Which exceptions and defences should not be expressly included?

Lawful authority

7.61       The Criminal Code includes a defence of ‘lawful authority’ where ‘the conduct constituting the offence is justified or excused by or under a law’.[69] The Commonwealth Criminal Code: A Guide for Practitioners states that this provision:

Provide[s] a general defence which will excuse or justify conduct which is authorised by law. The law in question must be a law of the Commonwealth … The reference to conduct which is justified or excused ‘by or under a law’ recognises that the authorisation may be indirect or implied, rather than explicit.[70]

7.62       The Code defence will protect disclosures in a range of circumstances, including those made in accordance with provisions that:

  • ·                expressly allow disclosures to particular persons or agencies—such as s 127 of the ASIC Act discussed above;

  • ·                allow disclosures ‘for the purposes of the Act’—such as s 3C(2A) of the Taxation Administration Act 1953 (Cth); and

  • ·                allow disclosures for the purposes of another Act—such as s 79A(2) of the Reserve Bank Act 1959 (Cth), which permits disclosure for the purposes of that Act and certain other Acts includingthe Corporations Act 2001 (Cth), Payment Systems (Regulation) Act 1998 (Cth); Payment Systems and Netting Act 1998 (Cth) and Banking Act 1959 (Cth).

7.63       In its submission to this Inquiry, the CDPP noted that because the defence of lawful authority in s 10.5 of the Criminal Code is of general application, it is not necessary to duplicate the defence in other legislation containing secrecy provisions.[71]

ALRC’s views

7.64       Given the general application of the Code defence of lawful authority, it is not necessary to expressly include this defence in the general secrecy offence.

7.65       In Chapter 14, the ALRC proposes that Australian Government agencies should develop and implement policies clarifying the application of relevant secrecy laws to their information holdings, including the circumstances in which the unauthorised handling of information could lead to criminal prosecution.[72] It would be helpful to include a reference in any such policy to the ‘lawful authority’ defence.

7.66       In addition, the ALRC recommends that Australian Government agencies should develop and administer training and development programs for their employees about the information-handling obligations relevant to their position. Any such training and development should allude to the obligations imposed by the general secrecy offence and relevant exceptions and defences, including ‘lawful authority’.[73]

7.67       Finally, the ALRC recommends that private sector organisations that perform services for or on behalf of the Australian Government under contract should ensure that all employees who have access to Commonwealth information are aware of their obligations of secrecy, including the circumstances in which criminal or civil liability could result.[74] This should include reference to the obligations imposed by the new general secrecy offence and relevant exceptions and defences, including ‘lawful authority’.

To specified persons or entities

7.68       As discussed in Chapter 3, a number of secrecy provisions provide exceptions to allow disclosures to specified persons or entities, such as ministers or government agencies.[75] These provisions are aimed at facilitating the legitimate sharing of information within government.

7.69       In other circumstances, provisions require that information must not be disclosed to specified persons—for example, to the minister. The Explanatory Material to the Tax Laws Exposure Draft Bill provides that information may only be disclosed to ministers where this is specifically provided for in the legislation:

As with the current law, this recognises the importance of a separation between the Executive and Legislative arms of government and the administration of the taxation laws and sensitivities associated with the possible release of taxpayer information into a public forum.[76]

7.70       It would not be an offence, however, under the Tax Laws Exposure Draft Bill for a taxation officer to provide taxpayer information to a minister for the purpose of enabling a minister to exercise a power or perform a function under a taxation law.[77]

Submissions and consultations

7.71       In its submission, the AGD noted that:

Secrecy provisions that contain specific provisions about disclosure to Ministers are generally only found in confidentiality provisions relating to information collected by government agencies for service delivery purposes. In these cases, such information may not, as a general rule, need to be provided to Ministers unless the Minister has a particular role in the relevant decision-making process.[78]

ALRC’s views

7.72       The ALRC is not recommending the inclusion of a list in the general secrecy offence allowing disclosure to ministers or to other specified persons or entities. It is not possible to include this level of detail in a general offence applying to all Commonwealth officers and all Commonwealth information. These matters need to be considered at an individual agency level. Disclosures to ministers or other specific persons or entities that have been authorised, for example, in legislation, or under valid agency guidelines or inter-agency MOUs will fall within the exception in the general offence for disclosures in the course of an officer’s functions or duties.

