Whose conduct should be regulated?

9.2          Specific secrecy offences currently criminalise the conduct of a range of parties, including:

  • ·                Commonwealth officers, whether by referring to all Commonwealth officers, or officers of specific agencies;[2]

  • ·                individuals providing services for or on behalf of the Commonwealth;[3]

  • ·                individuals engaged in federally funded or regulated areas of the private sector—for example, health service providers[4] and employees of financial institutions;[5]

  • ·                state, territory or local government employees;[6]

  • ·                individuals assisting in studies or inquiries;[7] or

  • ·                ‘any person’.[8]

9.3          Some secrecy offences also apply to more narrowly defined groups, such as Pharmaceutical Benefits Scheme prescribers,[9] participants in witness protection programs;[10] and legal practitioners representing persons involved in Australian Crime Commission (ACC) examinations.[11]

9.4          In Chapter 6, the ALRC recommends that the general secrecy offence should apply to current and former Commonwealth officers, which would include: individuals appointed or engaged under the Public Service Act 1999 (Cth); individuals employed by the Commonwealth otherwise than under the Public Service Act; individuals who hold or perform the duties of an office established by or under a law of the Commonwealth; officers or employees of Commonwealth authorities; individuals and entities who are contracted service providers under a Commonwealth contract; and individuals who exercise powers, or perform functions, conferred on them by or under a law of the Commonwealth.[12]

9.5          Many existing specific secrecy offences apply to parties other than Commonwealth officers. Therefore, it will be necessary in some circumstances for specific secrecy offences to regulate the conduct of persons other than Commonwealth officers.

9.6          The following section discusses two issues relating to the parties covered by specific secrecy offences—the application of secrecy offences to ‘any person’; and the extension of secrecy offences to former, as well as current, Commonwealth officers.

Secrecy offences that apply to ‘any person’

9.7          More than 40% of secrecy offences are stated to apply to the handling of information by ‘any person’.

9.8          Some specific secrecy offences apply to any person because the information is highly sensitive. For example, the Intelligence Services Act 2001 (Cth) contains an offence applicable to any person who identifies someone else as being or having been an agent or staff member of the Australian Secret Intelligence Service or who makes public any information from which the identity of such a person could reasonably be inferred, or that could reasonably lead to the identity of such a person being established.[13] The Australian Security Intelligence Organisation Act 1979 (Cth) contains a similar offence for the disclosure of the identity of an officer of the Australian Security Intelligence Organisation (ASIO).[14] The disclosure of this information could compromise the operations, capabilities and effectiveness of Australia’s intelligence, and potentially endanger the life and wellbeing of officers.[15]

9.9          In some instances, secrecy provisions cover any person because the legislation confers a discretion on a Commonwealth officer (usually an agency head) to disclose protected information to, potentially, any person. For example, s 86-5 of the Aged Care Act 1997 (Cth) makes it an offence for a person to subsequently disclose information obtained under s 86-3 for a purpose other than that for which the information was disclosed. Section 86-3 permits the Secretary to disclose protected information to a number of people, including:

(a)          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; and …

(e)          if the Secretary believes, on reasonable grounds, that disclosure is necessary to prevent or lessen a serious risk to the safety, health or well-being of a care recipient—to such people as the Secretary determines, for the purpose of preventing or lessening the risk.

9.10       Other secrecy offences are expressed to cover any person present at an examination, or, for example, subject to a confidentiality order issued by an authority.[16] In addition, secrecy provisions that create ancillary offences such as soliciting, obtaining or offering to supply protected information usually cover any person, again reflecting the fact that any person can engage in this kind of conduct.[17]

9.11       There are, however, some offences that, although expressed to apply to any person, may in practice apply only to Commonwealth officers. For example:

  • ·                Development Allowance Authority Act 1992 (Cth) s 114 is expressed to apply to ‘a person’ who has commercial-in-confidence information ‘only because of performing duties or functions’ under the Act;

  • ·                Student Assistance Act 1973 (Cth) s 351is expressed to apply to ‘a person’, but the information protected by the offence is limited to information obtained for the purposes of certain legislation and held in the records of specific agencies;[18] and

  • ·                Agricultural and Veterinary Chemicals Code Regulations 1995 (Cth) reg 69 is expressed to apply to ‘a person’, but the information protected by the offence is limited to records made and held by the Australian Pesticides and Veterinary Medicines Authority, a Commonwealth body.

