Specific secrecy offences

The ALRC considers that the new general secrecy offence should not be the only criminal provision regulating the unauthorised disclosure of government information. There is still a need for specific secrecy offences tailored to the needs of particular agencies or to the protection of certain kinds of information. In the interests of consistency and simplification, the ALRC recommends a set of principles to guide the creation of new offences and the review of existing offences.

The key principle is that specific secrecy offences should only be enacted where necessary to protect a public interest of sufficient importance to justify the imposition of a criminal sanction. As a general rule, the ALRC considers that the best way to ensure this is to include an express requirement that the unauthorised disclosure of information caused, or was likely or intended to cause, harm to a specified public interest.

The ALRC recognises, however, that, in very limited circumstances, this may not always be the most effective way to address the harm caused by the disclosure of some kinds of information. For example, specific secrecy offences prohibiting the disclosure of information obtained or generated by intelligence agencies—without the need to prove harm in every case—are justified by the sensitive nature of the information and the special duties and responsibilities of officers and others who work in and with such agencies.

Further, in very limited cases, and where the category of information protected is narrowly defined, regulatory agencies—such as taxation and social security, and corporate regulators—may also be able to justify specific secrecy offences that do not include an express harm requirement. This is because the public interest harmed by the unauthorised disclosure of information held by such agencies—that is, harm to the relationship of trust between the government and individuals that is integral to effective regulatory systems and the provision of government services—is not concrete enough to prove beyond reasonable doubt in a criminal prosecution.

The ALRC has also developed other best practice principles in relation to specific secrecy offences, including that such offences should:

    • differ in significant and justifiable ways from the recommended general secrecy offence;

    • not extend to conduct other than the disclosure of information—such as making a record of, receiving, or possessing information—unless such conduct would cause, or is likely or intended to cause, harm to an essential public interest; and

    • specify penalties that reflect the seriousness of the potential harm caused by the unauthorised conduct and the criminal culpability of the offender.

While the primary focus of secrecy offences is to prohibit the disclosure of information, many secrecy provisions also include exceptions that set out the circumstances in which the disclosure of information is permitted. Such provisions often reflect the need for the government to share information. The ALRC also makes recommendations to ensure that specific secrecy offences are framed to facilitate appropriate information sharing, and are responsive to whole of government needs.