7.73       Where it is necessary to authorise or restrict disclosure of certain Commonwealth information to specified persons or entities, a specific secrecy provision can be used.

For the purposes of law enforcement

7.74       As discussed in Chapter 3, a number of secrecy provisions expressly provide exceptions for the disclosure of information for various law enforcement and investigatory purposes. For example, s 86-3 of the Aged Care Act provides that the Secretary may disclose protected information in a range of circumstances including:

if the Secretary believes, on reasonable grounds, that disclosure of the information is reasonably necessary for:

      (i)   enforcement of the criminal law; or

      (ii)  enforcement of a law imposing a pecuniary penalty; or

      (iii) protection of the public revenue;

to an agency whose functions include that enforcement or protection, for the purposes of that enforcement or protection.

7.75       The Tax Laws Exposure Draft Bill proposes a number of changes to the provisions in taxation legislation dealing with disclosure for the purposes of law enforcement. The Bill expands the range of circumstances in which disclosures can be made to ASIC in order for it to fulfil its law enforcement role. It is proposed that disclosures will be permitted to ASIC for the enforcement of a law administered by ASIC which is a criminal law or which imposes a monetary penalty.[79] The Explanatory Material notes that enforcing a law includes investigating breaches of that law, prosecuting any offences committed under that law, and gathering information to support the investigation and prosecution functions.[80]

7.76       The draft Bill also proposes to amend the provisions allowing disclosure to law enforcement agencies for the enforcement of ‘serious criminal offences’.[81] Under the existing provisions, law enforcement agencies that receive taxpayer information for the purposes of investigating an offence cannot then use that information for the prosecution of the offence unless it is a taxation offence:

Taxpayer information has proved to be a valuable source of intelligence information for the investigation of activities such as money laundering and social security fraud. Such information would also be invaluable for and could form the basis of related prosecutions. This broadening of the disclosure also recognises the changing nature of crime and the need for flexible, whole-of-government responses. It will also ensure that law enforcement agencies can rely on the best evidence for prosecution.[82]

Submissions and consultations

7.77       A number of agencies submitted that it was important to allow the exchange of information with law enforcement and regulatory agencies, and to ensure that secrecy provisions did not interfere with these processes. In its submission, the CDPP noted that:

the interaction between the secrecy provisions in the legislation of investigation agencies and the criminal process can be problematic. In particular, secrecy provisions can create a very narrow basis for disclosure of information to other investigation agencies. This, in turn, impacts on the investigation of serious criminal offences …

The CDPP is aware of matters where investigation agencies have requested information from the ATO as part of an investigation of a serious Commonwealth offence, where the ATO has been unable to provide that information, as disclosure was prevented by the taxation secrecy provisions.[83]

7.78       The ATO also noted that the existing taxation secrecy provisions inhibited its ability to share information with law enforcement agencies.[84] The Department of Education, Employment and Workplace Relations (DEEWR) noted that:

if there is a commitment to a whole of government approach to minimising fraud against the Commonwealth and protecting Australia’s domestic and international interests, then there is a need to ensure that secrecy provisions do not unnecessarily constrain an agency’s ability to share information with another agency that has direct responsibility for a particular regulatory function.[85]

7.79       The Australian Federal Police and the CDPP expressed the view that the general secrecy offence should include an express exception for the exchange of information for law enforcement purposes.[86] The CDPP noted the changing nature of law enforcement and the fact that serious criminal activity is no longer confined to one identifiable area:

By way of example, those involved in trafficking narcotics will also commonly be involved in money laundering and tax evasion. Similarly, terrorist activity may not only involve acts of, or in direct preparation of, terrorism. While direct Australian experience is limited, it is generally accepted that terrorist activity may be accompanied with other forms of illegal activity, such as offences against immigration/passport laws, customs offences, money laundering, fraud, firearm offences, taxation fraud, identity fraud and social security fraud. … Active co-operation between a range of Government agencies is important to identify, investigate and prosecute such serious criminal activity.[87]

7.80       The AGD’s view was that, while the sharing of information with law enforcement agencies may come within one of the other proposed exceptions, there would be merit in having an express exception for disclosure to law enforcement agencies. The AGD suggested that an exception for providing information to law enforcement and regulatory agencies could include a threshold—for example, ‘a Commonwealth officer may need to have a reasonable belief that the information is relevant to investigating a possible criminal offence or regulatory breach’.[88]

7.81       The Treasury also expressed support for provisions allowing the disclosure of information to law enforcement agencies. The Treasury noted, however, that where the purpose of the disclosure is far removed from the purpose for which the information was collected, any provision allowing disclosure should be narrowly framed.[89]

ALRC’s views

7.82       The ALRC recognises the importance of allowing information to flow to law enforcement and regulatory agencies in appropriate circumstances. However, the disclosure of Commonwealth information for the purposes of law enforcement is not always appropriate, and may need to be finessed. For example, as discussed above, the Tax Laws Exposure Draft Bill proposes to allow the disclosure of taxpayer information to law enforcement agencies only for the enforcement of serious criminal offences. Because of this, such disclosures should be regulated at an agency level, based on agency-specific legislation, agency policies and guidelines and inter-agency MOUs, rather than a blanket exception in the general secrecy offence. On this basis, such disclosures would fall within the recommended exception for disclosure in the course of an officer’s duties and functions in the general offence.[90]

7.83       In addition, if it is not clear to a particular officer whether information should be passed on to a law enforcement agency, it would be possible, under the recommended general secrecy offence exceptions, to seek the agency head or minister’s authority to disclose the information.[91]

For use in legal proceedings

7.84       A number of secrecy offences expressly regulate the disclosure of Commonwealth information to courts. As discussed in Chapter 1, the disclosure of Commonwealth information for use in legal proceedings is not a focus of this Inquiry. In relation to the general secrecy offence, however, where appropriate, such disclosures could generally be made in the course of a Commonwealth officer’s functions or duties; or with the authority of the agency head or minister. Consequently, the ALRC does not recommend that an exception for the disclosure of information for use in legal proceedings be included as an express exception in the general secrecy offence.

With consent

7.85       As discussed in Chapter 3, some secrecy provisions provide an exception permitting the disclosure of information with the consent of the person to whom, or entity to which, the information relates.[92]

7.86       In contrast, the Tax Laws Exposure Draft Bill does not include consent as a defence for an otherwise unauthorised disclosure.[93] The Explanatory Material to the draft Bill states that:

This approach avoids issues of whether the consent is informed and voluntary (as opposed to, for instance, being a precondition for a particular good or service). This also recognises the fact that, if any entity requires the taxpayer’s information, the taxpayer is able to obtain that information and pass it on. Indeed, there is no prohibition on a taxation officer or a non-taxation officer in lawful receipt of taxpayer information from disclosing that information to the taxpayer and there are no limits on what a taxpayer may do with their own information. This will ensure that the taxpayer knows precisely what information is being provided.[94]

Submissions and consultations

7.87       The ATO suggested that there would be some administrative benefits if a taxpayer could consent to his or her information being released to a third party. For example, the ATO could provide information directly to banks to confirm taxpayers’ tax details.[95] A number of other agencies also expressed support for allowing disclosure with consent.[96] APRA noted that s 56 of the Australian Prudential Regulation Authority Act 1998 (Cth) (APRA Act) allowed the release of personal information with the consent of the individual to whom the information relates.[97]