9.12       In the Discussion Paper, Review of Secrecy Laws (DP 74), the ALRC noted that the language used in some secrecy offences, and the practical context in which they operate, mean that the offences will apply mainly to Commonwealth officers—even if the offences are stated to apply to any person.[19] The ALRC proposed that specific secrecy offences that are stated to apply to ‘any person’ should be reviewed to establish whether the offences should apply only to ‘Commonwealth officers’, as defined in the general secrecy offence, leaving other parties to be governed by the proposed general subsequent disclosure offence.[20]

Submissions and consultations

9.13       Civil liberties groups supported the proposal to review specific secrecy provisions that apply to ‘any person’.[21] For example, Civil Liberties Australia (CLA) considered that the application of some secrecy offences ‘casts too wide a net’, and that:

The duties of Commonwealth officers are entirely different to ordinary citizens and CLA advocates the restriction of most specific secrecy provisions to Commonwealth officers.[22]

9.14       However, the Australian Government Attorney-General’s Department (AGD) noted that in the report, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that information should be protected at every point in the ‘distribution chain’, including where that information is handled outside the Commonwealth public sector.[23] The AGD submitted that:

There is an increasing incidence of information sharing among Commonwealth departments and agencies, as well as with state and territory governments and the private sector. There is a recognised, legitimate need for certain Commonwealth information to be protected through the use of criminal law offences. Accordingly, it would seem appropriate for criminal sanctions to be available to protect sensitive Commonwealth information when it leaves the hands of Commonwealth officers. AGD considers that there is a gap in the protection provided under Commonwealth criminal law to Commonwealth information when it is shared outside of the Commonwealth.[24]

9.15       Many Australian Government agencies explained why particular secrecy offences needed to apply to parties other than Commonwealth officers.[25] For example, in response to the Issues Paper, Review of Secrecy Laws (IP 34),[26] the Department of Human Services (DHS) submitted that it is important that persons other than Commonwealth officers, including individuals in state governments, non-government organisations and the private sector who handle customer information,

appreciate the personal nature of their obligation to protect the confidentiality of a range of information entrusted to the agency. A secrecy provision that creates an offence applying directly to individual employees is an effective tool for reinforcing this message.[27]

9.16       The DHS noted that, while the Public Service Act provides ‘a mechanism for holding individual Australian Public Service employees responsible for their behaviour, including unlawful dealing with information’, the Act

does not apply to other people who may come into possession of sensitive information (for example, [contracted service providers] and their employees, ministerial staff, State, NGOs and private sector partners and those who receive information in error).[28]

9.17       The Australian Taxation Office (ATO) also emphasised the importance of secrecy offences in regulating ‘all persons who come into contact with protected information in the course of their employment or in performing services for the Commonwealth’.[29]

9.18       The Australian Transaction Reports and Analysis Centre (AUSTRAC) explained that it was important for secrecy offences in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) to regulate a wider range of people than Commonwealth officers:

The secrecy provisions of the AML/CTF Act regulate the disclosure of AUSTRAC information by Commonwealth officers, state and territory government officials and persons, and reporting entities in respect to suspicious matter reports. AUSTRAC believes that it is important that state and territory government officials that have access to AUSTRAC information should be subject to the same provisions as Commonwealth officers, as it is the nature of the information that causes harm rather than the source of the disclosure.[30]

9.19       Similarly, the ACC stated that:

sanctions for breach of secrecy/confidentiality requirements under the ACC Act need to extend to a range of non-Commonwealth figures, including State/Territory participants in ACC task forces and witnesses at ACC examinations, if they are to operate effectively.[31]

9.20       The ACC also provided the example of non-publication directions issued to people present during ACC examinations, such as ACC personnel, witnesses and their legal representatives.[32] The ACC noted that secrecy provisions of this kind needed to cover any person, ‘since disclosure of the substance of an examination by a witness may be as harmful as disclosure by a law enforcement officer’.[33]

9.21     The Treasury submitted that ‘secrecy provisions should be drafted in a manner that, as clearly as possible, identifies the group of people whose actions that particular secrecy provision seeks to control’.[34] The Treasury explained the approach taken in the proposed new tax secrecy laws:[35]

In the Tax Secrecy Bill, the first of three offence provisions is clearly defined to apply to ‘taxation officers’ (effectively a subset of the proposed definition of ‘Commonwealth officers’). The offence provision dealing with those entities that are in receipt of information as a consequence of a breach of the law, in our view, correctly refers to all entities (recognising that there are effectively no bounds on the types of entities that can be in receipt of information unlawfully). With respect to the ‘lawful’ on-disclosure offence provision … this also refers broadly to ‘other people’ (while most lawful recipients of taxpayer information will be other Commonwealth officers this will not always be the case—notably, tax secrecy provisions permit the disclosure of information to state and territory tax officers).[36]

ALRC’s views

9.22     The ALRC recognises that, in some cases, a secrecy offence may need to apply to any person—for example, where ‘any person’ could receive protected information, or be subject to a confidentiality order.However, where a specific secrecy offence applies expressly or in practice only to Commonwealth officers, as defined for the purposes of the general secrecy offence, the Australian Government should consider whether it would be sufficient to rely on the recommended general secrecy offence. In addition, where a specific secrecy offence regulates the behaviour of individuals other than Commonwealth officers, the provision should be drafted so as to clearly identify the regulated group.

