8.140 In Chapter 4, the ALRC sets out a principled basis for determining the circumstances in which the unauthorised disclosure of government information should attract criminal sanctions over and above any administrative penalties or general law remedies.
8.141 There are three parts to the application of this framework to specific secrecy offences. First, specific secrecy offences should be directed at preventing serious harm to essential public interests.
8.142 Secondly, where a secrecy offence is considered to protect a public interest of sufficient importance to justify the imposition of a criminal sanction, the government should consider the most appropriate way to frame the secrecy offence to ensure that it is confined to disclosures that cause, are likely to cause, or intended to cause, harm to a public interest. Sometimes, this will most effectively be achieved by including an express requirement that, for an offence to be committed, there must be a reasonable likelihood that the disclosure of information will cause harm to a specified public interest.
8.143 While an express requirement of harm is the best approach to ensure that secrecy offences are appropriately confined to disclosures that cause harm to the public interest, the ALRC recognises that, in very limited circumstances, this may not be the most effective way to address the harm caused by the disclosures of some kinds of information. This chapter has examined three key areas that stakeholders have suggested justify specific secrecy offences without an express requirement of harm, because of the sensitivity of the category of information or the needs of particular government agencies.
8.144 The ALRC has come to the view that specific secrecy provisions that govern intelligence agencies need not include an express requirement that a particular disclosure cause harm. These secrecy offences are directed to protecting the public interest in national security, and the information handled by these agencies is so sensitive that even isolated disclosures of seemingly innocuous information could cause harm.
8.145 Further, the ALRC considers that regulatory agencies, such as taxation, social security and health agencies, and regulatory and oversight bodies such as corporate regulators, need to strictly control disclosures of sensitive personal and commercial information provided to them by the public. For these agencies, the harm caused by the unauthorised disclosure of this information is not only harm to a person’s privacy or commercial interests, but harm to the relationship of trust between the government and individuals which is integral to an effective regulatory or taxation system, and the provision of government services. Because this harm may not be concrete enough to prove beyond reasonable doubt in a prosecution for a secrecy offence, the ALRC considers that secrecy offences that seek to protect this kind of information do not require an additional element that the disclosure caused harm.
8.146 Finally, to avoid unnecessary replication of the general secrecy offence, specific secrecy offences should differ in significant and justifiable ways from the recommended general secrecy offence. In other words, specific secrecy offences should be tailored to meet special circumstances not covered by the general secrecy offence—for example, where there is a need to protect an essential public interest that is not protected by the general offence.
8.147 Where there is no express requirement of harm to an essential public interest, or the secrecy offence is not necessary to protect the regulatory functions of government or other essential public interests, it may indicate that the specific secrecy offence is not directed to protecting against harms of the kind that warrant the imposition of criminal sanctions on the individual who discloses that information. Specific secrecy offences of this kind should be considered for repeal.
Recommendation 6–1 Specific secrecy offences are only warranted where they are necessary and proportionate to the protection of essential public interests of sufficient importance to justify criminal sanctions.
Recommendation 6–2 Specific secrecy offences should include an express requirement that, for an offence to be committed, the unauthorised disclosure caused, or was likely or intended to cause, harm to an identified essential public interest, except where:
(a) the offence covers a narrowly defined category of information and the harm to an essential public interest is implicit; or
(b) the harm is to the relationship of trust between individuals and the Australian Government integral to the regulatory functions of government.
Recommendation 6–3 Specific secrecy offences should differ in significant and justifiable ways from the recommended general secrecy offence.