7.88       In its submission, the AGD noted that:

It may be appropriate to permit disclosure of personal information with the consent of the person to whom the information relates. However, it would be important that the consent is expressly provided, voluntary and informed.The Treasury’s Discussion Paper contains a useful discussion about consent, noting concerns that taxpayers could be denied a service or good if they did not consent to the Tax Office providing their confidential information to the provider of that good or service. The Paper noted an alternative approach is to enable the taxpayer to obtain their confidential information from the Tax Office and provide the necessary information to the third party.[98]

7.89       ASIC expressed the view that a consent exception may be desirable under the ASIC Act, but noted that the exception would have to be limited so that it did not allow the disclosure of information that would harm other public interests, such as an ongoing investigation under the ASIC Act.[99]

ALRC’s views

7.90       Disclosure of Commonwealth information with the consent of the person to whom, or entity to which, the information relates is not appropriate in all circumstances. The information may be sensitive for other reasons—for example, it may be personal information about one individual that is relevant to an ongoing investigation into the criminal activities of another individual. For this reason, the ALRC is not recommending the inclusion of an exception for disclosure with consent in the new general secrecy offence.

7.91       Where it is desirable to allow release of information with consent, this should be made clear in agency-specific legislation or, so long as they are consistent with the relevant legislative framework, in agency policies and guidelines or inter-agency MOUs. In this way, disclosure with consent will fall within the exception provided in the general secrecy offence for disclosure in the course of a Commonwealth officer’s functions and duties.

A serious threat to a person’s life, health or safety

7.92       As discussed in Chapter 3, a number of secrecy provisions include an exception for disclosure where it is necessary to prevent or lessen a serious threat to a person’s life, health or safety. For example, s 16(3F) of the Customs Administration Act 1985 (Cth) provides that a person may disclose protected information:

if there are reasonable grounds for that person to believe that:

(a)  a serious and imminent threat to the health or life of a person or persons exists or might exist; and

(b)  it is necessary to carry out that act in order to avert or reduce that threat.

7.93       The Tax Laws Exposure Draft Bill proposes an exception for disclosure to a government agency where the disclosure is necessary to lessen or prevent a serious threat to an individual’s life, health or safety.[100] This exception reflects one of the exceptions in Information Privacy Principle 11 in the Privacy Act 1988 (Cth)—which regulates the disclosure of personal information by Australian Government agencies.[101]

7.94       The Explanatory Material to the Draft Bill states that:

The fact that there is a threat is not enough. The disclosure of the information must be necessary to prevent or lessen the threat. A taxation officer must therefore consider whether the disclosure will have any real impact on the threat or whether there are any alternatives, other than the disclosure of taxpayer information, that could achieve the same result.

A threat to life or health includes threats to safety and would include bushfires, industrial accidents and direct threats to individuals or groups. Health includes mental as well as physical health, although a threat of stress or anxiety would generally not be sufficient.[102]

7.95       Some secrecy provisions allow disclosure in an even wider range of circumstances. For example, s 16 of the Child Support (Registration and Collection) Act 1988 (Cth) allows the disclosure of protected information to any person, if the information concerns ‘a credible threat to the life, health or welfare of a person’ and the Registrar, or a person authorised by the Registrar, believes on reasonable grounds that the disclosure is necessary to prevent or lessen the threat.

7.96       The Criminal Code includes a defence of ‘sudden or extraordinary emergency’ where a person reasonably believes that:

(a)  circumstances of sudden or extraordinary emergency exist; and

(b)  committing the offence is the only reasonable way to deal with the emergency; and

(c)  the conduct is a reasonable response to the emergency.[103]

7.97       The Commonwealth Criminal Code: A Guide for Practitioners states that:

·            The emergency must be real or reasonably apprehended as real: The defence of sudden or extraordinary emergency is not available to a defendant who is unreasonably mistaken in apprehending a situation of emergency;

·            The emergency must be unavoidable by lesser means: The defence is barred unless commission of the offence was the only reasonable way to deal with the emergency;

·            The defendant’s response to the emergency must be reasonable in the circumstances: The defence is barred if commission of an offence was not a reasonable response to the emergency.[104]

7.98       The Code defence is a general defence that would be available in relation to the general secrecy offence and the subsequent disclosure offences.

