Which exceptions and defences should be expressly included?

7.12       Chapter 3 identifies a range of exceptions and defences found in existing secrecy provisions, that is, where disclosure is

  • ·                in the course of a person’s functions and duties;

  • ·                for the purposes of a particular law;

  • ·                authorised by specified persons;

  • ·                to specified persons or entities;

  • ·                for the purposes of legal proceedings;

  • ·                for the purposes of law enforcement;

  • ·                with consent;

  • ·                of de-identified information;

  • ·                to avert threats to life or health; and

  • ·                in the public interest.

7.13       In response to the Issues Paper, Review of Secrecy Laws (IP 34),[14] the AGD suggested the following exceptions and defences should be included in the general secrecy offence: disclosure in the course of an individual’s duties; disclosure in accordance with the law; disclosure where the information has been made lawfully available to the public; disclosure authorised by an agency head; and disclosure to prevent a serious and imminent threat to life or health.[15]

7.14       In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC proposed that the general secrecy offence should expressly include exceptions or defences where disclosure is:

  • ·                in the course of a Commonwealth officer’s functions or duties;

  • ·                authorised by the relevant agency head or minister, and the agency head or minister certifies that the disclosure is in the public interest; or

  • ·                of information that is already in the public domain as the result of a lawful disclosure.[16]

7.15       In this section, the ALRC considers stakeholder response to this proposal and examines how the defences in the Criminal Code would operate in relation to the general secrecy offence.

In the course of an officer’s functions and duties

7.16       Secrecy provisions commonly allow information to be disclosed in the performance of a person’s functions and duties as an employee or officer. For example, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provides that secrecy provisions do not extend to a person handling information ‘in the performance of the person’s functions or duties’ under the Act.[17]

7.17       The ‘performance of duties’ exception has been interpreted widely to govern all that is incidental to carrying out the functions and duties authorised by an officer’s employment.[18] However, the Australian Government Solicitor has advised that the duties authorised by an officer’s employment extend only to those duties that have some basis in the legislation governing the officer, such as legislation administered by the employing agency or the Public Service Act 1999 (Cth).[19]

7.18       The Treasury’s review of taxation secrecy and disclosure provisions (the Taxation Secrecy Review) noted that the meaning of disclosure in the ‘course of duties of an officer’ is uncertain and should be clarified.[20] Issues have arisen in the taxation context in relation to the release of information by taxation officers for the purposes of another agency, for example, a law enforcement agency. The Explanatory Material to the Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) (the Tax Laws Exposure Draft Bill) notes that:

Specific disclosures for taxation officers are found across the taxation laws. These generally provide for disclosures to be made by the Australian Taxation Office (ATO) to another Government agency in circumstances in which taxpayer information will be used to enable that other agency to fulfil some aspect of its function more effectively.[21]

7.19       The Tax Laws Exposure Draft Bill, like a number of existing specific secrecy provisions, attempts to clarify some of the ambiguities by providing a non-exhaustive list of disclosures that fall within the ‘performance of duties’ exception.[22] Some of these are quite general—for example, ‘for the purpose of administering a taxation law’,[23] or ‘for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a taxation law’.[24] Some are more specific—for example, ‘for the purpose of determining whether to make an ex gratia payment; or administering such a payment; in connection with administering a taxation law’.[25]

7.20       The specific secrecy provisions regulating the activity of the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulation Authority (APRA), and the Australian Bureau of Statistics are also in the form of a general prohibition on disclosure, followed by a list of situations in which disclosure is authorised.[26] For example, s 127 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) provides a detailed list of situations in which disclosure is specifically authorised—for example, to the Minister, to APRA or to a Royal Commission; but also includes more open ended elements—for example, s 127(3) provides that a disclosure is authorised where it is for the purposes of performing functions as a member, staff member or ASIC delegate.

7.21       In DP 74, the ALRC proposed that the general secrecy offence should provide an exception for disclosures in the course of a Commonwealth officer’s functions or duties.[27] The ALRC considers that it would not be possible for the general secrecy offence to include a list of authorised disclosures because the offence covers all Commonwealth officers and all Commonwealth information. The ALRC expressed the view that it would be possible to clarify the scope of the proposed exception through the legislation governing particular agencies, agency guidelines or inter-agency memorandums of understanding (MOUs).

