or the safety of the Australian community. A maximum penalty of seven years imprisonment is consistent with the AGD Guide to Framing Commonwealth Offences which states that ‘a heavier penalty will be appropriate where … the consequences of the commission of the offence are particularly dangerous or damaging’.[153]

7.142   It is also consistent with the penalties imposed under s 79(2) of the Crimes Act and falls within the range of maximum penalties included in offence provisions with a harm requirement, discussed above. The ALRC recommends, therefore, in relation to the general secrecy offence a maximum penalty of seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

Recommendation 6–4               The general secrecy offence should stipulate a maximum penalty of seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

Penalties for the subsequent disclosure offences

7.143   In Chapter 6, the ALRC proposes the creation of two offences for the subsequent disclosure of Commonwealth information in certain circumstances. The offences would be committed where a third party subsequently disclosed information without authority and a Commonwealth officer had initially disclosed the information:

  • ·                in breach of the general secrecy offence;[154] or

  • ·                on terms requiring it to be held in confidence.[155]

7.144   In relation to both offences, it would be necessary to show that the person who received the information and then subsequently disclosed it without authority knew, or was reckless as to whether, the subsequent disclosure of the information would harm, or was reasonably likely to harm, one of the public interests set out in Recommendation 5–1.

7.145   In DP 74, the ALRC proposed only one subsequent disclosure offence, but that the offence should have two tiers, the first tier dealing with disclosures that harmed personal privacy or commercial affairs and the second tier dealing with disclosures that harmed public interests similar to those set out in Recommendation 5–1. The ALRC also proposed that the maximum penalties for the equivalent tiers in the general secrecy offence and the subsequent disclosure offence should be consistent.[156]

7.146   Examples of provisions which impose the same penalty for initial and subsequent disclosures of protected information can be found in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)[157] and the Aged Care Act.[158]

7.147   The Guide to Framing Commonwealth Offences sets out penalty benchmarks for certain classes of offences.[159] It specifies a penalty benchmark for breach of a confidentiality requirement as two years imprisonment or 120 penalty units—citing as examples provisions which relate to both initial[160] and subsequent[161] unauthorised handling of Commonwealth information.

Submissions and consultations

7.148   In its submission to IP 34, the AGD expressed the view that:

If the fault elements and harm caused by the conduct are the same, it would be reasonable for the penalty to be the same regardless of whether the offence is one of first or subsequent unauthorised handling. The penalties that apply to existing comparable offences should be considered in setting penalties. For example if an individual is aware that the disclosure of certain protected information will prejudice Australia’s security it would be appropriate to apply the same penalty regardless of whether it was an initial or subsequent unauthorised disclosure.[162]

7.149   A number of other stakeholders agreed that the same penalty should apply to both initial and subsequent disclosures,[163] with ASIC noting that the potential harm arising from both the initial and subsequent disclosures is the same.[164]

7.150   On the other hand, the Public Interest Advocacy Centre’s (PIAC) view was that the penalties for subsequent disclosure should be lower, ‘except where intent to damage Australia’s national interest is proven’.[165]

ALRC’s views

7.151   In the ALRC’s view, the level of culpability and potential harm encompassed by the subsequent disclosure offences is of a similar order to that reflected in the recommended general secrecy offence. The ALRC recommends, therefore, that the maximum penalties stipulated in the subsequent disclosure offences should be the same as the maximum penalty stipulated in the general secrecy offence.

Recommendation 6–5               The subsequent disclosure offences should stipulate maximum penalties of seven years imprisonment, a pecuniary penalty not exceeding 420 penalty units, or both.

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

[14]          Australian Law Reform Commission, Review of Secrecy Laws, Issues Paper 34 (2008).

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

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

[145]       Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 38.

[146]         Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, ALRC 103 (2006), Rec 5–1(d).

[147]         At the time of writing, this amounts to $13,200: Crimes Act 1914 (Cth) s 4AA.

[148]       Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
9–3.

[149]       Ibid, Proposal 9–3(b).

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

[151]         Australian Commission for Law Enforcement Integrity, Submission SR 18, 18 February 2009.

[152]         Recommendation 6–5.

[153]         Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 35.

[154]         Recommendation 6–6.

[155]         Recommendation 6–7.

[156]         Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposals
9–4, 9–5.

[157]       Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ss 121(2), 127.

[158]       Aged Care Act 1997 (Cth) ss 86-2, 86-5.

[159]       Australian Government Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2007), 47.

[160]       Data-matching Program (Assistance and Tax) Act 1990 (Cth) s 15; Customs Administration Act 1985 (Cth) s 16(2).

[161]       Australian Hearing Services Act 1991 (Cth) s 67(8).

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

[163]       Department of Health and Ageing, Submission SR 81, 28 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009. See also The Treasury, Submission SR 22, 19 February 2009; Liberty Victoria, Submission SR 19, 18 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

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

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