Submissions and consultations

7.99       As noted above, the AGD suggested that the general secrecy offence should include an exception for disclosures to prevent serious and imminent threats to life or health.[105]

7.100   The DHS noted that:

[Commonwealth Rehabilitation Service] Australia’s provisions do not deal explicitly with situations where the disclosure of information might assist in a criminal investigation, or where disclosure is necessary to protect against an imminent threat to a person’s life or physical safety. Currently, disclosures must be made under a public interest certificate executed by a delegate within the Department of Education, Employment and Workplace Relations. Timeliness is an issue; for example, when a person departs CRS Australia premises having threatened suicide or imminent physical harm to another, including employees at a place they are about to visit, the current secrecy provision prevents CRS Australia from taking protective action until a DEEWR delegate approves the disclosure.[106]

7.101   DoHA was strongly of the view that the offence should include an express exception for disclosures necessary to prevent serious and imminent threats to life or health:

For example, in the interests of protecting public health in a crisis such as the recent Victorian bushfires the Department believes that there is a need for provisions thatallow competent authorities to exchange information that might otherwise be commercial-in-confidence to deal with the emergency.[107]

7.102   Whistleblowers Australia also expressed the view that the sudden or extraordinary emergency exception was not adequate to address the question of threats to life, health or safety.[108]

ALRC’s views

7.103   In the ALRC’s view, where a Commonwealth officer makes an unauthorised disclosure of Commonwealth information because it was necessary to prevent a serious and imminent threat to a person’s life or health, the officer should not be subject to criminal sanctions.

7.104   However, where such a threat exists, there are a number of existing options to deal with the situation. First, where there is sufficient time to do so, it would be possible to seek authorisation from the relevant agency head or minister.[109] As noted above, such authorisations do not have to be in writing, to facilitate disclosures where necessary in an emergency. The general secrecy offence only relates to information that has the potential to cause serious harm, including for example, endangering someone’s life. If there is sufficient time to consult an agency head or minister, and to consider the balance of interests involved at a senior level, this should be done.

7.105   In more extreme circumstances where there may not be time to seek permission for the disclosure, the Criminal Code defence of sudden or extraordinary emergency may be available. The defence would apply where a Commonwealth officer had a reasonable belief that a real threat exists—for example, the DHS example provided above where someone has left agency premises threatening to kill someone else—the disclosure of Commonwealth information is the only reasonable way to deal with the threat; and the disclosure is a reasonable response to the threat. Because the general secrecy offence only relates to information that has the potential to cause serious harm if disclosed, in the ALRC’s view, this defence provides an appropriate framework to allow disclosure in emergency situations, for example, where there is a serious and imminent threat to an individual’s life.

A serious threat to public health or public safety

7.106   The Tax Laws Exposure Draft Bill also proposes an exception for disclosure to a government agency where the disclosure is necessary to lessen or prevent a serious threat to public health or public safety.[110] The Explanatory Material states that:

Threats to public health or safety are those that have the potential to affect the public (both in Australia and overseas) more generally rather than just a specific individual or group of individuals. A possible outbreak of an infectious disease is one such example, and an example of where a threat to the public health or safety would be serious.[111]

ALRC’s views

7.107   The ALRC is not recommending that the general secrecy offence include an express exception for disclosures necessary to lessen or prevent a serious threat to public health or public safety. Where such disclosures do not fall within an officer’s functions and duties, it will be open to an officer to seek agency head or ministerial authorisation for disclosure.[112] The ALRC notes that such disclosures will sometimes fall within the ‘sudden or extraordinary emergency’ Criminal Code defence[113]—that is, where the officer reasonably believed that: there was a sudden or extraordinary public health or safety emergency; the disclosure was the only reasonable way to deal with the emergency; and the disclosure was a reasonable response to the emergency.