Submissions and consultations

7.22       The ATO submitted that a general exception permitting disclosures in the performance of an officer’s duties was fundamental to the proper functioning of the taxation system:

The performance of duties exception is flexible enough to allow disclosures of information which may not arise directly under a taxation law, but which relate to the ATO’s administration of taxation laws. For example, it allows disclosures for the purpose of complying with equitable, common law and statutory obligations, such as responding to a request for a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977, and producing information in response to certain court orders. The ATO considers that the flexibility of this exception is integral to allowing the ATO to comply with these broader legislative, equitable and common law obligations.[28]

7.23       The ATO noted that the phrase ‘in the performance of duties’ has had significant judicial consideration which has assisted the ATO in determining the scope of the exception:

In some limited circumstances there will be uncertainty about whether a particular disclosure will be permitted by this exception. However, it is our experience that generally whether a disclosure is within the performance of an officer’s duties is capable of ascertainment. In addition, the performance of duties exception is read with reference to its legislative background; in the tax context, by reference to those duties which are related to or connected to the performance of a person’s duties as an officer.[29]

7.24       The Treasury also expressed support for a ‘performance of duty’ exception, on the basis that there is existing jurisprudence around the scope of the term.[30]

7.25       ASIC submitted that the specific circumstances in which disclosures should be permitted must be determined by reference to the functions and duties of each Commonwealth agency. ASIC noted that where secrecy provisions attempt to list authorised disclosures—as in s 127 of the ASIC Act—it is important to ensure that the list is inclusive, rather than exhaustive, and suggested that s 127 of the ASIC Act may be an appropriate model.[31]

7.26       While agreeing that there is a considerable body of case law around the term ‘in the performance of duties’, the Department of Human Services (DHS) noted that its meaning remained vexed.[32] Some stakeholders were also concerned that the exception may be too broad and create uncertainty.[33] The Australian Transaction Reports and Analysis Centre (AUSTRAC) considered that attempting to define the limits of the exception in agency guidelines or inter-agency MOUs ‘would be problematic as they would not be legally binding and would need to be job specific’. Instead, AUSTRAC suggested that the exception in the general secrecy offence would need to be supported by specific secrecy provisions that define the ambit of those functions and duties.[34]

7.27       On the other hand, the AGD suggested that, in addition to legislative lists of authorised disclosures:

Memorandums of understanding (MOU) or internal guidelines may also be used to set out circumstances when information can be disclosed from one agency to another. This may provide a more flexible approach, as the detail of information sharing arrangements can be left to documents more easily amended.[35]

ALRC’s views

7.28       In the ALRC’s view, it is essential to include an exception in the general secrecy offence for disclosure in the course of an officer’s functions or duties. Although detailed lists of authorised disclosures may be included in specific secrecy provisions governing the activities of specific agencies, this will not be possible in the general secrecy offence. This is because the provision is intended to apply across all agencies and all Commonwealth information. It is, however, possible to provide clarity about the scope of the exception in other ways.

7.29       For example, the legislation regulating some specific agencies, such as the ATO and ASIC, includes a list of authorised disclosures, which are indicative of what falls within an officer’s duties or functions in those agencies. Such disclosures would fall within the ‘duties and functions’ exception to the general secrecy offence.[36] In relation to a number of existing secrecy provisions that set up a general prohibition on disclosure and then proceed to list exceptions to the prohibition, it may be possible to remove the prohibition—while leaving the list of authorised disclosures in place—and rely, instead, on the general secrecy offence.[37]

7.30       Most agencies are not, however, governed by legislation that includes detailed information-sharing regimes. In these circumstances the framework for an officer’s duties and functions will be set by more general instruments, for example the Public Service Act in relation to Australian Public Service (APS) employees, or contractual terms for contracted service providers.

7.31       Within the boundaries set by these framework instruments, it is possible to indicate in more detail those disclosures that fall within an officer’s functions and duties by issuing agency policies and guidelines or inter-agency MOUs dealing with information sharing. As discussed in Chapter 14, the Australian Public Service Commission advises that agencies should ‘establish clear policies and guidelines so that employees are aware of the provisions that govern the management of information’.[38] Any such policies, guidelines or MOUs must, however, be consistent with the legislative framework.

