A new general offence

The ALRC’s key recommendation for reform is that the sanctions of the criminal law—in publicly punishing, deterring, and denouncing offending behaviour—should be reserved for behaviour that harms, is reasonably likely to harm or intended to harm essential public interests. The new general secrecy offence is limited to unauthorised disclosures that are likely to:

• damage the security, defence or international relations of the Commonwealth;
• prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
• endanger the life or physical safety of any person; or
• prejudice the protection of public safety.

In formulating a provision to target the protection of essential public interests, the ALRC was drawn to the idea that the general secrecy offence should complement the Freedom of Information Act 1982 (Cth) (FOI Act). The Australian Public Service Commissioner indicates in the APS Values and Code of Conduct in Practice that the exemptions in the FOI Act are a useful starting point in identifying information which, if disclosed, has the potential to prejudice the effective working of government.^[5] The ALRC has adopted the approach that a subset of the public interests identified in the FOI Act exemptions should inform the development of the public interests to be protected by the general secrecy offence.

The new offence, to be included in the Criminal Code, is intended to replace s 70 of the Crimes Act, and to apply to all Commonwealth information and all present and former Commonwealth officers.

The ALRC also recommends two offences for the subsequent disclosure of Commonwealth information by third parties, where the information was initially disclosed to that person in breach of the general secrecy offence or on terms requiring it to be held in confidence.

The ALRC recommends that there should be exceptions in the general secrecy offence for disclosure in the course of an officer’s functions or duties; disclosure with the authority of an agency head or minister; and disclosure of information that is already lawfully in the public domain. Protection from criminal liability under secrecy offences may also arise as a result of whistleblower legislation.