Recommendation 6–1               Specific secrecy offences that apply to individuals other than Commonwealth officers should clearly identify the parties regulated by the offence.

Former Commonwealth officers

9.23       Approximately 65% of specific secrecy offences that regulate Commonwealth officers also apply to former Commonwealth officers. This is most commonly done by specifying that the offence applies to a person who is, or has been, an officer or employee of a particular agency.[37]

9.24       The application of s 70 of the Crimes Act 1914 (Cth)may also extend the application of statutory secrecy provisions to former officers. For example, s 30A(1) of the Archives Act 1983 (Cth) provides that:

An Archives officer must not, at any time before a record containing Census information from a Census is in the open access period for that Census, divulge or communicate any of that information to another person (except to another Archives officer for the purposes of, or in connection with, the performance of that other officer’s duties under this Act).

9.25       Although this section does not expressly refer to both current and former Archives officers, a note to s 30A(1) draws attention to the criminal offence created by s 70 of the Crimes Act in relation to the disclosure of information by those who are, or have been, Commonwealth officers. Section 30A of the Archives Act imposes a duty on current Archives officers who are engaged under the Public Service Act[38] and therefore fall within the definition of ‘Commonwealth officer’ in s 3 of the Crimes Act. The effect of s 70 is to create an offence for both current and former Archives officers who publish or communicate ‘any fact of document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose’¾in this case, census information that is not in the open access period¾without lawful authority or excuse.

9.26       The recommended general secrecy offence covers former as well as current Commonwealth officers.[39] In DP 74, the ALRC proposed that specific secrecy offences that apply to Commonwealth officers should be reviewed to establish whether the offences should apply to both former and current Commonwealth officers.[40]

Submissions and consultations

9.27       Those stakeholders who commented on this proposal supported such a review,[41] echoing submissions made in response to IP 34 that specific secrecy offences should generally extend to former Commonwealth officers.[42] The Australian Prudential Regulation Authority (APRA) summarised some reasons for ensuring that secrecy offences cover former officers:

Former officers may no longer be bound by duties of confidentiality contained in employment agreements and therefore a statutory secrecy provision may often be the only means of protecting the disclosure of information that the person had access to during their employment …

In APRA’s case, staff who leave the agency may do so to take up employment with a financial sector entity, and in these circumstances it is particularly important that information they have obtained during the course of their employment with APRA be kept secret.[43]

9.28       Similarly, the ATO commented that, in the taxation context, it is necessary to regulate former officers so that taxation information remains protected even when the person ceases to be a taxation officer.[44]

9.29       As noted by the ACC:

Although time may reduce the potential for disclosures by a former officer to prejudice public interests, it would normally be appropriate to protect such interests by making secrecy provisions applicable to former Commonwealth officers.[45]

ALRC’s views

9.30       The ALRC considers that specific secrecy offences should generally cover both former and current Commonwealth officers. Covering former officers in specific secrecy offences is particularly important because there is no administrative disciplinary framework applicable to them.[46]

9.31       In Chapter 4, the ALRC recommends that s 70 of the Crimes Act be repealed and replaced with a new general secrecy offence. Unlike s 70, the recommended new secrecy offence would not operate to extend specific secrecy offences to former Commonwealth officers, as discussed above. If s 70 of the Crimes Act is repealed, it will be necessary for those specific secrecy offences to be amended to apply expressly to both current and former officers.

9.32       This recommendation may, in some cases, represent an extension of the circumstances in which a person who discloses government information is subject to criminal sanction. The ALRC notes, however, that the majority of specific secrecy offences applicable to Commonwealth officers apply to both former and current officers. In addition, this recommendation must be considered in the context of the other recommendations in this Report intended to ensure that specific secrecy offences are retained or enacted only where disclosures are reasonably likely to cause harm to essential public interests.[47]

Recommendation 6–2               Specific secrecy offences that apply to Commonwealth officers should also apply to former Commonwealth officers.

[1]           Recommendation 8–3.

[2]           See, eg, Australian Postal Corporation Act 1989 (Cth) ss 90H, 90LB apply to ‘employees of Australia Post’; Customs Administration Act 1985 (Cth) s 16 applies to ‘a person performing duties in the Australian Customs Service as a person employed or engaged by the Commonwealth, a Commonwealth agency, a State or a State agency’; Income Tax Assessment Act 1936 (Cth) s 16 applies to ‘a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax’.