On the authority of specified persons

7.32       Chapter 3 considers a range of secrecy provisions that allow disclosure of information at the discretion and with the authority of specified office-holders, such as the Commissioner of Taxation,[39] or other persons, including agency heads[40] or the responsible minister.[41] A number of these provisions require the authorising person to certify that the disclosure is necessary in the public interest.

7.33       For example, s 86-3 of the Aged Care Act 1997 (Cth) provides that the Secretary of the Department of Health and Ageing (DoHA) may disclose protected information in a range of circumstances including ‘if the Secretary certifies, in writing, that it is necessary in the public interest to do so in a particular case—to such people and for such purposes as the Secretary determines’. Section 130(3) of the Health Insurance Act 1973 (Cth) provides that the agency head may disclose information where the Minister certifies, by instrument in writing, that disclosure is necessary in the public interest.[42]

7.34       In the administrative context, reg 2.1 of the Public Service Regulations 1999 (Cth) provides that a disclosure is allowed if the information is disclosed in accordance with an authorisation given by an agency head.[43] As discussed in Chapter 13, similar exceptions exist in some states and territories, for example, s 57 of the Public Sector Management Act 1995 (SA) allows disclosures of official information where they are ‘made with the permission of the Chief Executive of the administrative unit in which the employee is employed’.

7.35       In DP 74 the ALRC proposed that the general secrecy offence should be subject to an exception where the disclosure is authorised by the relevant agency head or minister, and the agency head or minister certifies that the disclosure is in the public interest.[44]

Submissions and consultations

7.36       A number of stakeholders expressed concern about the breadth of the proposed exception. DoHA, for example, noted that the proposed exception was broader than those in the Aged Care Act and the Health Insurance Act, which are limited to disclosures ‘necessary in the public interest’.[45]

7.37       The ATO submitted that, in the taxation context, it would not be appropriate for disclosures of taxpayer information to be made on the authority of specified persons. In the ATO’s view, such discretionary authority would provide less certainty for tax officers and taxpayers and would potentially allow the disclosure of information damaging to individuals or corporations.[46] The Treasury noted that the Taxation Secrecy Review also considered, and did not pursue, a broad discretion for the Commissioner of Taxation to authorise disclosures. The Treasury expressed the view that:

It is important for the legislature to turn its mind to the particular instances where it considers a disclosure is warranted. Therefore, Treasury does not support broad provisions permitting disclosures when authorised by some authority.[47]

7.38       The Australian Privacy Foundation was concerned that the exception proposed was too broad, and queried whether the authorisation would have to be made in advance and in writing. The Foundation also expressed the view that an unlimited ad hoc ability to authorise disclosures was objectionable and should at least be subject to objective public interest criteria, adequate controls and reporting requirements to prevent abuse.[48]

7.39       Civil Liberties Australia (CLA) expressed support for the proposed exception.[49] The AGD agreed, stating that, while completely codifying the circumstances in which disclosure is allowed provides clarity and certainty for officers, this approach may prove to be insufficiently flexible:

Including a provision to enable the agency head or other senior officers to authorise disclosure may provide greater flexibility as it may enable disclosure in new or unforeseen circumstances. It also provides a level of accountability by requiring a senior officer to consider whether disclosure would be consistent with policy considerations in a particular case.[50]

ALRC’s views

7.40       An exception for disclosures authorised by an agency head or minister may not be appropriate in specific secrecy provisions, such as the taxation provisions, where the provision sets out a comprehensive list of authorised disclosures. In the ALRC’s view, however, an exception of this kind is necessary in the context of the general secrecy offence. The general secrecy offence is intended to apply to all Commonwealth officers and all Commonwealth information and does not include a comprehensive list of authorised disclosures. In these circumstances, it is necessary to ensure that the provision is flexible enough to meet the operational requirements of government.

7.41       In Chapter 5, the ALRC recommends that the new general secrecy offence apply to those disclosures of Commonwealth information that harm, are reasonably likely to harm, or are intended to harm specified public interests.[51] However, circumstance may arise where disclosure will be in the overall public interest, despite the potential harm. For example, although the public disclosure of certain information is likely to harm Australia’s relations with a particular country—that is, it is reasonably likely to harm the international relations of the Commonwealth—the responsible minister may be of the view that, on balance, it would be in the public interest to disclose the information in order to protect public health or safety.

