When are secrecy offences warranted?

8.3          A central aim of this Inquiry is to develop a principled approach to the imposition of criminal penalties for the unauthorised disclosure of Commonwealth information. Chapter 4 sets out the ALRC’s recommended framework for the regulation of individuals who handle government information. At its core, the framework reserves criminal penalties only for conduct that may cause harm to essential public interests.

8.4          In Chapter 5, the ALRC considers which public interests should be protected in the general secrecy offence, and recommends that the following categories be included:

  • ·                national security, defence and international relations of the Commonwealth;

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

  • ·                life or physical safety of any person; and

  • ·                protection of public safety.[2]

8.5          For the reasons discussed in Chapter 5, the ALRC considers that to warrant a criminal penalty, disclosures must harm more than the effective working of government or commercial or personal interests.

8.6          The same policy rationale should inform the consideration of specific secrecy offences. In order to be consistent with Australia’s international obligations, for a criminal offence to be committed, there should be a reasonable likelihood that the disclosure of the information will harm an essential public interest. Where no such harm is likely, the ALRC considers that other responses to the unauthorised disclosure of Commonwealth information are appropriate—including the imposition of administrative sanctions or the pursuit of contractual or general law remedies.

8.7          This chapter discusses how specific secrecy offences can be framed in order to ensure that they are targeted only to harmful conduct that warrants criminal sanction. The discussion compares two ways of confining secrecy provisions to appropriate harms: first, including an express requirement of harm in specific secrecy offences; and secondly, protecting certain categories of information in which the harm of disclosure may be implicit or not amenable to inclusion as an element in a criminal offence.

[2]           Recommendation 5–1.