[3]           See, eg, Australian Sports Anti-Doping Authority Act 2006 (Cth) s 69 (definition of ‘entrusted person’), s 72; Australian Trade Commission Act 1985 (Cth) s 62 (definition of ‘consultant’), s 94.

[4]           See, eg, National Health Act 1953 (Cth) s 135AAA.

[5]           See, eg, Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 123.

[6]           See, eg,  Taxation Administration Act 1953 (Cth) s 13J.

[7]           See, eg, Inspector of Transport Security Act 2006 (Cth) s 35(7); Epidemiological Studies (Confidentiality) Act 1981 (Cth) s 4.

[8]           See, eg, Aged Care Act 1997 (Cth) s 86-5; Crimes Act 1914 (Cth) s 3ZQT.

[9]           National Health Act 1953 (Cth) s 135AAA(1).

[10]         Witness Protection Act 1994 (Cth) s 22(2).

[11]         Australian Crime Commission Act 2002 (Cth) s 29B(4).

[12]         Recommendation 6–1.

[13]         Intelligence Services Act 2001 (Cth) s 41.

[14]         Australian Security Intelligence Organisation Act 1979 (Cth) s 92(1).

[15]         Australian Intelligence Community, Submission SR 37, 6 March 2009.

[16]         See, eg, Law Enforcement Integrity Commissioner Act 2006 (Cth) s 90; Maritime Transport and Offshore Facilities Security Act 2003 (Cth) s 40; Productivity Commission Act 1998 (Cth) s 53.

[17]         See, eg, Social Security (Administration) Act 1999 (Cth) ss 205, 206;  Health Insurance Act 1973 (Cth) s 130(14), (21); Child Care Act 1972 (Cth) ss 12K, 12Q. Conduct covered by secrecy offences is discussed later in this chapter.

[18]         Student Assistance Act 1973 (Cth) ss 353, 3(1) (definition of ‘protected information’).

[19]         Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), [10.79].

[20]         Ibid, Proposal 10–3. The general secrecy offence is discussed in Chs 5, 6 and 7, while subsequent disclosure offences are discussed in Ch 6.

[21]         Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

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

[23]         Attorney-General’s Department, Submission SR 67, 14 August 2009; Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, In Confidence: A Report of the Inquiry into the Protection of Confidential Personal and Commercial Information Held by the Commonwealth (1995), [7.11.7].

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

[25]         See, eg, Australian Crime Commission, Submission SR 75, 19 August 2009; Australian Transaction Reports and Analysis Centre, Submission SR 73, 17 August 2009; Australian Taxation Office, Submission SR 55, 7 August 2009; Australian Transaction Reports and Analysis Centre, Submission SR 31, 2 March 2009; Department of Human Services, Submission SR 26, 20 February 2009; Australian Taxation Office, Submission SR 13, 16 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

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

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

[28]         Ibid.

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

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

[31]         Australian Crime Commission, Submission SR 75, 19 August 2009.

[32]         Australian Crime Commission Act 2002 (Cth) s 25A(9).

[33]         Australian Crime Commission, Submission SR 75, 19 August 2009.

[34]         The Treasury, Submission SR 60, 10 August 2009.

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

[36]         The Treasury, Submission SR 60, 10 August 2009.

[37]         See, eg, AusCheck Act 2007 (Cth) s 15; Australian Prudential Regulation Authority Act 1998 (Cth) s 56(2); Environment Protection (Alligator Rivers Region) Act 1978 (Cth) s 31(1).

[38]         Archives Act 1983 (Cth) s 9.

[39]         Recommendation 6–1.

[40]         Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74 (2009), Proposal
10–4.

[41]         Department of Health and Ageing, Submission SR 81, 28 August 2009; Liberty Victoria, Submission SR 50, 5 August 2009; Civil Liberties Australia, Submission SR 47, 27 July 2009.

[42]         Australian Intelligence Community, Submission SR 37, 6 March 2009; NSW Young Lawyers Human Rights Committee, Submission SR 34, 4 March 2009; Department of Human Services, Submission SR 26, 20 February 2009; Department of Education, Employment and Workplace Relations, Submission SR 24, 19 February 2009; The Treasury, Submission SR 22, 19 February 2009; Australian Taxation Office, Submission SR 13, 16 February 2009; Australian Prudential Regulation Authority, Submission SR 12, 13 February 2009.

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

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

[45]         Australian Crime Commission, Submission SR 75, 19 August 2009.

[46]         The protection of information held by former Commonwealth officers is discussed in Ch 13.

[47]         As defined,  Ch 1, essential public interests are those that are sufficiently significant to warrant protection through criminal secrecy offences.