7.42       Because the information protected by the general secrecy offence has the potential to cause serious harm, the ALRC’s view is that, where disclosure of the information does not fall clearly within an officer’s functions or duties, he or she should be required to seek authority for the disclosure from the agency head or the minister. Where harm is likely to be caused to the specified public interests by the disclosure of information, the competing public interests should be considered at a senior level before the information is disclosed.

7.43       Decisions of an agency head or minister to authorise disclosure in the public interest will not be unlimited or unconstrained. In construing the scope of the exception, the subject matter and purpose of the secrecy offence will be relevant.[52] In addition, administrative law principles require, for example, that the agency head or minister exercise his or her discretion for an authorised purpose and that any decision must be reasonable and made in good faith.

7.44       The exception is intended to introduce an element of flexibility into the offence regime—for example, where it is necessary to seek authorisation in an emergency. The ALRC is not, therefore, recommending that the authority must be in writing. However, the APS Values and Code of Conduct in Practice suggests that where APS employees seek advice because they are unsure about whether to disclose information, they should keep a record of that advice.[53]

7.45       The Exposure Draft Freedom of Information Amendment (Reform) Bill 2009 provides that an agency or minister must provide access to a document that is conditionally exempt, ‘unless (in the circumstances) access to the document at that time would on balance, be contrary to the public interest’. The ALRC has adopted similar wording in the recommended exception to the general secrecy offence, that is, that it is an exception to the offence if the information was disclosed in accordance with an authorisation given by an agency head or minister that disclosure would, on balance, be in the public interest.

Information already in the public domain

7.46       Regulation 2.1(5) of the Public Service Regulations provides an exception where information ‘is already in the public domain as the result of a disclosure of information that is lawful under these Regulations or another law’. The Explanatory Memorandum to the legislative instrument that enacted the current version of reg 2.1 notes that this exception:

would not apply if at the time of disclosure the information had not yet been lawfully disclosed, for example the matter was made public via a budget ‘leak’. Nor would it apply if disclosure would have the effect of expressly or impliedly disclosing other information to which subregulations 2.1(3) and 2.1(4) apply. An example would be where a public servant makes a disclosure which, because of their official role, has the effect of confirming a previous leak of information that had been provided in confidence by another government.[54]

7.47       The disclosure of information already in the public domain was considered in the Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions:

the tax secrecy and disclosure rules protect information obtained by the Commissioner in order to maintain the public confidence. However, these rules need not protect tax information that is already in the public domain. … While the current formulation of most secrecy and disclosure provisions allows such disclosures (according to government legal advice), this has not always been clear.[55]

7.48       Under the Tax Laws Exposure Draft Bill, it is not an offence to disclose information that is lawfully available to the public:

A publicly available source would include things such as the electoral roll, open court records, books, the Internet, newspapers and other material that is generally available to the public. The information does not cease to be ‘publicly available’ if a member of the public has to pay a fee to access that information.[56]

7.49       Section 91.2 of the Criminal Code provides a defence in relation to the espionage offences in s 91.1 where the relevant information is lawfully available:

(1)  It is a defence to a prosecution of an offence against subsection 91.1(1) or (2) that the information the person communicates or makes available is information that has already been communicated or made available to the public with the authority of the Commonwealth.

(2)  It is a defence to a prosecution of an offence against subsection 91.1(3) or (4) that the record of information the person makes, obtains or copies is a record of information that has already been communicated or made available to the public with the authority of the Commonwealth.

Note: A defendant bears an evidential burden in relation to the matters in subsections (1) and (2). See subsection 13.3(3).

7.50       In DP 74, the ALRC proposed that the general secrecy offence and the subsequent disclosure offence should include exceptions where the disclosure is of information that is already in the public domain as the result of a lawful disclosure.[57]

Submissions and consultations

7.51       A number of stakeholders expressed support for this proposal.[58] CLA was also supportive but submitted that the exception should not be limited to ‘information that is already in the public domain as the result of a lawful disclosure’ on the basis that it is irrelevant how the information came into the public domain.[59] Liberty Victoria agreed that it would be arbitrary to impose criminal liability on those who disclose information that is already in the public domain:

For instance, while a journalist may be the subject of penalty for subsequent handling of secret information, a member of the public should not be punished for repeating that information once it has been published or otherwise made public.