7.108   For the purposes of this Report, the ALRC is proceeding on the basis that the Australian Government will enact public interest disclosure legislation, as proposed in the House of Representatives Standing Committee on Legal and Constitutional Affairs (Standing Committee) report, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (the Whistleblower Protection report).[114] In the report, discussed in detail in Chapter 2, the Standing Committee recommended that public interest disclosure legislation should protect disclosures about serious matters, including dangers to public health or public safety. This includes disclosures made to the media, or other third parties, where the matter threatens immediate serious harm to public health or safety and has been disclosed to internal and external authorities, but has not been acted on in a reasonable time.[115] A person who made such a disclosure under the proposed public interest disclosure legislation would be protected from criminal liability, including liability under the general secrecy offence.

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

[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’.

[69]          Criminal Code (Cth) s 10.5.

[70]          Australian Government Attorney-General’s Department and the Australian Institute of Judicial Administration, The Commonwealth Criminal Code: A Guide for Practitioners (2002), 233.

[71]          Commonwealth Director of Public Prosecutions, Submission SR 17, 18 February 2009.

[72]          Recommendation 14–1.

[73]          Recommendation 15–1.

[74]          Recommendation 13–4.

[75]          See, eg, Environment Protection (Alligator Rivers Region) Act 1978 (Cth) s 31.

[76]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [4.19].

[77]          Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 item 1 cl 355-55(1) table item 1.

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

[79]          Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 item 1 cl 355-65(1) table 3 item 1.

[80]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [5.54].

[81]          Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 item 1 cl 355-70 (1)(c)(i).

[82]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [5.64].

[83]          Commonwealth Director of Public Prosecutions, Submission SR 17, 18 February 2009.

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

[85]          Department of Education, Employment and Workplace Relations, Submission SR 24, 19 February 2009.

[86]          Australian Federal Police, Submission SR 70, 14 August 2009; Commonwealth Director of Public Prosecutions, Submission SR 65, 13 August 2009.

[87]          Commonwealth Director of Public Prosecutions, Submission SR 17, 18 February 2009.

[88]          Attorney-General’s Department, Submission SR 67, 14 August 2009.

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

[90]         Recommendation 7–1(a).

[91]         Recommendation 7–1(b).

[92]         See, eg, Gene Technology Act 2000 (Cth) s 187(1)(f); Reserve Bank Act 1959 (Cth) s 79A(3); National Health Act 1953 (Cth) s 135A(8).

[93]          Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth).

[94]          Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [4.15].

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

[96]          Department of Human Services, Submission SR 26, 20 February 2009; Commonwealth Director of Public Prosecutions, Submission SR 17, 18 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

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

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

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

[100]         Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 item 1 cl 355-90.

[101]         The Tax Laws Exposure Draft Bill provision does not include a requirement that the threat be imminent In For Your Information: Australian Privacy Law and Practice (ALRC 108) the ALRC recommended that the privacy principles in the Privacy Act 1988 (Cth) should be amended to remove the requirement of ‘imminence’ and to allow the disclosure of personal information where necessary to lessen or prevent a serious threat to an individual’s life, health or safety: Rec 25–3.

[102]         Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [5.82]–[5.83].

[103]         Criminal Code (Cth) s 10.3.

[104]         Australian Government Attorney-General’s Department and the Australian Institute of Judicial Administration, The Commonwealth Criminal Code: A Guide for Practitioners (2002), 227.

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

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

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

[108]         Whistleblowers Australia, Submission SR 74, 17 August 2009.

[109]       Recommendation 7–1(b).

[110]         Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 item 1 cl 355-90.

[111]         Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [5.85].

[112]       Recommendation 7–1(b).

[113]       Criminal Code (Cth) s 10.3.

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

[115]         Ibid, Rec 21.