As a result Liberty Victoria strongly supports an exception from penalty for disclosure of information already in the public domain.[60]

7.52       Some stakeholders cautioned, however, that it is sometimes difficult to establish whether information is in the public domain.[61]

7.53       The Commonwealth Director of Public Prosecutions (CDPP) noted that under the Criminal Code, if this exception was framed as suggested, the defendant would bear an ‘evidential burden’ in relation to whether information is in the public domain as the result of a lawful disclosure.[62] Once that burden is met by the defendant, the prosecution bears a legal burden to disprove the matter.[63] The CDPP stated that it may be difficult for the prosecution to disprove that information is in the public domain as the result of a lawful disclosure.[64]

7.54       Some stakeholders specifically commented on the inclusion of this exception in the subsequent disclosure offence. The ATO supported the inclusion of the proposed exception.[65] Liberty Victoria suggested, however, that it may be too limited:

if the information is already in the public domain (whether legally or illegally) it may be difficult to attempt to restrict members of the public from repeating that disclosure. Liberty also believes that the ALRC’s proposal may reduce certainty regarding the legality of subsequent disclosure in certain circumstances, for instance, where the precise circumstances (and the legality) of the initial disclosure may be unknown to the subsequent discloser.[66]

ALRC’s views

7.55       As discussed in Chapter 5, the recommended general secrecy offence would impose criminal liability only where the disclosure harms, is reasonably likely to harm, or is intended to harm specified public interests. Public interests such as national security and international relations can be harmed by the disclosure of information, even where the information is already in the public domain—for example, where information has been ‘leaked’ but there is uncertainty about whether or not the information is genuine or complete. A Commonwealth officer may harm a relevant public interest by disclosing the same information, thereby confirming that the information is genuinely Commonwealth information. The ALRC recommends, therefore, that the general secrecy offence should include an exception for disclosure of information in the public domain, but only where the information is lawfully in the public domain.

7.56       The issue of when information is in the public domain has been extensively considered by the courts in the context of breach of confidence. Information is in the public domain when it has received such publicity among relevant groups in the community as to effectively destroy the usefulness of its secrecy to its owner, or to destroy any usefulness in enforcing the original obligation of confidentiality.[67]

7.57       In Chapter 6, the ALRC recommends two subsequent disclosure offences.[68] The first offence relates to information disclosed by a Commonwealth officer to a third party in breach of the general secrecy offence. The second relates to information disclosed by a Commonwealth officer to a third party on terms requiring it to be held in confidence.

7.58       In both these situations it is possible that the information will be lawfully put into the public domain after the Commonwealth officer has disclosed it to the relevant third party. In order to ensure that the third party is not subject to criminal sanctions for disclosing the information once it is lawfully in the public domain, both subsequent disclosure offences should include an exception in similar terms to the exception provided in the general secrecy offence.

7.59       For the reasons articulated above, this exception should also be limited to information that is in the public domain as the result of a lawful disclosure. Otherwise, a third party who has acquired Commonwealth information in breach of the general secrecy offence could rely on an earlier leak to justify publishing the information.

7.60       In relation to the burden of proof, the ALRC’s view is that the defendant should bear an evidential burden in relation to this exception. That is, the defendant should be required to adduce or point to evidence that suggests a reasonable possibility that the information is in the public domain as the result of a lawful disclosure, for example, a press release or government report. The prosecution would then be required to refute the defence beyond reasonable doubt, that is, to prove that the information is in the public domain as a result of an unlawful disclosure, for example, that the press release was unauthorised, or fraudulent. This approach is reflected in s 91.2 of the Criminal Code, set out above.

Recommendation 6–1               The general secrecy offence should expressly include exceptions applying where the disclosure is:

(a)      in the course of a Commonwealth officer’s functions or duties;

(b)     in accordance with an authorisation given by an agency head or minister that the disclosure would, on balance, be in the public interest; or

(c)      of information that is already in the public domain as the result of a lawful disclosure.

Recommendation 6–2               The subsequent disclosure offences should include an exception where the disclosure is of information that is already in the public domain as the result of a lawful disclosure.

[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).

[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.

[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.

[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.

[21]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [5.6].

[22]          Ibid, [5.8].

[23]          Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 pt 1 cl 355-45(2) table item 1.

[24]          Ibid sch 1 pt 1 cl 355-45(2) table item 3.

[25]          Ibid sch 1 pt 1 cl 355-45 table item 5.

[26]          Australian Securities and Investments Commission Act 2001 (Cth) s 127; Australian Prudential Regulation Authority Act 1998 (Cth) s 56; Census and Statistics Act 1905 (Cth) s 19.

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

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

[29]          Australian Taxation Office, Submission SR 55, 7 August 2009.

[30]          The Treasury, Submission SR 60, 10 August 2009; The Treasury, Submission SR 22, 19 February 2009.

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

[32]          Department of Human Services, Submission SR 26, 20 February 2009.

[33]          Non-Custodial Parents Party (Equal Parenting), Submission SR 82, 3 September 2009; Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009.

[34]          Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009.

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

[36]          Such disclosures may also fall within the ‘conduct justified or excused by or under law’ exception, discussed below. The interaction between the general secrecy offence and specific secrecy offences is discussed further in Ch 10.

[37]          This issue is discussed further in Ch 4.

[38]          Australian Public Service Commission, APS Values and Code of Conduct in Practice (2005) <www.
apsc.gov.au> at 30 November 2009, Ch 3.

[39]          Superannuation Industry (Supervision) Act 1993 (Cth) s 252C(5)(b).

[40]          See, eg, Customs Administration Act 1985 (Cth) s 16(3).

[41]          See, eg, Health Insurance Act 1973 (Cth) s 130(3).

[42]          See also Law Enforcement Integrity Commissioner Act 2006 (Cth) s 209; Ombudsman Act 1976 (Cth) s 35A.

[43]          The Public Service Act 1999 (Cth) defines agency head to mean the secretary of a department, the head of an executive agency, or the head of a statutory agency: s 7.

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

[45]          Department of Health and Ageing, Submission SR 81, 28 August 2009.

[46]          Australian Taxation Office, Submission SR 55, 7 August 2009; Australian Taxation Office, Submission SR 13, 16 February 2009.

[47]          The Treasury, Submission SR 60, 10 August 2009; The Treasury, Submission SR 22, 19 February 2009.

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

[49]          Civil Liberties Australia, Submission SR 47, 27 July 2009.

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

[51]          Recommendation 5–1.

[52]          Acts Interpretation Act 1901 (Cth) s 15AA.

[53]          Australian Public Service Commission, APS Values and Code of Conduct in Practice (2005) <www.
apsc.gov.au> at 30 November 2009, Ch 3.

[54]          Explanatory Statement, Public Service Amendment Regulations (No 1) 2006 (Cth) (SLO No 183 of 2006).

[55]          The Treasury, Discussion Paper for the Review of Taxation Secrecy and Disclosure Provisions (2006),
10–11.

[56]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [4.30].

[57]          Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposals
8–4, 9–1(c).

[58]          Department of Health and Ageing, Submission SR 81, 28 August 2009; The Treasury, Submission SR 60, 10 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009. See also: Australian Securities & Investments Commission, Submission SR 41, 17 March 2009; Attorney-General’s Department, Submission SR 36, 6 March 2009; The Treasury, Submission SR 22, 19 February 2009; Commonwealth Director of Public Prosecutions, Submission SR 17, 18 February 2009.

[59]          Civil Liberties Australia, Submission SR 47, 27 July 2009.

[60]          Liberty Victoria, Submission SR 19, 18 February 2009.

[61]          Department of Health and Ageing, Submission SR 81, 28 August 2009; Department of Human Services, Submission SR 26, 20 February 2009.

[62]          Criminal Code (Cth) s 13.3: As noted above, an evidential burden means ‘the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist’.

[63]          Ibid s 13.1(2).

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

[65]          Australian Taxation Office, Submission SR 55, 7 August 2009.

[66]          Liberty Victoria, Submission SR 50, 5 August 2009.

[67]          Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413.

[68]          Recommendations 6–6, 6–7.